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title-46•Title 46 — Militia and Military Affairs
Idaho Code, published by the Idaho Legislative Services Office. Idaho Statutes are updated to the website July 1 following the legislative session.
The state of Idaho does hereby accept the benefits and provisions of the national defense act, and it is the intent of this code to conform to all laws and regulations of the United States affecting the national guard.
DEFINITIONS. –As used in this code:
(a) "National guard" means the Idaho army national guard and the Idaho air national guard.
(b) "National defense act" means the federal law for making further and more effective provisions for the national defense and for other purposes approved June 3, 1916, (Title 32, United States Code) and any and all other acts that have been or may hereafter be enacted amendatory thereof and supplementary thereto.
(c) "Uniform code of military justice" means the law for the disciplining of the armed forces of the United States (Chapter 47, Title 10, United States Code).
(d) "Officer" means commissioned officers and warrant officers.
[(46-101) 1927, ch. 261, sec. 1, p. 510; I.C.A., sec. 45-101; am. 1957, ch. 174, sec. 1, p. 312.]
The militia of the state of Idaho shall consist of all able-bodied citizens of the state, and all other able-bodied persons who have or shall have declared their intentions to become citizens of the United States and are residents of the state of Idaho; who shall be more than eighteen (18) years of age, and except as hereinafter provided, not more than forty-five (45) years of age, subject to the following exemptions:
[(46-102) 1927, ch. 261, sec. 2, p. 510; I.C.A., sec. 45-102; am. 1943, ch. 46, sec. 1, p. 92; am. 2008, ch. 126, sec. 1, p. 346.]
The militia of the state of Idaho shall be divided into three (3) classes, to wit:
The national guard, the organized militia, and the unorganized militia. The national guard shall consist of enlisted personnel between the ages of seventeen (17) and sixty-four (64), organized and equipped and armed as provided in the national defense act, and of commissioned officers between the ages of eighteen (18)and sixty-four (64) years, who shall be appointed and commissioned by the governor as commander-in-chief, in conformity with the provisions of the national defense act, the rules and regulations promulgated thereunder, and as authorized by the provisions of this act. The organized militia shall include any portion of the unorganized militia called into service by the governor, and not federally recognized. The unorganized militia shall include all of the militia of the state of Idaho not included in the national guard or the organized militia.
[(46-103) 1927, ch. 261, sec. 3, p. 510; I.C.A., sec. 45-103; am. 1957, ch. 174, sec. 2, p. 312.]
Whenever the governor deems it necessary he may order a registration under such regulations as he may prescribe, to be made by the assessors of the various counties of this state, of all persons resident in their respective counties and liable to serve in the militia. Such registration shall be on blanks furnished by the adjutant general, and shall state the name, residence, age and occupation of the person registered and their military service.
If any assessor wilfully refuses or neglects to perform any duty which may be required of him by the governor under the authority of this chapter, he shall be deemed guilty of a misdemeanor and, on conviction thereof, he shall be fined in a sum of not less than $300.00 nor more than $800.00.
[(46-104) 1927, ch. 261, sec. 7, p. 510; I.C.A., sec. 45-104; am. 1957, ch. 174, sec. 3, p. 312.]
Whenever the governor as commander-in-chief, shall call into the active service of the state the unorganized militia or any part thereof, it shall be organized into such units and shall be armed and equipped in such manner as the governor in his discretion shall deem proper. The officers thereof, shall be appointed and commissioned by the governor under such rules and regulations as he may deem expedient to promulgate.
[(46-106) 1927, ch. 261, sec. 9, p. 510; I.C.A., sec. 45-106; am. 1957, ch. 174, sec. 5, p. 312.]
The governor is authorized and it shall be his duty from time to time to make and publish such orders as may be necessary to conform the national guard in organization, armament and discipline, and otherwise, to that prescribed and authorized by the national defense act and other laws of the United States and the regulations issued thereunder for the national guard.
[(46-107) 1927, ch. 261, sec. 10, p. 510; I.C.A., sec. 45-107; am. 1939, ch. 50, sec. 1, p. 91; am. 1957, ch. 174, sec. 6, p. 312.]
The governor shall appoint with the advice and approval of the adjutant general, a property and fiscal officer who shall be selected from the national guard of Idaho and shall have had commissioned service therein for over three (3) years.
[(46-108) 1927, ch. 261, sec. 11, p. 510; I.C.A., sec. 45-108; am. 1957, ch. 174, sec. 7, p. 312.]
The composition of all units of the national guard including the commissioned personnel thereof, other than that specifically provided for in this act, shall be fixed from time to time by the governor as commander-in-chief, and shall be announced in general orders, and shall be in accordance with federal laws and regulations pertaining to the national guard. Every order shall have the same force and effect as if specifically enacted and provided for by the statute.
[(46-109) 1927, ch. 261, sec. 13, p. 510; I.C.A., sec. 45-109; am. 1957, ch. 174, sec. 8, p. 312.]
The governor of the state by virtue of his office, shall be commander-in-chief of the national guard, except of such thereof, as may be at times in the service of the United States. No armed military force from another state, territory or district shall be permitted to enter the state of Idaho for the purpose of doing military duty therein, without the permission of the governor, unless such force has been called into active service of the United States, and is acting under authority of the president of the United States.
[(46-110) 1927, ch. 261, sec. 14, p. 510; I.C.A., sec. 45-110; am. 1957, ch. 174, sec. 9, p. 312.]
There shall be an adjutant general who shall be appointed by the governor and shall hold office during the pleasure of the governor and his commission shall expire with the term of the governor appointing him. The adjutant general shall be the commanding general of the military forces of the state and in addition to the duties delegated to him by law, he shall perform such other duties as prescribed by the governor as commander-in-chief. The adjutant general shall be commissioned in the national guard with the rank of not less than brigadier general. No person is eligible for appointment as adjutant general unless he is a federally recognized member of the national guard with current service of not less than six (6) years as a commissioned officer in the national guard of Idaho and has attained the rank of colonel or above.
[(46-111) 1927, ch. 261, sec. 18, p. 510; am. 1931, ch. 186, sec. 1, p. 310; I.C.A., sec. 45-111; am. 1957, ch. 174, sec. 10, p. 312; am. 1987, ch. 330, sec. 1, p. 690; am. 2001, ch. 141, sec. 1, p. 507.]
(1) The adjutant general shall serve as head of the Idaho military division. The governor, as commander-in-chief, pursuant to his or her authority under section 4, article IV, of the constitution of the state of Idaho, shall administer and control the national guard, as that term is defined in section 46-103, Idaho Code. The adjutant general is responsible to the governor for the execution and publication of all orders relating to the militia, organization, activation, reactivation, inactivation, and allocation of units, recruiting of personnel, public relations, discipline, and training of the national guard and those members of the militia inducted into the service of this state as provided in this chapter. The adjutant general shall act as military chief of staff to the governor and chief of all branches of the militia or agencies within the Idaho military division. The adjutant general may belong to the adjutants general association of the United States and to other organizations for the betterment of the national guard, subscribe to and obtain periodicals, literature, and magazines of such other organizations and pay dues and charges from moneys of this state appropriated for that purpose. Except for the authority expressly reserved for the governor under Idaho law, the adjutant general is responsible for emergency management pursuant to chapter 10, title 46, Idaho Code, and all emergency activities undertaken pursuant to chapter 10, title 46, Idaho Code, are subject to the approval of the adjutant general.
(2) The adjutant general, as the military chief of staff, will:
(a) Act as military advisor to the governor and perform, as the governor prescribes, military duties not otherwise designated by law;
(b) Adopt methods of administration for the national guard that are consistent with laws and regulations of the United States department of defense or any subdivision of the United States department of defense;
(c) Supervise and direct the organization, regulation, instruction, training, discipline, and other activities of the national guard;
(d) Attest and record all commissions issued by the governor and maintain a register of all commissioned personnel;
(e) Keep a record of all orders and regulations pertaining to the national guard and all other writings and papers relating to reports and returns of units comprising the national guard and militia, and act as custodian of all such orders, regulations, writings, papers, and returns;
(f) Superintend the preparation of returns, plans and estimates required by this state, by the department of the army, air force, navy and by the secretary of defense;
(g) Control the use of and care for, preserve and maintain all military property belonging to or issued to this state and pay from moneys appropriated by the state legislature, or allocated to the state from the federal government for these purposes, the necessary expenses for labor and material incurred in the repair of military property;
(h) Dispose of unserviceable military property belonging to this state, in accordance with applicable federal and state laws and regulations;
(i) Pay the members of the national guard when such members are to be paid from state funds, and ensure that the members of the national guard receive pay when such members are to be paid with funds allocated by the federal government;
(j) Be custodian of the seal of the office of adjutant general and deliver the same to his successor, and authenticate with the seal of the office of the adjutant general all orders and copies of orders issued by the adjutant general’s office. An authenticated copy has the same force and effect as the original;
(k) Present to the governor before each regular session of the legislature, or as otherwise required, an estimate of the financial requirements for state moneys for operation of the department and the national guard during the next fiscal year, in accordance with section 67-3502, Idaho Code;
(l) Coordinate and plan the execution of state activities pertaining to the inauguration of the governor of the state of Idaho and other elected state executive officers; and
(m) Establish and administer, as in his or her judgment may be necessary and proper for military purposes, morale, welfare, and recreation programs or facilities for the benefit of the members of the Idaho military division and their lawful dependents. The adjutant general may promulgate rules to govern the operation of morale, welfare, and recreation programs or facilities. All proceeds derived from the operation of morale, welfare, and recreation programs or facilities within the state shall, after payment of operating expenses, notwithstanding any provision of Idaho law to the contrary, be used exclusively to benefit any morale, welfare, and recreation programs or facilities established pursuant to this section. Any sales of goods on a state reservation, state training facility, or state military installation under the jurisdiction of the adjutant general are exempt from payment of state sales taxes.
(3) The adjutant general, as head of the Idaho military division, will:
(a) Be the administrator of the division;
(b) Coordinate the functions of the division and offices of the division;
(c) Subject to Idaho law, appoint, suspend, demote, promote or dismiss employees of the division. The adjutant general may delegate this authority;
(d) Appoint an auditor for the division to conduct periodic financial and compliance audits of each office in the division and perform such other duties as prescribed by law. At least annually, the auditor shall audit accounts that are open for more than twelve (12) months. The auditor shall determine within the division compliance with purchase and bidding procedures prescribed by law;
(e) Adopt, with the approval of the governor, rules necessary for the operation of the Idaho military division;
(f) Establish and administer accounts for federal, state or other moneys made available to carry out the functions of the division;
(g) Establish, abolish or reorganize the positions or organizational structure within the Idaho military division, subject to legislative appropriation, if, in the adjutant general’s judgment, the modification would make the operation of the division more efficient, effective or economical;
(h) Administer the Idaho youth challenge program in accordance with section 46-805, Idaho Code. In addition to moneys appropriated for the program, the adjutant general may accept and spend moneys from any other lawful public or private source; and
(i) Submit to the governor, the president of the senate and the speaker of the house of representatives annually by July 1 a report for the Idaho military division for the preceding fiscal year, including: the strength and condition of the national guard; the business transactions of the division; a detailed statement of expenditures for all military and civilian purposes; the disposition of all military and civilian property on hand or issued; a description of the activity of the Idaho youth challenge program; and a detailed statement of the national guard tuition incentive payments program pursuant to section 46-314, Idaho Code. The adjutant general will also submit any such similar returns and reports as may be required by federal laws and regulations.
(4) The adjutant general, subject only to applicable limitations prescribed under state law or rule, may:
(a) Enter into contracts with individuals, this state, political subdivisions of this state or the federal government and its agencies for the purchase, acquisition, rental or lease of lands, buildings or military material and take title in the name of this state for the establishment and maintenance of armories, subject to legislative appropriation for these purposes;
(b) Procure and contract for procurement of equipment and its issuance to members of the militia inducted into the service of this state;
(c) Enter into agreements and plans with the state universities, community colleges or any educational institution supported by federal or state moneys for promotion of the best interests of the national guard and military training of students of the institutions;
(d) Lease property acquired under this chapter for any public purpose for a period of one (1) year, which period is renewable;
(e) Convey for any public purpose in the name of this state easements on real property acquired under this chapter;
(f) Enter into contracts or agreements with the federal government that are deemed to be in the best interest of this state and the national guard;
(g) Delegate the powers and duties in this section; and
(h) Adopt methods of security for national guard personnel and for national guard reservations or facilities that are consistent with the laws, regulations or directives of the United States department of defense and the laws of this state.
[46-112, added 2016, ch. 205, sec. 2, p. 575.]
There shall be two (2) assistant adjutants general who shall be appointed by and serve at the pleasure of the adjutant general.
