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;
3) parole;
4) pardon;
5) plea bargain agreement;
6) sentence;
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.