Rights upon release from custody
NEW SECTION. Section 1. No person may be deprived of a
constitutionally-reserved right, or have such right curtailed, as a
condition of release from custody, unless justified because abuse of
that particular right was an element of the offense for which the
person has been in custody or of which a person has been accused.
NEW SECTION. Section 2. This policy is intended to
occupy and control if in conflict with policy created by any other
statute, by case law, by judicial custom, or any other source.
(Note: See Nelson dissent in State V. Cooksey)
NEW SECTION. Section 3. Definitions. As used
herein, the following definitions apply:
a. “Constitutionally-reserved right” includes but is not
limited to those which are articulated and memorialized in Article
II of the Montana Constitution or which are reserved under the
United States Constitution Bill of Rights.
b. “Release from custody” means release from any
state-sanctioned custody of a person by the state or any political
subdivision thereof, including release because of:
1) Release from arrest under bail or otherwise;
2) deferred prosecution;
5) plea bargain agreement;
7) any other release of a person from lawful custody.
c. An “element of the offense” means: Abuse of a
particular right was an active component of the offense of which the
person is accused.
d. “Justified” means : There is some reasonable and
articulated belief that the accused is likely to exercise the right
in a way that would injure another person or violate the laws unless
such exercise is prohibited. An articulated belief must be
supported by evidence. It is sufficient to substantiate such
belief if violence or threat of use of force was an element of the
offense of which the person is accused, or if abuse of alcohol or
drugs was an element of the offense of which the person is accused.