(a) One (1) of the assistant adjutants general shall be appointed from the Idaho army national guard and may be chief of staff to the adjutant general for all the Idaho army national guard forces. He shall perform such duties as are assigned to him by the adjutant general. No person shall be eligible for appointment as assistant adjutant general under this subsection unless he is a member of the Idaho army national guard with at least six (6) years service as commissioned officer therein and has attained the rank of major or above. He shall be a federally recognized officer and may hold the rank of brigadier general or such other rank as may hereafter be authorized by the table of organization for the army national guard.
(b) The other assistant adjutant general shall be appointed from the Idaho air national guard and may be chief of staff to the adjutant general for all the Idaho air national guard forces. He shall perform such duties as are assigned to him by the adjutant general. No person shall be eligible for appointment as assistant adjutant general under this subsection unless he is a member of the Idaho air national guard with at least six (6) years service as a commissioned officer therein and has attained the rank of major or above. He shall be a federally recognized officer and may hold the rank of brigadier general or such other rank as may hereafter be authorized by the tables of organization for the air national guard.
(c) In the event of the absence or inability of the adjutant general to perform his duties, he shall designate one (1) of the assistant adjutants general to perform the duties of his office as acting adjutant general. If neither assistant adjutant general is available, he may designate any national guard officer to be the acting adjutant general.
[(46-113) 1927, ch. 261, sec. 20, p. 510; am. 1931, ch. 186, sec. 2, p. 310; I.C.A., sec. 45-113; am. 1939, ch. 50, sec. 2, p. 91; am. 1957, ch. 174, sec. 12, p. 312; am. 1978, ch. 54, sec. 1, p. 101; am. 1989, ch. 354, sec. 1, p. 896; am. 1998, ch. 116, sec. 1, p. 432.]
The governor is hereby authorized to appoint officers and warrant officers in such numbers and in such grades, and to cause to be enlisted such numbers of enlisted personnel and airmen in the army and air national guard of this state, as are authorized by the secretary of defense, under the national defense act and the rules and regulations promulgated thereunder.
[(46-201) 1927, ch. 261, sec. 21, p. 510; I.C.A., sec. 45-201; am. 1957, ch. 174, sec. 15, p. 312.]
All commissioned officers shall be appointed by the governor as commander in chief and be commissioned according to the grade in the department, corps, or arm of the service in which they are appointed and shall be assigned to duty by the commander in chief. They shall take and subscribe to the following oath:
"I…. do solemnly swear (or affirm) that I will support and defend the constitution of the United States and the constitution of the state of Idaho against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will obey orders of the president of the United States and the governor of the state of Idaho, that I make this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office of…. in the national guard of the state of Idaho upon which I am about to enter, so help me God."
The appointment of officers in the national guard shall be temporary until such appointees shall have been federally recognized under the provisions of the national defense act. Any officer so temporarily appointed as an officer of the national guard of this state is hereby authorized to exercise all powers of his or her office during the time said temporary appointment shall remain in force. Such temporary appointment shall expire upon written notice from the national guard bureau that federal recognition has been denied, and upon receipt of said notice, the governor is authorized and is hereby directed to discharge such temporary officer from the national guard; provided, that the provisions of this section shall not apply to officers of such forces of the organized and unorganized militias that may be called into active service of the state.
[(46-202) 1927, ch. 261, sec. 22, p. 510; I.C.A., sec. 45-202; am. 1957, ch. 174, sec. 16, p. 312; am. 2022, ch. 144, sec. 2, p. 517.]
All officers of the national guard of this state shall take precedence or relative rank, as determined by the federal laws and the rules and regulations promulgated thereunder.
[(46-203) 1927, ch. 261, sec. 23, p. 510; I.C.A., sec. 45-203; am. 1957, ch. 174, sec. 17, p. 312.]
When a commissioned officer or warrant officer of the national guard is promoted to higher grade and accepts same, the promotion shall not be effective until the officer has qualified for the higher office by examination as required under the provisions of the national defense act.
[(46-204) 1927, ch. 261, sec. 25, p. 510; I.C.A., sec. 45-204; am. 1957, ch. 174, sec. 18, p. 312.]
Commissions of officers of the national guard shall be vacated upon resignation duly accepted by the governor; for absence without leave for three (3) months; upon the recommendation of an efficiency board approved by the governor as provided by national guard regulations; pursuant to the sentence of a general court-martial after the approval thereof by the governor, imposing sentence of dismissal; or when an officer has been convicted in a civil court of any crime of the grade of felony; upon withdrawal of federal recognition by the secretary of the army or the secretary of the air force; provided, that a formal discharge shall not be given to any officer of the national guard until he or she shall have given a satisfactory clearance for all property belonging to the state or to the United States issued for the use in the military service by the national guard for which he or she is accountable or responsible, or both; and if discharge from the service of the national guard of the state shall be given before such satisfactory clearance for the responsibility of said property has been given, then such discharge shall be and is hereby declared null and void.
[(46-205) 1927, ch. 261, sec. 27, p. 510; am. 1931, ch. 186, sec. 4, p. 310; I.C.A., sec. 45-205; am. 1939, ch. 50, sec. 3, p. 91; am. 1957, ch. 174, sec. 19, p. 312; am. 2022, ch. 144, sec. 3, p. 517.]
Upon request, any commissioned officer, warrant officer or enlisted member of the national guard of Idaho who has a total military service in the armed forces of the United States of twenty (20) years may be placed on the retirement list. In the discretion of the adjutant general, any member may be advanced one (1) grade prior to retirement. Promotions under this section shall be honorary.
[(46-206) 1927, ch. 261, sec. 30, p. 510; I.C.A., sec. 45-206; am. 1957, ch. 174, sec. 20, p. 312; am. 1978, ch. 54, sec. 2, p. 102; am. 2007, ch. 109, sec. 1, p. 315; am. 2008, ch. 27, sec. 10, p. 51.]
A commissioned officer responsible or accountable for state funds or state property, or property or funds of the United States, intended and issued for use in the military service, issued or entrusted to him or her by the adjutant general or the United States property and fiscal officer, or acquired by transfer, inventory, or purchase, from any state fund or from any annual allowance of state funds or acquired in any other manner, who may tender his or her resignation and whose accounts are not settled, may be relieved from active duty and held as a supernumerary officer pending settlement of his or her accounts; and when so relieved from active duty, the office in which he or she is so commissioned or to which he or she has been assigned shall be considered as vacated: provided, that a commissioned officer so held as a supernumerary officer shall be amenable to court-martial for military offenses to the same extent and in like manner as if upon the active list of officers.
[(46-207) 1927, ch. 261, sec. 31, p. 510; I.C.A., sec. 45-207; am. 1957, ch. 174, sec. 21, p. 312; am. 2022, ch. 144, sec. 4, p. 518.]
Every person enlisting in the national guard shall sign an enlistment contract, and take and subscribe to the oath of enlistment prescribed by the national defense act and regulations issued thereunder.
[(46-210) 1927, ch. 261, sec. 34,p. 510; I.C.A., sec. 45-210; am. 1957, ch. 174, sec. 24, p. 312.]
Hereafter the period and requirements of enlistment and reenlistment in the national guard of this state shall be the same as prescribed by the national defense act and the regulations issued thereunder.
[(46-211) 1927, ch. 261, sec. 35, p. 510; I.C.A., sec. 45-211; am. 1957, ch. 174, sec. 25, p. 312.]
An enlisted person discharged from the service of the national guard shall receive a discharge therefrom in writing, in such form and with such classification as is or shall be prescribed by the national defense act and regulations issued thereunder: provided, that the provisions of this section shall not apply to the discharge of any member of the unorganized militia called into the active service of the state.
[(46-212) 1927, ch. 261, sec. 36, p. 510; I.C.A., sec. 45-212; am. 1957, ch. 174, sec. 26, p. 312.]
Enlisted personnel of the national guard may be transferred upon their own application from one (1) organization to another in the same manner as prescribed in the federal regulations of the department of the army and the department of the air force. Transfers of enlisted persons and of noncommissioned officers may be made from one (1) organization to another or from one (1) arm of the service to another, when in the judgment of the adjutant general the interests of the service demand such transfers; provided, that commanders of regiments, groups, separate squadrons, or separate battalions in the active service of the state may make such transfers within their regiment, group, separate squadron, or separate battalion as they may deem advisable for the good of the service.
[(46-213) 1927, ch. 261, sec. 37, p. 510; I.C.A., sec. 45-213; am. 1957, ch. 174, sec. 27, p. 312.]
An enlisted person who has not returned or properly accounted for all the public property belonging to the state or to the United States, issued for use in the military service, and for which he or she is responsible, shall not receive a full and complete discharge from the national guard of this state: provided, that if a discharge for any enlisted person shall have been given before the return of or proper accounting for said property for which he or she is responsible, then said discharge shall be and is hereby declared null and void.
[(46-215) 1927, ch. 261, sec. 40, p. 510; I.C.A., sec. 45-215; am. 1957, ch. 174, sec. 29, p. 312; am. 2022, ch. 144, sec. 5, p. 518.]
All officers and employees of the state of Idaho who are current members of the national guard or who are current reservists in the armed forces of the United States shall be entitled each calendar year to one hundred sixty (160) hours of military leave of absence from their respective duties without loss of pay, time, or efficiency rating during which they shall be engaged in military duty ordered or authorized under the provisions of law. State employees shall have the above-referenced one hundred sixty (160) hours of leave prorated proportionally to the number of hours in their regularly scheduled biweekly pay period. Administration of paid leave for military duty shall be consistent with the federal office of personnel management (OPM) definitions and pay administration guidance for similarly situated federal employees.
[(46-216) 1927, ch. 261, sec. 34, p. 510; I.C.A., sec. 45-216; am. 1957, ch. 174, sec. 30, p. 312; am. 2006, ch. 171, sec. 1, p. 530; am. 2008, ch. 126, sec. 3, p. 347; am. 2009, ch. 44, sec. 1, p. 125; am. 2026, ch. 57, sec. 1, p. 251.]
Any person who is a duly qualified member of the national guard or of the reserve components of the armed forces, who is a member of an organized unit and who, in order to receive military training with the armed forces of the United States, not to exceed fifteen (15) days in any one (1) calendar year, leaves a position other than employment of a temporary nature in the employ of any employer, and who shall give evidence defining date of departure and date of return for purposes of military training ninety (90) days prior to the date of departure and who shall further give evidence of the satisfactory completion of such training immediately thereafter, and who is still qualified to perform the duties of such position shall be entitled to be restored to his or her previous or similar position with the same status, pay and seniority. Such seniority shall continue to accrue during such period of absence, and such period of absence for military training shall be construed as an absence without leave and within the discretion of the employer. Said leave may be with or without pay.
[46-224, added 1955, ch. 202, sec. 1, p. 434; am. 2022, ch. 144, sec. 6, p. 518.]
Such absence for military training provided in this chapter shall not affect the employee’s right to receive normal vacation, sick leave, bonus, advancement, and other advantages of his or her employment normally to be anticipated in his or her particular position. All officers and employees of the state of Idaho who shall be members of the national guard or who shall be reservists in the armed forces of the United States shall also be entitled to their existing medical benefits for the first thirty (30) days of a deployment ordered or authorized under the provisions of the national defense act, and such entitlement shall not decrease any existing accrued leave balances.
[46-225, added 1955, ch. 202, sec. 2, p. 434; am. 2006, ch. 172, sec. 1, p. 531; am. 2022, ch. 144, sec. 7, p. 519.]
If any employer fails to comply with any of the provisions of this act, the employee may bring an action at law for damages for such noncompliance or apply to the district court for such equitable relief as may be just and proper under the circumstances.
[46-226, added 1955, ch. 202, sec. 3, p. 434; am. 2022, ch. 144, sec. 8, p. 519.]
All organizations of the national guard shall be equipped with such arms, equipment and such other supplies as may be furnished to the state under the provisions of the national defense act. The commanding officer of any organization or detachment of the national guard of this state to which such property of the United States has been issued for use in military service shall keep said property in proper repair, in good condition, and is hereby charged with the proper custody and safekeeping thereof.
[(46-301) 1927, ch. 261, sec. 41, p. 510; I.C.A., sec. 45-301; am. 1957, ch. 174, sec. 38, p. 312.]
The adjutant general of the Idaho national guard is authorized to encourage recruitment and retention of national guardsmen by providing incentive payments as set forth hereinafter. The adjutant general may authorize the payment of not more than one hundred percent (100%) of student registration fees or tuition for each semester for each member of the active Idaho national guard who attends a public or private institution of higher education in Idaho, a career technical education school, or a community college organized under the provisions of chapter 21, title 33, Idaho Code. To be eligible to receive benefits, an individual must be a member in good standing of the active Idaho national guard at the beginning of and throughout the entire semester for which benefits are received.
[46-314, added 1974, ch. 134, sec. 1, p. 1338; am. 1977, ch. 37, sec. 1, p. 69; am. 1978, ch. 54, sec. 4, p. 103; am. 1998, ch. 294, sec. 1, p. 975; am. 2001, ch. 322, sec. 1, p. 1137; am. 2016, ch. 25, sec. 39, p. 56; am. 2017, ch. 29, sec. 1, p. 51.]
Members of the Idaho national guard, when said guard is in the service of the United States, or the state of Idaho, shall not be arrested on any civil process while going to, remaining at, or returning from any place at which he may be required to attend for military duty.
[(46-401) 1927, ch. 261, sec. 51, p. 510; I.C.A., sec. 45-401.]
Members of the Idaho national guard ordered into active service of the state by any proper authority shall not be liable in any court of this state, either civil or criminal for any acts done by them in performance of their duty. When suit or proceedings shall be commenced in any court by any person against any officer of the national guard of this state, for any act done by such officer in his official capacity, in the discharge of any duty under this act; or against any person acting under the authority or order of any such officer, or by virtue of any warrant issued by him pursuant to law, the defendant may require the person prosecuting or instituting the suit or proceedings, to file security for the payment of costs that may be awarded to the defendant therein. In case the plaintiff shall be nonsuited or have a verdict or judgment rendered against him, the defendant shall recover treble costs.
[(46-402) 1927, ch. 261, sec. 52, p. 510; I.C.A., sec. 45-402.]
Uniforms, arms, and equipment, required by law or regulations to be owned by officers of the national guard of this state, and all uniforms, arms, equipment, or other property of state or the United States issued to said officers or enlisted men of the national guard of this state, for use in the military service shall be exempt from all suits, distresses, executions, or sales for debt or payment of taxes.
[(46-403) 1927, ch. 261, sec. 53, p. 510; I.C.A., sec. 45-403.]
The commanding officer of any portion of the Idaho national guard called into the active service of the state when performing any military duty in any street or highway, may require any or all persons in such street or highway to yield the right of way to said national guard: provided, that the carriage of United States mails, the legitimate functions of the police, and the progress and operations of hospitals, ambulances, fire engines, and fire departments shall not be interfered with thereby. All others who shall hinder, delay, or obstruct any portion of the national guard on active duty in the service of the state in the performance of any military duty or who shall attempt to do so, shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1000.00) or by imprisonment for not less than three (3) months nor more than one (1) year, or both.
[(46-404) 1927, ch. 261, sec. 54, p. 510; I.C.A., sec. 45-404.]
Any person belonging to the Idaho national guard going to or returning from any parade, encampment, drill or meeting which he may be required to attend under the laws and regulations for said national guard, shall, together with his conveyance and the military property of the state or of the United States, or both, in his charge, be allowed to pass free through all toll gates, and over all toll bridges, and ferries, if he is in uniform or if he presents an order for duty or a certificate from his commanding officer that he is a member of the Idaho national guard.
[(46-405) 1927, ch. 261, sec. 55, p. 510; I.C.A., sec. 45-405.]
Any member of the national guard shall be exempt from sitting or serving as juror in any of the courts of this state, provided he shall furnish the certificate of his immediate commanding officer that he has performed the duties required by his enlistment or commission. No member of the national guard of this state shall be required to serve on any posse comitatus.
[(46-406) 1927, ch. 261, sec. 56, p. 510; I.C.A., sec. 45-406; am. 1978, ch. 54, sec. 5, p. 103.]
(a) Any member of the Idaho national guard who is ordered to duty by the governor, or any Idaho employee who is a member of the national guard of another state and who is called into active service by the governor of that state, and who at the time of such order to duty is employed by any employer other than the United States government, shall be entitled to reemployment as set forth in section 46-409, Idaho Code.
(b) If the member is still qualified to perform the duties of the position he held at the time of the order to duty, he shall be restored by the employer or the employer’s successor in interest to that position or one of like seniority, status and pay. If the member is not qualified to perform the duties of such position by reason of disability sustained during the period of duty, but is qualified to perform the duties of any other positions in the employ of the employer, then the employer must offer the member that position which he is qualified to perform which is most similar to his former position in seniority, status and pay.
(c) Any person who is reemployed under this section shall not be discharged without cause within one (1) year after such reemployment.
(d) If any employer fails or refuses to comply with this section, the district court in the county in which the member was employed shall have the power, upon petition by the member, to compel the employer to comply with this section and to compensate the member for lost wages and benefits, for costs of the action, and for reasonable attorney’s fees. The court shall order a speedy hearing in any such case and advance it on the calendar.
[46-407, added 1984, ch. 139, sec. 1, p. 328; am. 2007, ch. 276, sec. 1, p. 805.]
Employees of the military division of the state of Idaho who are performing security duties at the Orchard training area located in Ada and Elmore counties may, in addition to their power to protect and secure military property and persons, detain for civil law enforcement authorities any person who commits a violation of the criminal laws of this state in their presence. Persons so detained shall be released to the custody of civil law enforcement authorities as soon as practicable. Employees performing duties under this section are "employees" under sections 6-902, 6-903 and 6-917, Idaho Code, and are not excluded by the exceptions to governmental liability under section 6-904 4. or 5., Idaho Code.
[46-408, added 2000, ch. 86, sec. 1, p. 188; am. 2021, ch. 63, sec. 1, p. 196.]
(1) As used in this section, the following terms have the following meanings:
(a) "Active member" means any member of the air or army national guard who is called or ordered by the governor to state active duty, or to duty other than for training under title 32 U.S.C., or ordered by competent federal authority into active federal service under title 10 U.S.C.
(b) "Be called or ordered by the governor" means to be called or ordered by the governor to state active duty or to duty other than for training under title 32 U.S.C.
(c) "Duty other than for training" means any state active duty or title 32 U.S.C. duty other than training upon the call or order of the governor, or active federal service under title 10 U.S.C. Duty other than for training does not include weekend drill, annual training (generally fifteen (15) days) as part of normal national guard service, and does not include attendance at military schools.
(d) "Employee" means any person employed by a public or private employer.
(e) "Servicemembers civil relief act (SCRA)" means the provisions of 50 U.S.C. App. section 3901 et seq., which protects active military service members.
(f) "State active duty" means any active duty performed by an active member of the national guard in accordance with this title when called or ordered by the governor.
(g) "Uniformed services employment and reemployment rights act of 1994 (USERRA)" means the provisions of 38 U.S.C. section 4301 et seq., which gives employees who leave a civilian job to perform military service the right to return to the civilian job held before entering military service with the rights to seniority, to purchase insurance coverage and purchase retirement credit.
(2) Whenever any active member of the national guard in time of war, armed conflict, or emergency proclaimed by a governor or by the president of the United States, shall be called or ordered by a governor to state active duty, or to duty other than for training pursuant to title 32 U.S.C., the provision as then in effect of the servicemembers civil relief act, 50 U.S.C. App. section 3901 et seq., and the uniformed services employment and reemployment rights act, 38 U.S.C. section 4301 et seq., shall apply.
(3) With reference to 50 U.S.C. App. section 4012, the adjutant general or his designee shall be responsible to execute certificates of service referred to therein.
[46-409, added 2003, ch. 251, sec. 2, p. 650; am. 2004, ch. 59, sec. 1, p. 277; am. 2007, ch. 276, sec. 2, p. 806; am. 2016, ch. 122, sec. 1, p. 355.]
The purpose of this chapter is to encourage compliance with the federal military selective service act and to protect the eligibility of the citizens of this state who are subject to the provisions of the federal statute to receive federal financial assistance for postsecondary education and for employment with the executive branch of the federal government. The federal selective service registration awareness and compliance act requires persons subject to the provisions of the federal military selective service act to be in compliance with the requirements of that federal statute as a condition of eligibility for enrollment at a state-supported institution of postsecondary education, or for state-supported scholarships, programs of financial assistance funded by state revenue including federal funds, gifts or grants accepted by the state, or for employment by the state or any political subdivision.
[46-501, added 1999, ch. 375, sec. 1, p. 1025.]
The legislature of the state of Idaho finds that the military selective service act at 50 U.S.C. sec. 451 et seq. requires all male citizens and every other male person residing in the United States, except for lawfully admitted nonimmigrant aliens, upon reaching their eighteenth birthday to register with the United States selective service system. The legislature further finds that federal statutes limit eligibility for federal student financial assistance and eligibility for employment within the executive branch of the federal government to persons who are in compliance with the requirements of the federal military selective service act.
[46-502, added 1999, ch. 375, sec. 1, p. 1025.]
(1) A person may not enroll in a state-supported institution of postsecondary education unless he is in compliance with the federal military selective service act.
(2) A person may not receive a loan, grant, scholarship or other financial assistance for postsecondary education funded by state revenue, including federal funds or gifts and grants accepted by this state, or receive a student loan guaranteed by the state unless he is in compliance with the federal military selective service act.
(3) It shall be the duty of all officials having charge of and authority over state-supported institutions of postsecondary education and over the granting of state-supported financial assistance for postsecondary education to assure themselves that applicants are in compliance with the federal military selective service act. The institutions are authorized to develop the necessary form to allow the applicant to certify compliance with the selective service act.
[46-503, added 1999, ch. 375, sec. 1, p. 1025.]
(1) No male person who has attained the age of eighteen (18) years who fails to be in compliance with the federal selective service act shall be eligible for employment by or service for the state of Idaho, or a political subdivision of the state, including all boards and commissions, departments, agencies, institutions and instrumentalities.
(2) It shall be the duty of all officials having charge of and authority over hiring of employees by the state or political subdivisions of the state to assure themselves that applicants are in compliance with the federal military selective service act. The hiring authorities are authorized to develop the necessary form to allow the applicant to certify compliance with the selective service act.
[46-504, added 1999, ch. 375, sec. 1, p. 1025.]
A person shall not be denied a right, privilege or benefit under this chapter by reason of failure to present himself for and submit to the requirement to register pursuant to the federal military selective service act if:
(1) The requirement for the person to so register has terminated or become inapplicable to the person; or
(2) The person is serving or has already served in the armed forces, or has a condition that would preclude acceptability for military service.
[46-505, added 1999, ch. 375, sec. 1, p. 1026.]
(1)(a) The governor may proclaim a state of extreme emergency and then order into the active service of the state the national guard, as he may deem proper.
(b) "State of extreme emergency" means:
(i) The duly proclaimed existence of conditions threatening the safety of persons or property within the state, or any part thereof, caused by an enemy attack or threatened attack; or
(ii) The duly proclaimed existence of conditions threatening persons or property within the state, or any part thereof, caused by such conditions as fire, flood, storm, epidemic, pandemic, volcano, earthquake, violent insurrection, riot, revolt, explosion, cyber attack on critical infrastructure, or other conditions that by reason of their magnitude are or are likely to be beyond the control of the services, personnel, equipment, and facilities of any county, any city, or any city and county or result in mass casualties.
(c) "Enemy attack" means an actual attack by terrorists or a foreign nation by terrorism, hostile air raids, or other form of warfare upon the state or any other state or territory of the United States.
(d) "Violent insurrection" means a violent movement or violent actions by persons intending to overthrow the lawful government.
(e) "Terrorism" is as defined in section 18-8102, Idaho Code.
(2)(a) During a declared state of extreme emergency, the governor shall have authority over all executive agencies and departments of the state government, including all separate boards and commissions, and the right to exercise within the area or regions wherein the state of extreme emergency exists, subject to the provisions of this section, police power vested in the state by the constitution and the laws of the state of Idaho; provided, however, that the governor’s exercise thereof must be limited to promulgation, issuance, and enforcement of written rules and orders necessary to support the national guard, essential to protect life or property, ensure the continuity of the constitutional form of government, or that are otherwise required to mitigate serious harm created by the conditions giving rise to the state of extreme emergency. Such rules and orders must be narrowly focused without placing unnecessary restrictions on the ability for a person or persons, regardless of job type or classification, to work, provide for their families, or otherwise contribute to the economy of the state of Idaho.
(b) Such rules and orders must, whenever practicable, be prepared in advance of extreme emergency, and the governor shall cause widespread publicity and notice to be given of such rules and orders. Rules and orders issued under the authority of this section must not become operative until the governor proclaims a state of extreme emergency. Such rules and orders shall be filed in the office of the secretary of state as soon as possible after their issuance. A copy of such rules and orders shall likewise be filed in the office of the county clerk of each county, any portion of which is included within the area wherein a state of extreme emergency has been proclaimed.
(c) The state of extreme emergency must terminate by either the expiration of the period for which it was proclaimed or the need for said state of extreme emergency has ceased.
(d) Whenever the governor declares a state of extreme emergency encompassing twelve (12) or more counties, the powers granted by the legislature to the governor in paragraph (a) of this subsection shall be revoked on the ninetieth day of the proclaimed state of extreme emergency unless the legislature is in regular session or the governor issues a proclamation convening an extraordinary session of the legislature for the purpose of having the legislature vote on whether to revoke any or all powers granted to the governor in paragraph (a) of this subsection. If the governor elects to issue a proclamation convening an extraordinary session, such proclamation must identify a date for the legislature to convene that is no later than twenty-one (21) days after the issuance of the proclamation. The governor, consistent with section 9, article IV of the constitution of the state of Idaho, may identify additional subjects for legislation during the extraordinary session, including the appropriation of necessary emergency funds.
(e) In the event those conditions giving rise to the state of extreme emergency prevent or render it impracticable for a legislator to participate in the regular or extraordinary session, the legislator shall be replaced by an interim successor designated and qualified in accordance with the emergency interim legislative succession act, as provided in sections 67-413 through 67-426, Idaho Code.
(f) The governor may not circumvent the ninety (90) day limitation by redeclaring successive states of extreme emergency for the same conditions that gave rise to the proclaimed state of extreme emergency.
(3) During any proclaimed state of extreme emergency, insurrection, or martial law, neither the governor nor any agency of any governmental entity or political subdivision of the state shall:
(a) Impose or enforce federal restrictions prohibited under Idaho law on the lawful possession, manufacturing, transfer, sale, transport, storage, display, or use of firearms or ammunition or otherwise suspend or unconstitutionally limit any rights guaranteed by the United States constitution or the constitution of the state of Idaho, including but not limited to the right to peaceable assembly and free exercise of religion. The transport, storage, transfer, sale, import and export, distribution, repair, maintenance, and manufacture of and commerce in firearms, ammunition, and related accessories and components, shooting ranges, and other goods and services directly related to lawful firearm possession, use, storage, repair, maintenance, sale or transfer, and training in the use of firearms are declared to be life-sustaining, essential businesses and services for the purposes of safety and security in times of declared emergency or any other statutorily authorized responses to disaster, war, acts of terrorism, riot or civil disorder, public health crises, or emergencies of whatever kind or nature;
(b) Suspend or revoke a license to carry concealed weapons or refuse to accept and process an application for a license to carry concealed weapons, except in accordance with the provisions of chapter 33, title 18, Idaho Code; or
(c) Notwithstanding the provisions of subsection (5) of this section, seize, commandeer, or confiscate in any manner any privately owned firearm, ammunition, or firearms or ammunition components that are possessed, carried, displayed, sold, transferred, transported, stored, or used in connection with otherwise lawful conduct.
(4) During any state of extreme emergency, the governor may not alter, adjust, or suspend any provision of the Idaho Code but for good cause may temporarily suspend enforcement of particular provisions that prevent, hinder, or delay necessary action to respond to the state of extreme emergency. The governor shall file a notice describing the temporary suspension of enforcement of any particular provisions with the office of the secretary of state as soon as possible after such suspension, and copies thereof shall be delivered to the speaker of the Idaho house of representatives, the president pro tempore of the Idaho senate, and the chief justice of the Idaho supreme court.
(5) Nothing in this section shall prohibit the governor from deploying the national guard as he may deem proper.
[46-601, added 2021, ch. 359, sec. 3, p. 1108; am. 2022, ch. 229, sec. 1, p. 748.]
Whenever a state of extreme emergency has been proclaimed by the governor, the governor if in his judgment the maintenance of law and order will thereby be promoted, and in addition to the proclaiming of said state of extreme emergency, may by proclamation declare the state, county, or city, or any specified portion thereof, to be in a state of insurrection and may declare martial law therein.
[(46-602) 1927, ch. 261, sec. 4, p. 510; I.C.A., sec. 45-602; am. 1957, ch. 174, sec. 59, p. 312.]
When the national guard or the organized militia shall be ordered into the active service of the state during a state of extreme emergency, or for any other cause, the commanding officer of the military personnel shall cooperate with the civil officers to the fullest extent, consistent with the accomplishment of the object, for which the military personnel were called; the civil officials may express to the commander of the military personnel the general or specific object which the civil officials desire to accomplish, but the tactical direction of the military personnel, the kind and extent of force to be used, and the particular means to be employed to accomplish the object specified by the civil officers are left solely to the officers in charge of the military personnel. In case of any breach of the peace, tumult, riot, resistance to process of this state, or a state of extreme emergency, or imminent danger thereof, the sheriff of a county may call for aid upon the commander-in-chief of the national guard.
[(46-604) 1927, ch. 261, sec. 87, p. 510; I.C.A., sec. 45-604; am. 1957, ch. 174, sec. 61, p. 312.]
When the national guard or any part thereof is ordered on active duty in the service of the state, the enlisted personnel, the commissioned officers and warrant officers so ordered shall be entitled to the same pay as enlisted personnel, officers and warrant officers of like grade and length of service in the armed forces of the United States and they shall be entitled to the same allowances as enlisted personnel, officers and warrant officers of like grade and length of service in the armed forces of the United States. All payments of pay and allowances under this section shall be made by the adjutant general. No deductions shall be made from the pay of officers or enlisted personnel in active service of the state for dues or other financial obligations imposed by any bylaw, rules or regulations of a civil character. When lodging or meals, or both, cannot be provided by the state, the adjutant general may pay a per diem in addition to the pay and allowances. Nothing in this section shall preclude officers or enlisted personnel in active service of the state from accepting, in lieu of the pay entitlement provided above, greater pay and allowances that may be available from any other government department or agency through cooperative agreement or otherwise.
[(46-605) 1927, ch. 261, sec. 71, p. 510; I.C.A., sec. 45-605; am. 1957, ch. 174, sec. 62, p. 312; am. 1974, ch. 135, sec. 1, p. 1339; am. 1996, ch. 411, sec. 1, p. 1372; am. 2003, ch. 70, sec. 1, p. 236; am. 2014, ch. 55, sec. 1, p. 133.]
All officers and enlisted personnel of the national guard not in the service of the United States, while on duty or assembled therefor, pursuant to the orders of the governor, or any other civil officer authorized by law to make such demand on the military forces of the state in case of a state of extreme emergency, or threats thereof, or whenever called upon in aid of civil authorities, shall receive the same pay and allowances for such service as that prescribed in section 46-605, Idaho Code; and such compensation and the necessary expenses incurred in quartering, caring for, warning for duty, and transporting and subsisting the military personnel as well as the expense incurred for pay, care and subsistence of officers and enlisted personnel shall be paid by the state.
[(46-607) 1927, ch. 261, sec. 73, p. 510; I.C.A., sec. 45-607; am. 1957, ch. 174, sec. 64, p. 312; am. 1999, ch. 118, sec. 2, p. 352.]
Officers and enlisted personnel of the national guard may be ordered upon special duty at the direction of the adjutant general, if with their consent, for a period not to exceed seventy-two (72) hours without the approval of the governor, or at the direction of the governor as commander-in-chief, with or without their consent. They shall receive the pay and allowances provided in section 46-605, Idaho Code, during the time they may continue upon duty under such order.
[(46-609) 1927, ch. 261, sec. 32, p. 510; I.C.A., sec. 45-609; am. 1957, ch. 174, sec. 66, p. 312; am. 1998, ch. 98, sec. 1, p. 347; am. 2007, ch. 275, sec. 1, p. 805.]
Armories, stables, storehouses, arsenals, depots, and other agencies and facilities for the use of the national guard shall be built by the state, repairs thereto, and the maintenance, and necessary expenses for heating, lighting, and for water, shall be paid by the state, except that the state pay only such part of such expense for water, heat, or light, as was incurred for military purposes: provided further, that no moneys of the state shall be expended for any of the purposes provided in this section unless the funds be from an appropriation made by the legislature for such specific purpose.
[(46-701) 1927, ch. 261, sec. 82, p. 510; I.C.A., sec. 45-701.]
The adjutant general may execute a lease on any building, ground, or target range owned by the state, for a period of not to exceed five (5) years with renewal privileges thereon, at such rate of compensation as the adjutant general shall deem just and reasonable when said buildings, grounds or target ranges are not required for military purposes: provided, that said lease shall not become effective until the governor shall have approved the same: provided further, that any lease or license covering any building, grounds, or target range shall be revocable at the pleasure of the governor, and no action shall accrue against or liability be incurred by the state by reason of the revocation of such lease or license.
[(46-705) 1927, ch. 261, sec. 86, p. 510; I.C.A., sec. 45-705; am. 1951, ch. 276, sec. 4, p. 583.]
This act may be cited as the "Armory Construction Act."
[46-706, added 1953, ch. 147, sec. 1, p. 236.]
As used in this act:
(a) "Adjutant general" means the adjutant general of the State of Idaho;
(b) "The Federal Act" means Public Law No. 783 of the 81st Congress, (64 Stat. 829-832), entitled "The National Defense Facilities Act."
(c)"National Guard Bureau" means the National Guard Bureau of the Department of the Army and National Guard Bureau of the Department of the Air Force.
(d) "Idaho Military Facility" means an armory, readiness center, building, storehouse or training facility under the control of the Idaho National Guard and/or Idaho Military Division.
(e) "Idaho National Guard" means the Idaho Army National Guard and the Idaho Air National Guard.
[46-707, added 1953, ch. 147, sec. 2, p. 236; am. 1989, ch. 34, sec. 1, p. 44; am. 2017, ch. 30, sec. 1, p. 51.]
The adjutant general is hereby authorized to institute, establish and maintain a program of armory construction. The adjutant general shall constitute the sole agency of the state for the purpose of (1) making an inventory of existing armories, surveying the need for the construction of armories, and developing a program of armory construction as provided in this act, and (2) developing and administering a state plan for the construction of armories as provided in this act. Armory construction shall include construction of new facilities and expansion, rehabilitation or conversion of existing facilities.
[46-708, added 1953, ch. 147, sec. 3, p. 236.]
In carrying out the purposes of this act the adjutant general is authorized and directed:
(a) To require such reports, inspections and investigations, and prescribe such regulations as he deems necessary;
(b) To provide such methods of administration, to appoint and hire such personnel and take such other action as may be necessary to comply with the requirements of the federal act and the regulations thereunder; to furnish progress reports, certificates of completion, and other documents, data, and evidence required by the federal act, or regulations thereunder, and perform such other acts as are necessary to acquire and utilize federal funds from the National Guard Bureau or other appropriate federal agencies for the purpose of this act.
(c) To procure in his discretion the temporary and intermittent services of experts or consultants or organizations thereof, by contract, when such services are to be performed on a part time or fee for services basis and do not involve the performance of administrative duties;
(d) To the extent that he considers desirable to effectuate the purposes of this act, to enter into agreements for the utilization of the facilities and services of other departments of the state, other public or private agencies and institutions, and any county, city, town or village.
(e) To accept on behalf of the state and to deliver to the state treasurer for deposit in the armory construction fund any grant, gift or contribution made to assist in meeting the costs of carrying out the purposes of this act as herein provided; to accept on behalf of the state any grant, gift, bequest or other conveyance of real property made to assist in the carrying out of the purposes of this act.
(f) To make a annual report to the legislature on activities and expenditures pursuant to this act, including recommendations for such additional legislation as the adjutant general considers appropriate to furnish adequate armory facilities for the Idaho National Guard.
[46-709, added 1953, ch. 147, sec. 4, p. 236; am. 1976, ch. 9, sec. 5, p. 27.]
The adjutant general is authorized and directed to make an inventory of existing armories, to survey the need for the construction of armories, and, on the basis of such inventory and survey, to develop a program for the construction of such armories as will, in conjunction with existing facilities, afford the necessary physical facilities for furnishing adequate armories for the personnel of the Idaho National Guard.
[46-711, added 1953, ch. 147, sec. 6, p. 236.]
The construction program shall provide, in accordance with the regulations prescribed under the Federal Act, for adequate armory facilities for the Idaho National Guard and insofar as possible shall provide for their distribution throughout the state in such manner as to best serve the interests of the Idaho National Guard.
[46-712, added 1953, ch. 147, sec. 7, p. 236.]
The adjutant general is authorized and empowered to provide or secure all plans and specifications for, to let all contracts for, and to have charge of and supervision of the construction, expansion, rehabilitation or conversion of any and all armories as provided in this act, and the powers and duties vested in the adjutant general herein are expressly exempted from the provisions of sections 57-1101 through 57-1107, and section 67-5711, Idaho Code. The adjutant general is also empowered to exercise the authorities set out in section 67-5711B, Idaho Code, with respect to emergencies for armories.
[46-713, added 1953, ch. 147, sec. 8, p. 236; am. 1999, ch. 111, sec. 1, p. 339.]
Any contract with state matching funds in excess of the threshold amount specified for the requirement for formal bids in section 67-5711, Idaho Code, may not be let by the adjutant general until written approval of the same shall be given by the board of examiners.
[46-714, added 1953, ch. 147, sec. 9, p. 236; am. 1999, ch. 109, sec. 1, p. 337; am. 2017, ch. 28, sec. 1, p. 50.]
The adjutant general is authorized to make application to the National Guard Bureau for federal funds to assist in carrying out the survey, planning and construction activities herein provided. If any such federal funds are delivered to the state for disbursement, such funds shall be delivered to the state treasurer and by him deposited in the armory construction fund hereinafter created. Such funds are hereby appropriated to the adjutant general for expenditure for carrying out the survey, planning and construction activities. Any federal funds received and not expended for such purposes shall be refunded to the treasury of the United States.
[46-715, added 1953, ch. 147, sec. 10, p. 236.]
The adjutant general shall prepare and submit to the National Guard Bureau a state plan which shall include the armory construction program developed under this act and which shall provide for the establishment, administration and operation of armory construction activities in accordance with the requirements of the Federal Act and the regulations thereunder. The adjutant general shall from time to time review the armory construction program and submit to the National Guard Bureau any modification thereof which he may find necessary and may submit to the National Guard Bureau such modification of the state plan, not inconsistent with the requirements of the Federal Act, as he may deem advisable.
[46-716, added 1953, ch. 147, sec. 11, p. 236.]
All armories constructed with the use of federal funds under the provisions of this act shall be the property of the state of Idaho, and the adjutant general shall by regulation prescribe minimum standards for their maintenance, operation, and use. The adjutant general is authorized to permit use of such armories by public and private persons and organizations under such leases or other agreements as he shall deem appropriate, provided such use does not interfere with their use for the administration and training of the Idaho National Guard or conflict with the provisions of the Federal Act and regulations thereunder; provided, that any armory constructed with the use of Federal funds under the provisions of the Armory and Emergency Relief Facilities Act shall be jointly owned by the state of Idaho and the city or village, city or village and county, and county participating thereunder.
[46-717, added 1953, ch. 147, sec. 12, p. 236; am. 1955, ch. 52, sec. 2, p. 73.]
The state plan shall set forth the relative need for the several projects included in the construction program determined in accordance with regulations prescribed pursuant to the Federal Act and provide for the construction, insofar as financial resources are available therefor and for maintenance and operations make possible, in the order of such relative need.
[46-718, added 1953, ch. 147, sec. 13, p. 236.]
There is hereby created in the state treasury, a separate fund to be known as the "Armory Construction Fund," and all such moneys as may hereafter come into said fund are hereby appropriated for armory construction projects and to carry out the purposes and objects of this act. All funds received from the federal government, if such funds are payable directly to the state, and all other funds received from any source to carry out the purposes and objects of this act, shall be delivered to the state treasurer and by him deposited in said "Armory Construction Fund." All moneys paid into said "Armory Construction Fund," including federal moneys and state moneys appropriated thereto, shall be used solely for the construction of new armory facilities or the expansion, rehabilitation or conversion of existing facilities as provided in this act, and such moneys shall be paid out upon warrants drawn by the state controller upon presentation of proper vouchers showing the adjutant general’s approval of such disbursements. Any appropriations made to the "Armory Construction Fund" are expressly exempted from the provisions of the Standard Appropriations Act of 1945, sections 67-3601—67-3614, Idaho Code, from the provisions of section 67-3509, Idaho Code, and from the provisions of sections 67-3516—67-3523, Idaho Code.
[46-719, added 1953, ch. 147, sec. 14, p. 236; am. 1994, ch. 180, sec. 87, p. 485.]
It is the sense of the legislature that the defense of the country and the general welfare of its people is the joint responsibility of the government of the United States and the several states thereof including the state of Idaho and its cities, villages and counties. In fulfilling this obligation and to promote volunteer organizations and to afford them effectual encouragement, it is necessary for the state of Idaho to provide the national guard with armories for training personnel and housing equipment. The state of Idaho desires to avail itself of the provisions of existing federal statutes, and any statutes that may be enacted hereafter relating to the construction of armories and to provide, in addition to military use, that such armories shall be available for use in event of emergencies or disasters and for community use. To permit cities and villages, cities or villages and counties, and counties to participate with the state of Idaho in the acquisition of armories and sites for armories, and to accomplish the purposes of this act, it is hereby found and declared necessary to authorize cities and villages, cities or villages and counties, and counties to levy taxes, to donate funds and property to the state of Idaho, and to enter into such agreements as may be necessary for the purpose of complying with the statutes of the United States relating to the construction of armories.
[45-720, added 1953, ch. 147, sec. 17, as added by 1955, ch. 52, sec. 1, p. 73.]
Any city or village, city or village and county, and county may acquire, provide, and donate to the state of Idaho funds from its general fund and from its special fund created and established in section 46-722(c), and property, for the construction, maintenance, repair, alteration, and rehabilitation of armories and armory sites as prescribed by the Armory Construction Act (chapter 147 of the Session Laws of 1953).
[46-721, added 1953, ch. 147, sec. 18, as added by 1955, ch. 52, sec. 1, p. 73.]
To accomplish the purpose set forth in this act, the governing body of any city or village, or city or village and county, and the board of county commissioners may:
(a) Purchase, receive by donation, or otherwise acquire, real property for armory sites, and armories, and convey and transfer such sites and armories to the state of Idaho in joint ownership; purchase, receive by donation, lease or otherwise acquire, personal property for use in armories and to transfer the same to the state of Idaho in joint ownership.
(b) Enter into agreements on behalf of the city or village, city or village and county, and county with the adjutant general of the state of Idaho, the Department of Defense and the Departments of Army and Air Force, for the purpose of securing federal funds for the construction, maintenance, repair, alteration and rehabilitation of armories.
(c) Establish a special fund for the purposes of this act, levy a special tax for such purposes, but no levy for the purposes of this act shall exceed two hundredths percent (.02%) of the market value for assessment purposes on all taxable property in such city or village, or city or village and county, and county.
[46-722, added 1953, ch. 147, sec. 19, as added by 1955, ch. 52, sec. 1, p. 73; am. 1995, ch. 82, sec. 20, p. 232.]
Any armory constructed under this act wherein funds have been provided by a city or village, city or village and county, and county shall be jointly owned by the state and the participating city or village, city or village and county, and county; provided the participating city or village, city or village and county, and county contributes ten per cent (10%) or more of the actual construction cost, exclusive of the cost or market value of any real estate concerned.
[46-723, added 1953, ch. 147, sec. 20, as added by 1955, ch. 52, sec. 1, p. 73.]
All armories constructed with the use of federal funds under the provisions of this act shall be under the control of the adjutant general who shall by regulation prescribe minimum standards for their maintenance, operation and use. The adjutant general is authorized to permit the use of such armories by public and private persons and organizations under such leases or other agreements as he shall deem appropriate, provided such use does not interfere with their use for the administration and training of the Idaho National Guard, or conflict with the provisions of the National Defense Facilities Act of 1950 and the regulations thereunder. To assist the adjutant general to accomplish these purposes, the adjutant general may appoint an Armory Advisory Committee, consisting of one (1) representative each from the participating city or village, or city or village and county, and county, one (1) representative from the office of the adjutant general, and one (1) representative from the national guard unit, or units, occupying the armory. The Armory Advisory Committee shall advise and consult with the adjutant general in the use of said armory and shall assist him in the promulgation and adoption of rules and regulations governing the use of said armory by public and private persons and organizations.
[46-724, added 1953, ch. 147, sec. 21, as added by 1955, ch. 52, sec. 1, p. 73.]
When the governor shall declare an emergency within any county which has an armory constructed under the provisions of this act, the governor may declare, subject to the provisions of the National Defense Facilities Act of 1950, that such armory be made available immediately to the board of county commissioners of such county for emergency and disaster relief purposes.
[46-725, added 1953, ch. 147, sec. 22, as added by 1955, ch. 52, sec. 1, p. 73.]
Any jointly owned armory constructed under the provisions of this act and not required for the administration and training of the national guard shall revert to the control of the participating city or village, city or village and county, and county, subject to the provisions of the National Defense Facilities Act of 1950.
[46-726, added 1953, ch. 147, sec. 23, as added by 1955, ch. 52, sec. 1, p. 73.]
This act shall be known as the "Armory and Emergency Relief Facilities Act."
[46-727, added 1953, ch. 147, sec. 24, as added by 1955, ch. 52, sec. 1, p. 73.]
A state flag for the state of Idaho is hereby adopted, the same to be as follows:
A silk flag, blue field, five (5) feet six (6) inches fly, and four (4) feet four (4) inches on pike, bordered with gilt fringe two and one-half (2 1/2) inches in width, with state seal of Idaho twenty-one (21) inches in diameter, in colors, in the center of a blue field. The words "State of Idaho" are embroidered in with block letters, two (2) inches in height on a red band three (3) inches in width by twenty-nine (29) inches in length, the band being in gold and placed about eight and one-half (8 1/2) inches from the lower border of fringe and parallel with the same.
[(46-801) 1927, ch. 261, sec. 12, p. 510; I.C.A., sec. 45-801.]
No body of men, other than the regularly organized national guard, the unorganized militia when called into service of the state, or of the United States, and except such as are regularly recognized and provided for by the laws of the state of Idaho and of the United States, shall associate themselves together as a military company or organization, or parade in public with firearms in any city or town of this state.
No city or town shall raise or appropriate any money toward arming or equipping, uniforming, or in any other way supporting, sustaining or providing drill rooms or armories for any such body of men; but associations wholly composed of soldiers honorably discharged from the service of the United States or members of the orders of Sons of Veterans, or of the Boy Scouts, may parade in public with firearms on Memorial Day or upon the reception of any regiment or companies of soldiers returning from such service, and for the purpose of escort duty at the burial of deceased soldiers; and students in educational institutions where military science is taught as a prescribed part of the course of instruction, may with the consent of the governor, drill and parade with firearms in public, under the superintendence of their teachers. This section shall not be construed to prevent any other organization authorized by law parading with firearms, nor to prevent parades by the national guard of any other state or territory.
[(46-802) 1927, ch. 261, sec. 79, p. 510; 1931, ch. 186, sec. 7, p. 310; I.C.A., sec. 45-802; am. 2002, ch. 146, sec. 1, p. 419.]
The jurisdiction of the courts and board established by this act shall be presumed and the burden of proof shall rest on any person seeking to oust such courts or boards of jurisdiction in any case or proceeding.
[(46-803) 1927, ch. 261, sec. 81, p. 510; I.C.A., sec. 45-803.]
The military division shall be authorized to promulgate, implement and enforce rules for the administration of the military division and to implement the requirements of this title. The adjutant general shall be responsible for the enforcement of all rules adopted by the military division. All rulemaking proceedings and hearings of the military division shall be governed by the provisions of chapter 52, title 67, Idaho Code.
[46-804, added 2008, ch. 125, sec. 1, p. 346.]
(1) (a) There is hereby established the Idaho youth challenge program, a multiphased youth intervention program. The program will provide, among other things, a structured, disciplined residential phase of at least twenty-two (22) weeks focusing on education and practical life skills and a post-residential phase of at least twelve (12) months involving skilled and trained mentors supporting graduates and engaged in positive and durable placement of graduates. The youth challenge program shall be focused on assisting participants in achieving a high school diploma or obtaining a general equivalency diploma (GED) and helping to ensure that participants become productive members of society.
(b) The program shall be eligible to receive and expend any moneys provided to the program including, but not limited to, private contributions, federal funds and state alternative school funding. In the event that moneys for any fiscal year are inadequate to fund the youth challenge program, the program shall be discontinued. The decision to discontinue the program due to inadequate funding shall be made by the legislature and the governor in a joint letter provided to the adjutant general and signed by the governor, the president pro tempore of the senate and the speaker of the house of representatives.
(2) The youth challenge program shall be administered by the state adjutant general in conjunction with:
(a) The board of trustees of an appropriate school district of this state; or
(b) A governing board, the members of which shall be nominated by the adjutant general and appointed by the governor.
(3) The program and all program participants shall be governed by all applicable laws, regulations, and guidelines, including but not limited to 32 U.S.C. 509.
(4) (a) In order to be eligible to participate in the program, applicants shall:
(i) Be between the ages of sixteen (16) and eighteen (18) years on the first day of the residential phase. Applicants who are fifteen (15) years old and who will turn sixteen (16) years old during the residential phase may attend if approved by the program director, but such applicants must be enrolled in a high school credit recovery track to allow for their eventual return to high school;
(ii) Be a citizen or legal resident of the United States;
(iii) Be a resident of the state of Idaho;
(iv) Be physically and mentally capable to participate in the program in which enrolled with reasonable accommodation for physical and other disabilities;
(v) Receive a physical examination in conjunction with their enrollment into the program. Such examination must be sufficient to reach a conclusion as to the participant’s ability to complete the program with reasonable accommodation only for physical and other disabilities. The examination may also include testing for substance abuse and pregnancy insofar as directed by department of defense instructions and insofar as such testing does not conflict with state law;
(vi) Be a high school dropout. A high school dropout is an individual who is no longer attending any school and who has not yet received a secondary school diploma or certificate from a program of equivalency for such diploma;
(vii) Be unemployed or underemployed at the time an application is submitted;
(viii) Not be currently on parole or probation for anything other than juvenile status offenses or misdemeanors;
(ix) Not be under indictment or charged with or convicted of a crime that is considered a felony when charged as an adult;
(x) Be free from use of illegal substances and the illegal use of substances; and
(xi) Meet any other criteria applicable to the program as established by federal law, regulation, or agency instruction.
(b) Applicants shall be selected for the program by the youth challenge program board of admissions. Such board shall be appointed by the adjutant general.
(5) The adjutant general is authorized to enter into contracts and to promulgate rules to implement the provisions of this section.
(6) The school district where the youth challenge program is located may take steps to have the youth challenge program be considered and designated as an alternative school.
[46-805, added 2011, ch. 322, sec. 1, p. 938; am. 2012, ch. 234, sec. 1, p. 651; am. 2015, ch. 302, sec. 4, p. 1187; am. 2022, ch. 142, sec. 1, p. 513.]
(1) There is hereby created in the state treasury the military division support fund. Moneys in the fund shall be invested as provided in section 67-1210, Idaho Code, and interest earned on investment of idle moneys in the fund shall be credited to the fund. Moneys in the fund shall be continually appropriated.
(2) The adjutant general, or his designee, is hereby authorized to also accept by devise, gift or otherwise and hold as trustee, for the benefit and use of the military division or any part thereof, any property, real or personal. The adjutant general, or his designee, shall be empowered to collect, receive and recover the rents, incomes and issues from the property; and to sell, divest, exchange or transact such property at fair market value; and to otherwise expend fund assets as provided by the terms of the devise or gift, or if not so provided, to expend them for the benefit and use of the military division.
(3) The board of examiners shall have oversight of this fund. The adjutant general shall provide a public annual report, due on the first day of July each year, to the board of examiners disclosing the financial status of the fund, listing all new gifts, bequests, donations and contributions during the prior year as well as all sales or disposals of properties or assets from the fund and every disbursement or other use of the fund.
(a) The board of examiners shall approve all gifts of real property before acceptance by the adjutant general.
(b) The board of examiners shall approve all gifts valued at two hundred fifty thousand dollars ($250,000) or more before acceptance by the adjutant general.
(c) The adjutant general may, on his or her own initiative, request review and approval by the board of examiners for any other gift prior to acceptance.
(4) The adjutant general may assign military division employees to manage the operation of the fund; and the adjutant general shall request the office of the attorney general to prepare any legal documents required under the provisions of this section.
[46-806, added 2012, ch. 23, sec. 1, p. 77.]
This chapter shall be known and may be cited as the "Emergency Medical Services Act."
[46-901, added 2025, ch. 94, sec. 2, p. 444.]
(1) The purpose of this chapter is to recognize that the delivery of emergency medical services is critical to the life, health, and safety of Idahoans and to provide reasonable regulation of such services. Any regulations under this chapter shall be narrowly tailored, and all licensing requirements shall not be more restrictive than neighboring states or comparably situated states.
(2) To carry out this purpose, the provisions of section 54-1804, Idaho Code, shall not be construed as to prohibit or penalize emergency medical services rendered by a person authorized to render emergency medical services by this chapter if such emergency medical service is rendered under the responsible supervision and control of a physician licensed in Idaho.
[(46-902) (56-1011) (39-139) 39-140, added 1976, ch. 187, sec. 1, p. 674; am. and redesig. 1996, ch. 26, sec. 2, p. 61; am. and redesig. 2001, ch. 110, sec. 4, p. 377; am. 2009, ch. 189, sec. 1, p. 611; am. 2010, ch. 79, sec. 34, p. 155; am. and redesig. 2025, ch. 94, sec. 3, p. 450.]
As used in this chapter:
(1) "Advanced emergency medical technician" means a person who has met the qualifications for licensure as set forth in this chapter, is licensed under this chapter, carries out the practice of emergency care within the scope of practice determined by the division, and practices under the supervision of an Idaho licensed physician.
(2) "Agency" means any organization licensed under this chapter that operates an air medical service, ambulance service or nontransport service.
(3) "Air ambulance" means any privately or publicly owned fixed wing aircraft or rotary wing aircraft used for, or intended to be used for, the transportation of persons experiencing physiological or psychological illness or injury who may need medical attention during transport. This may include dual or multipurpose vehicles that otherwise comply with this chapter and applicable regulations.
(4) "Air medical service" means an agency licensed under this chapter that responds to requests for patient care and transportation from hospitals and EMS agencies using a fixed wing aircraft or rotary wing aircraft.
(5) "Ambulance service" means an agency licensed under this chapter operated with the intent to provide personnel and equipment for medical treatment at an emergency scene, during transportation or during transfer of persons experiencing physiological or psychological illness or injury who may need medical attention during transport.
(6) "Applicant" means any organization that is requesting an agency license under this chapter and includes the following:
(a) An organization seeking a new license;
(b) An existing agency that intends to change the level of licensed personnel it utilizes;
(c) An existing agency that intends to change its geographic coverage area, except by agency annexation;
(d) An existing nontransport service that intends to provide ambulance service;
(e) An existing ambulance service that intends to discontinue transport and become a nontransport service.
(7) "Community emergency medical technician" or "community EMT" means an emergency medical technician or advanced emergency medical technician with additional standardized training who works within a designated community health emergency medical services program under local medical control as part of a community-based team of health and social services providers.
(8) "Community health emergency medical services" or "community health EMS" means the evaluation, advice or treatment of an eligible recipient outside of a hospital setting that is specifically requested for the purpose of preventing or improving a particular medical condition and that is provided by a licensed emergency medical services agency. Community health EMS involving or related to emergency response must be provided by or in coordination with the primary 911 response agency for that area.
(9) "Community paramedic" means a paramedic with additional standardized training who works within a designated community health emergency medical services program under local medical control as part of a community-based team of health and social services providers.
(10) "Division" means the Idaho military division of the office of the governor.
(11) "Eligible recipient" means an individual eligible to receive community health emergency medical services under this chapter and applicable state regulations or as determined by regulations of a local community health emergency medical services program.
(12) "Emergency medical responder" means a person who has met the qualifications for licensure as set forth in this chapter, is licensed under this chapter, carries out the practice of emergency care within the scope of practice determined by the division, and practices under the supervision of an Idaho licensed physician.
(13) "Emergency medical services" or "EMS" means aid rendered by an individual or group of individuals who do the following:
(a) Respond to a perceived need for medical care in order to prevent loss of life or aggravation of physiological or psychological illness or injury;
(b) Are prepared to provide interventions that are within the scope of practice as defined by the division;
(c) Use an alerting mechanism to initiate a response to requests for medical care; and
(d) Offer, advertise or attempt to respond as described in paragraphs (a) through (c) of this subsection.
(14) "Emergency medical technician" means a person who has met the qualifications for licensure as set forth in this chapter, is licensed under this chapter, carries out the practice of emergency care within the scope of practice determined by the division, and practices under the supervision of an Idaho licensed physician.
(15) "Licensed personnel" means those individuals who are emergency medical responders, emergency medical technicians, advanced emergency medical technicians and paramedics.
(16) "National emergency medical services information system technical assistance center" means an organization that validates software for compliance with the EMS data set defined by the United States department of transportation national highway traffic safety administration.
(17) "Nontransport service" means an agency licensed under this chapter, operated with the intent to provide personnel or equipment for medical stabilization at an emergency scene, but not intended to be the service that will actually transport sick or injured persons.
(18) "Paramedic" means a person who has met the qualifications for licensure as set forth in this chapter, is licensed under this chapter, carries out the practice of emergency care within the scope of practice determined by the division, and practices under the supervision of an Idaho licensed physician.
(19) "Supervision" means the medical direction by a licensed physician of activities provided by licensed personnel affiliated with a licensed ambulance, air medical or nontransport service, including but not limited to establishing standing orders and protocols, reviewing performance of licensed personnel, providing instructions for patient care via radio or telephone, and other oversight.
(20) "Transfer" means the transportation of a patient from one medical care facility to another.
[(46-903) (56-1012) 39-140, added 1976, ch. 187, sec. 2, p. 675; am. 1980, ch. 145, sec. 7, p. 313; am. 1992, ch. 110, sec. 1, p. 339; am. 1993, ch. 50, sec. 1, p. 131; am. and redesig. 1996, ch. 26, sec. 3, p. 62; am. 1999, ch. 131, sec. 1, p. 376; am. 2001, ch. 110, sec. 5, p. 378; am. 2006, ch. 421, sec. 1, p. 1301; am. 2009, ch. 189, sec. 2, p. 611; am. 2014, ch. 86, sec. 1, p. 235; am. 2015, ch. 157, sec. 3, p. 550; am. 2019, ch. 26, sec. 31, p. 74; am. and redesig. 2025, ch. 94, sec. 4, p. 451.]
(1) Consistent with provisions of this chapter, there is hereby established within the division an emergency medical services program. The adjutant general, as administrator of the division, shall supervise and administer the emergency medical services program and shall hire or cause to be hired the necessary personnel responsible for administering it. The responsibilities of the emergency medical services program shall include but are not limited to assisting qualified entities in providing first aid emergency medical services and providing transportation of the sick and injured. The division is authorized to establish regulations regarding the administration of emergency medical services, licensing, and certification in Idaho and to issue emergency medical services certifications, licenses, and permits.
(2) The division shall adopt standards concerning the administration of this chapter, including criteria for educational programs, certification and licensure of personnel, certification of EMS instructors, licensure of ambulance, air medical and nontransport services, manufacturing standards for ambulances and nontransport vehicles, criteria for the use of air medical services by licensed EMS personnel at emergency scenes, establishment of fees for training, inspections, and licensure, appropriate requirements for renewal of licensure of personnel and agencies, and the management of complaints, investigations, and license actions against licensed EMS personnel and agencies. Additionally, in consultation with the medical director, the division shall develop guidelines, standards, and procedures for reducing exposure to pathogens from human blood, tissue, or fluids. Such guidelines, standards, and procedures shall be made available to all law enforcement personnel, all emergency medical services personnel and agencies, and such other emergency personnel who request such information.
(3) By employment or contract, the division shall retain the services of a physician licensed in the state of Idaho with experience in emergency medicine to serve as medical director. The medical director shall not be the person hired by the adjutant general to administer the emergency medical services program. The medical director shall:
(a) Advise program leadership on standards for scope of practice and the required level of medical supervision by a physician for personnel and agencies licensed under this chapter;
(b) Advise program leadership on disciplinary actions against licensed personnel and agencies; and
(c) Carry out any other function assigned to him in law or at the request of program leadership.
[46-904, added 2025, ch. 94, sec. 2, p. 444.]
(1) The division shall be responsible for distributing moneys, subject to legislative appropriation, from the emergency medical services vehicle and equipment grant fund created in section 57-830, Idaho Code, to qualifying nonprofit and governmental entities that submit an application for a grant from the fund. Grants from the fund may cover the cost of vehicles and equipment, training, licensing expenses, communication technology, dispatch services, and costs associated with assuring the performance of planned coverage and emergency response, including highway safety and emergency response to motor vehicle accidents.
(a) The division shall approve grants from the fund based on the following criteria:
(i) The applicant is a nonprofit or governmental entity that holds a current license as an ambulance or nontransport service issued by the division;
(ii) The applicant has demonstrated need based on criteria established by the division;
(iii) The applicant has provided verification that it has received the approval and endorsement of a fire district, city, or county within its service area;
(iv) The applicant has certified that the title to any vehicle purchased with funds from the fund shall be in the name of the fire district, city, or county that endorsed the application and shall submit proof of titling to the division as soon as practicable; and
(v) The state of Idaho shall retain a security interest in the vehicle to secure the performance of the grant recipient to utilize the vehicle consistent with the intent described in the application.
(b) Notwithstanding the requirements of paragraph (a)(iii) and (iv) of this subsection, the division is authorized to approve and issue a grant to an applicant in the absence of an endorsement if the endorsement is withheld without adequate justification.
(2) The division shall be responsible for distributing moneys, subject to legislative appropriation, from the emergency medical services fund created in section 57-829, Idaho Code. Moneys in the fund shall be used exclusively for costs associated with emergency medical services. However, if the legislature appropriates moneys to the fund for sustainability grants to cover personnel and operating costs associated with assuring the sustainability and availability of emergency medical services, applicants may only be approved by the division subject to the following criteria:
(a) The applicant is a nonprofit or governmental entity that holds a current emergency medical services agency license issued by the division that authorizes the agency as a 911 response agency;
(b) The application clearly defines the applicant’s service area specific to 911 response;
(c) The applicant must certify, if it is eligible to bill for services, that it has billed health insurance carriers for at least eighty percent (80%) of eligible billable services it provided in the previous year. If the applicant is newly licensed and does not have twelve (12) months of historical billing information, the applicant must certify that it is currently billing and will continue to bill health insurance carriers for at least eighty percent (80%) of eligible services; and
(d) If the applicant fulfills the requirements of paragraphs (a), (b), and (c) of this subsection, the county in which the applicant provides 911 response services may, in its discretion, endorse the grant application of the requesting entity.
(3) The provision of emergency medical services is a government function. If the division approves applications for sustainability grants pursuant to subsection (2) of this section, counties are authorized and required to ensure that emergency medical services are reasonably available throughout the county.
(4) It is the intent of the legislature that counties that accept sustainability grants pursuant to subsection (2) of this section use a portion of the sustainability grant to implement or maintain community health EMS in the service area.
[46-905, added 2025, ch. 94, sec. 2, p. 445; am. 2025, ch. 245, sec. 1, p. 1096.]
The recognition of EMS personnel licensure interstate compact (REPLICA) is hereby enacted into law and entered into with all other jurisdictions legally joining therein, in the form substantially as follows:
SECTION I
PURPOSE
In order to protect the public through verification of competency and ensure accountability for patient care-related activities, all states license emergency medical services (EMS) personnel, such as emergency medical technicians (EMTs), advanced EMTs and paramedics. This compact is intended to facilitate the day-to-day movement of EMS personnel across state boundaries in the performance of their EMS duties as assigned by an appropriate authority and authorize state EMS offices to afford immediate legal recognition to EMS personnel licensed in a member state. This compact recognizes that states have a vested interest in protecting the public’s health and safety through their licensing and regulation of EMS personnel and that such state regulation shared among the member states will best protect public health and safety. This compact is designed to achieve the following purposes and objectives:
(1) Increase public access to EMS personnel;
(2) Enhance the states’ ability to protect the public’s health and safety, especially patient safety;
(3) Encourage the cooperation of member states in the areas of EMS personnel licensure and regulation;
(4) Support licensing of military members who are separating from an active duty tour and their spouses;
(5) Facilitate the exchange of information between member states regarding EMS personnel licensure, adverse action and significant investigatory information;
(6) Promote compliance with the laws governing EMS personnel practice in each member state; and
(7) Invest all member states with the authority to hold EMS personnel accountable through the mutual recognition of member state licenses.
SECTION II
DEFINITIONS
As used in this compact:
(1) "Advanced emergency medical technician" (AEMT) means an individual licensed with cognitive knowledge and a scope of practice that corresponds to that level in the national EMS education standards and national EMS scope of practice model.
(2) "Adverse action" means any administrative, civil, equitable or criminal action permitted by a state’s laws that may be imposed against licensed EMS personnel by a state EMS authority or state court, including but not limited to actions against an individual’s license such as revocation, suspension, probation, consent agreement, monitoring or other limitation or encumbrance on the individual’s practice, letters of reprimand or admonition, fines, criminal convictions and state court judgments enforcing adverse actions by the state EMS authority.
(3) "Alternative program" means a voluntary, nondisciplinary substance abuse recovery program approved by a state EMS authority.
(4) "Certification" means the successful verification of entry-level cognitive and psychomotor competency using a reliable, validated and legally defensible examination.
(5) "Commission" means the national administrative body of which all states that have enacted the compact are members.
(6) "Emergency medical technician" (EMT) means an individual licensed with cognitive knowledge and a scope of practice that corresponds to that level in the national EMS education standards and national EMS scope of practice model.
(7) "Home state" means a member state where an individual is licensed to practice emergency medical services.
(8) "License" means the authorization by a state for an individual to practice as an EMT, AEMT, paramedic or a level in between EMT and paramedic.
(9) "Medical director" means a physician licensed in a member state who is accountable for the care delivered by EMS personnel.
(10) "Member state" means a state that has enacted this compact.
(11) "Paramedic" means an individual licensed with cognitive knowledge and a scope of practice that corresponds to that level in the national EMS education standards and national EMS scope of practice model.
(12) "Privilege to practice" means an individual’s authority to deliver emergency medical services in remote states as authorized under this compact.
(13) "Remote state" means a member state in which an individual is not licensed.
(14) "Restricted" means the outcome of an adverse action that limits a license or the privilege to practice.
(15) "Rule" means a written statement by the commission promulgated pursuant to section XII of this compact that is of general applicability; implements, interprets or prescribes a policy or provision of the compact; or is an organizational, procedural or practice requirement of the commission and has the force and effect of statutory law in a member state and includes the amendment, repeal or suspension of an existing rule.
(16) "Scope of practice" means defined parameters of various duties or services that may be provided by an individual with specific credentials. Whether regulated by rule, statute or court decision, it tends to represent the limits of services an individual may perform.
(17) "Significant investigatory information" means:
(a) Investigative information that a state EMS authority, after a preliminary inquiry that includes notification and an opportunity to respond if required by state law, has reason to believe, if proved true, would result in the imposition of an adverse action on a license or privilege to practice; or
(b) Investigative information that indicates that the individual represents an immediate threat to public health and safety regardless of whether the individual has been notified and had an opportunity to respond.
(18) "State" means any state, commonwealth, district or territory of the United States.
(19) "State EMS authority" means the board, office or other agency with the legislative mandate to license EMS personnel.
SECTION III
HOME STATE LICENSE
(1) Any member state in which an individual holds a current license shall be deemed a home state for purposes of this compact.
(2) Any member state may require an individual to obtain and retain a license to be authorized to practice in the member state under circumstances not authorized by the privilege to practice under the terms of this compact.
(3) A home state’s license authorizes an individual to practice in a remote state under the privilege to practice only if the home state:
(a) Currently requires the use of the national registry of emergency medical technicians (NREMT) examination as a condition of issuing initial licenses at the EMT and paramedic levels;
(b) Has a mechanism in place for receiving and investigating complaints about individuals;
(c) Notifies the commission, in compliance with the terms of this compact, of any adverse action or significant investigatory information regarding an individual;
(d) No later than five (5) years after activation of the compact, requires a criminal background check of all applicants for initial licensure, including the use of the results of fingerprint or other biometric data checks compliant with the requirements of the federal bureau of investigation with the exception of federal employees who have suitability determination in accordance with 5 CFR 731.202 and submit documentation of such as promulgated in the rules of the commission; and
(e) Complies with the rules of the commission.
SECTION IV
COMPACT PRIVILEGE TO PRACTICE
(1) Member states shall recognize the privilege to practice of an individual licensed in another member state that is in conformance with section III of this compact.
(2) To exercise the privilege to practice under the terms and provisions of this compact, an individual must:
(a) Be at least eighteen (18) years of age;
(b) Possess a current unrestricted license in a member state as an EMT, AEMT, paramedic or state recognized level of licensure with a scope of practice and authority between EMT and paramedic; and
(c) Practice under the supervision of a medical director.
(3) An individual providing patient care in a remote state under the privilege to practice shall function within the scope of practice authorized by the home state unless and until modified by an appropriate authority in the remote state as may be defined in the rules of the commission.
(4) Except as provided in this section, an individual practicing in a remote state will be subject to the remote state’s authority and laws. A remote state may, in accordance with due process and that state’s laws, restrict, suspend or revoke an individual’s privilege to practice in the remote state and may take any other necessary actions to protect the health and safety of its citizens. If a remote state takes action, it shall promptly notify the home state and the commission.
(5) If an individual’s license in any home state is restricted or suspended, the individual shall not be eligible to practice in a remote state under the privilege to practice until the individual’s home state license is restored.
(6) If an individual’s privilege to practice in any remote state is restricted, suspended or revoked, the individual shall not be eligible to practice in any remote state until the individual’s privilege to practice is restored.
SECTION V
CONDITIONS OF PRACTICE IN A REMOTE STATE
An individual may practice in a remote state under a privilege to practice only in the performance of the individual’s EMS duties as assigned by an appropriate authority, as defined in the rules of the commission, and under the following circumstances:
(1) The individual originates a patient transport in a home state and transports the patient to a remote state;
(2) The individual originates in the home state and enters a remote state to pick up a patient and provide care and transport of the patient to the home state;
(3) The individual enters a remote state to provide patient care and/or transport within that remote state;
(4) The individual enters a remote state to pick up a patient and provide care and transport to a third member state; and
(5) Other conditions as determined by rules promulgated by the commission.
SECTION VI
RELATIONSHIP TO EMERGENCY MANAGEMENT ASSISTANCE COMPACT
Upon a member state’s governor’s declaration of a state of emergency or disaster that activates the emergency management assistance compact (EMAC), all relevant terms and provisions of EMAC shall apply and to the extent any terms or provisions of this compact conflict with EMAC, the terms of EMAC shall prevail with respect to any individual practicing in the remote state in response to such declaration.
SECTION VII
VETERANS, SERVICE MEMBERS SEPARATING FROM ACTIVE DUTY MILITARY, AND THEIR SPOUSES
(1) Member states shall consider a veteran, active military service member, and member of the national guard and reserves separating from an active duty tour, and a spouse thereof, who holds a current valid and unrestricted NREMT certification at or above the level of the state license being sought as satisfying the minimum training and examination requirements for such licensure.
(2) Member states shall expedite the processing of licensure applications submitted by veterans, active military service members, and members of the national guard and reserves separating from an active duty tour, and their spouses.
(3) All individuals functioning with a privilege to practice under this section remain subject to the adverse actions provisions of section VIII of this compact.
SECTION VIII
ADVERSE ACTIONS
(1) A home state shall have exclusive power to impose adverse action against an individual’s license issued by the home state.
(2) If an individual’s license in any home state is restricted or suspended, the individual shall not be eligible to practice in a remote state under the privilege to practice until the individual’s home state license is restored.
(a) All home state adverse action orders shall include a statement that the individual’s compact privileges are inactive. The order may allow the individual to practice in remote states with prior written authorization from both the home state and remote state’s EMS authority.
(b) An individual currently subject to adverse action in the home state shall not practice in any remote state without prior written authorization from both the home state and remote state’s EMS authority.
(3) A member state shall report adverse actions and any occurrences that the individual’s compact privileges are restricted, suspended or revoked to the commission in accordance with the rules of the commission.
(4) A remote state may take adverse action on an individual’s privilege to practice within that state.
(5) Any member state may take adverse action against an individual’s privilege to practice in that state based on the factual findings of another member state, as long as each state follows its own procedures for imposing such adverse action.
(6) A home state’s EMS authority shall investigate and take appropriate action with respect to reported conduct in a remote state as it would if such conduct had occurred within the home state. In such cases, the home state’s law shall control in determining the appropriate adverse action.
(7) Nothing in this compact shall override a member state’s decision that participation in an alternative program may be used in lieu of adverse action and that such participation shall remain nonpublic if required by the member state’s laws. Member states must require individuals who enter any alternative programs to agree not to practice in any other member state during the term of the alternative program without prior authorization from such other member state.
SECTION IX
ADDITIONAL POWERS INVESTED IN A MEMBER STATE’S EMS AUTHORITY
A member state’s EMS authority, in addition to any other powers granted under state law, is authorized under this compact to:
(1) Issue subpoenas for both hearings and investigations that require the attendance and testimony of witnesses and the production of evidence. Subpoenas issued by a member state’s EMS authority for the attendance and testimony of witnesses, and/or the production of evidence from another member state, shall be enforced in the remote state by any court of competent jurisdiction, according to that court’s practice and procedure in considering subpoenas issued in its own proceedings. The issuing state EMS authority shall pay any witness fees, travel expenses, mileage and other fees required by the service statutes of the state where the witnesses and/or evidence are located; and
(2) Issue cease and desist orders to restrict, suspend or revoke an individual’s privilege to practice in the state.
SECTION X
ESTABLISHMENT OF THE INTERSTATE COMMISSION FOR EMS PERSONNEL PRACTICE
(1) The compact states hereby create and establish a joint public agency known as the interstate commission for EMS personnel practice.
(a) The commission is a body politic and an instrumentality of the compact states.
(b) Venue is proper and judicial proceedings by or against the commission shall be brought solely and exclusively in a court of competent jurisdiction where the principal office of the commission is located. The commission may waive venue and jurisdictional defenses to the extent it adopts or consents to participate in alternative dispute resolution proceedings.
(c) Nothing in this compact shall be construed to be a waiver of sovereign immunity.
(2) Membership, voting, and meetings.
(a) Each member state shall have and be limited to one (1) delegate. The responsible official of the state EMS authority or such official’s designee shall be the delegate to this compact for each member state. Any delegate may be removed or suspended from office as provided by the law of the state from which the delegate is appointed. Any vacancy occurring in the commission shall be filled in accordance with the laws of the member state in which the vacancy exists. In the event that more than one (1) board, office or other agency with the legislative mandate to license EMS personnel at and above the level of EMT exists, the governor of the state will determine which entity will be responsible for assigning the delegate.
(b) Each delegate shall be entitled to one (1) vote with regard to the promulgation of rules and creation of bylaws and shall otherwise have an opportunity to participate in the business and affairs of the commission. A delegate shall vote in person or by such other means as provided in the bylaws. The bylaws may provide for delegates’ participation in meetings by telephone or other means of communication.
(c) The commission shall meet at least once during each calendar year. Additional meetings shall be held as set forth in the bylaws.
(d) All meetings shall be open to the public, and public notice of meetings shall be given in the same manner as required under the rulemaking provisions in section XII of this compact.
(e) The commission may convene in a closed, nonpublic meeting if the commission must discuss noncompliance of a member state with its obligations under the compact; the employment, compensation, discipline or other personnel matters, practices or procedures related to specific employees or other matters related to the commission’s internal personnel practices and procedures; current, threatened or reasonably anticipated litigation; negotiation of contracts for the purchase or sale of goods, services or real estate; accusing any person of a crime or formally censuring any person; disclosure of trade secrets or commercial or financial information that is privileged or confidential; disclosure of information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy; disclosure of investigatory records compiled for law enforcement purposes; disclosure of information related to any investigatory reports prepared by or on behalf of or for use of the commission or other committee charged with responsibility of investigation or determination of compliance issues pursuant to the compact; or matters specifically exempted from disclosure by federal or member state statute.
(f) If a meeting, or portion of a meeting, is closed pursuant to this provision, the commission’s legal counsel or designee shall certify that the meeting may be closed and shall reference each relevant exempting provision. The commission shall keep minutes that fully and clearly describe all matters discussed in a meeting and shall provide a full and accurate summary of actions taken, and the reasons therefore, including a description of the views expressed. All documents considered in connection with an action shall be identified in such minutes. All minutes and documents of a closed meeting shall remain under seal, subject to release by a majority vote of the commission or order of a court of competent jurisdiction.
(3) The commission shall, by a majority vote of the delegates, prescribe bylaws and/or rules to govern its conduct as may be necessary or appropriate to carry out the purposes and exercise the powers of the compact, including but not limited to:
(a) Establishing the fiscal year of the commission;
(b) Providing reasonable standards and procedures for the establishment and meetings of other committees; and governing any general or specific delegation of any authority or function of the commission;
(c) Providing reasonable procedures for calling and conducting meetings of the commission, ensuring reasonable advance notice of all meetings, and providing an opportunity for attendance of such meetings by interested parties, with enumerated exceptions designed to protect the public’s interest, the privacy of individuals, and proprietary information, including trade secrets. The commission may meet in closed session only after a majority of the membership votes to close a meeting in whole or in part. As soon as practicable, the commission must make public a copy of the vote to close the meeting revealing the vote of each member with no proxy votes allowed;
(d) Establishing the titles, duties and authority, and reasonable procedures for the election of the officers of the commission;
(e) Providing reasonable standards and procedures for the establishment of the personnel policies and programs of the commission. Notwithstanding any civil service or other similar laws of any member state, the bylaws shall exclusively govern the personnel policies and programs of the commission;
(f) Promulgating a code of ethics to address permissible and prohibited activities of commission members and employees;
(g) Providing a mechanism for winding up the operations of the commission and the equitable disposition of any surplus funds that may exist after the termination of the compact after the payment and/or reserving of all of its debts and obligations;
(h) Publishing its bylaws and filing a copy thereof, and a copy of any amendment thereto, with the appropriate agency or officer in each of the member states, if any;
(i) Maintaining its financial records in accordance with the bylaws; and
(j) Meeting and taking such actions as are consistent with the provisions of this compact and the bylaws.
(4) The commission shall have the following powers:
(a) The authority to promulgate uniform rules to facilitate and coordinate implementation and administration of this compact. The rules shall have the force and effect of law and shall be binding in all member states;
(b) To bring and prosecute legal proceedings or actions in the name of the commission, provided that the standing of any state EMS authority or other regulatory body responsible for EMS personnel licensure to sue or be sued under applicable law shall not be affected;
(c) To purchase and maintain insurance and bonds;
(d) To borrow, accept or contract for services of personnel, including but not limited to employees of a member state;
(e) To hire employees, elect or appoint officers, fix compensation, define duties, grant such individuals appropriate authority to carry out the purposes of the compact, and to establish the commission’s personnel policies and programs relating to conflicts of interest, qualifications of personnel, and other related personnel matters;
(f) To accept any and all appropriate donations and grants of money, equipment, supplies, materials and services, and to receive, utilize and dispose of the same; provided that at all times the commission shall strive to avoid any appearance of impropriety and/or conflict of interest;
(g) To lease, purchase, accept appropriate gifts or donations of, or otherwise to own, hold, improve or use, any property, real, personal or mixed; provided that at all times the commission shall strive to avoid any appearance of impropriety;
(h) To sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, real, personal or mixed;
(i) To establish a budget and make expenditures;
(j) To borrow money;
(k) To appoint committees, including advisory committees comprised of members, state regulators, state legislators or their representatives, and consumer representatives, and such other interested persons as may be designated in this compact and the bylaws;
(l) To provide and receive information from, and to cooperate with, law enforcement agencies;
(m) To adopt and use an official seal; and
(n) To perform such other functions as may be necessary or appropriate to achieve the purposes of this compact consistent with the state regulation of EMS personnel licensure and practice.
(5) Financing of the commission.
(a) The commission shall pay, or provide for the payment of, the reasonable expenses of its establishment, organization and ongoing activities.
(b) The commission may accept any and all appropriate revenue sources, donations, and grants of money, equipment, supplies, materials and services.
(c) The commission may levy on and collect an annual assessment from each member state or impose fees on other parties to cover the cost of the operations and activities of the commission and its staff, which must be in a total amount sufficient to cover its annual budget as approved each year for which revenue is not provided by other sources. The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the commission, which shall promulgate a rule binding upon all member states.
(d) The commission shall not incur obligations of any kind prior to securing the funds adequate to meet the same; nor shall the commission pledge the credit of any of the member states, except by and with the authority of the member state.
(e) The commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the commission shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the commission shall be audited yearly by a certified or licensed public accountant, and the report of the audit shall be included in and become part of the annual report of the commission.
(6) Qualified immunity, defense, and indemnification.
(a) The members, officers, executive director, employees and representatives of the commission shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused by or arising out of any actual or alleged act, error or omission that occurred, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities; provided that nothing in this paragraph shall be construed to protect any such person from suit and/or liability for any damage, loss, injury or liability caused by the intentional or willful or wanton misconduct of that person.
(b) The commission shall defend any member, officer, executive director, employee or representative of the commission in any civil action seeking to impose liability arising out of any actual or alleged act, error or omission that occurred within the scope of commission employment, duties or responsibilities, or that the person against whom the claim is made had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities; provided that nothing in this section shall be construed to prohibit that person from retaining such person’s own counsel; and provided further, that the actual or alleged act, error or omission did not result from that person’s intentional or willful or wanton misconduct.
(c) The commission shall indemnify and hold harmless any member, officer, executive director, employee or representative of the commission for the amount of any settlement or judgment obtained against that person arising out of any actual or alleged act, error or omission that occurred within the scope of commission employment, duties or responsibilities, or that such person had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities, provided that the actual or alleged act, error or omission did not result from the intentional or willful or wanton misconduct of that person.
SECTION XI
COORDINATED DATABASE
(1) The commission shall provide for the development and maintenance of a coordinated database and reporting system containing licensure, adverse action and significant investigatory information on all licensed individuals in member states.
(2) Notwithstanding any other provision of state law to the contrary, a member state shall submit a uniform data set to the coordinated database on all individuals to whom this compact is applicable as required by the rules of the commission, including:
(a) Identifying information;
(b) Licensure data;
(c) Significant investigatory information;
(d) Adverse actions against an individual’s license;
(e) An indicator that an individual’s privilege to practice is restricted, suspended or revoked;
(f) Nonconfidential information related to alternative program participation;
(g) Any denial of application for licensure and the reason(s) for such denial; and
(h) Other information that may facilitate the administration of this compact, as determined by the rules of the commission.
(3) The coordinated database administrator shall promptly notify all member states of any adverse action taken against, or significant investigative information on, any individual in a member state.
(4) Member states contributing information to the coordinated database may designate information that may not be shared with the public without the express permission of the contributing state.
(5) Any information submitted to the coordinated database that is subsequently required to be expunged by the laws of the member state contributing the information shall be removed from the coordinated database.
SECTION XII
RULEMAKING
(1) The commission shall exercise its rulemaking powers pursuant to the criteria set forth in this section and the rules adopted thereunder. Rules and amendments shall become binding as of the date specified in each rule or amendment.
(2) If a majority of the legislatures of the member states rejects a rule, by enactment of a statute or resolution in the same manner used to adopt the compact, then such rule shall have no further force and effect in any member state.
(3) Rules or amendments to the rules shall be adopted at a regular or special meeting of the commission.
(4) Prior to promulgation and adoption of a final rule or rules by the commission, and at least sixty (60) days in advance of the meeting at which the rule will be considered and voted upon, the commission shall file a notice of proposed rulemaking:
(a) On the website of the commission; and
(b) On the website of each member state EMS authority or the publication in which each state would otherwise publish proposed rules.
(5) The notice of proposed rulemaking shall include:
(a) The proposed time, date and location of the meeting in which the rule will be considered and voted upon;
(b) The text of the proposed rule or amendment and the reason for the proposed rule;
(c) A request for comments on the proposed rule from any interested person; and
(d) The manner in which interested persons may submit notice to the commission of their intention to attend the public hearing and any written comments.
(6) Prior to adoption of a proposed rule, the commission shall allow persons to submit written data, facts, opinions and arguments, which shall be made available to the public.
(7) The commission shall grant an opportunity for a public hearing before it adopts a rule or amendment if a hearing is requested by:
(a) At least twenty-five (25) persons;
(b) A governmental subdivision or agency; or
(c) An association having at least twenty-five (25) members.
(8) If a hearing is held on the proposed rule or amendment, the commission shall publish the place, time and date of the scheduled public hearing.
(a) All persons wishing to be heard at the hearing shall notify the executive director of the commission or other designated member in writing of their desire to appear and testify at the hearing not less than five (5) business days before the scheduled date of the hearing.
(b) Hearings shall be conducted in a manner providing each person who wishes to comment a fair and reasonable opportunity to comment orally or in writing.
(c) No transcript of the hearing is required, unless a written request for a transcript is made, in which case the person requesting the transcript shall bear the cost of producing the transcript. A recording may be made in lieu of a transcript under the same terms and conditions as a transcript. This subsection shall not preclude the commission from making a transcript or recording of the hearing if it so chooses.
(d) Nothing in this section shall be construed as requiring a separate hearing on each rule. Rules may be grouped for the convenience of the commission at hearings required by this section.
(9) Following the scheduled hearing date, or by the close of business on the scheduled hearing date if the hearing was not held, the commission shall consider all written and oral comments received.
(10) The commission shall, by majority vote of all members, take final action on the proposed rule and shall determine the effective date of the rule, if any, based on the rulemaking record and the full text of the rule.
(11) If no written notice of intent to attend the public hearing by interested parties is received, the commission may proceed with promulgation of the proposed rule without a public hearing.
(12) Upon determination that an emergency exists, the commission may consider and adopt an emergency rule without prior notice, opportunity for comment, or hearing, provided that the usual rulemaking procedures provided in the compact and in this section shall be retroactively applied to the rule as soon as reasonably possible, in no event later than ninety (90) days after the effective date of the rule. For the purposes of this provision, an emergency rule is one that must be adopted immediately in order to:
(a) Meet an imminent threat to public health, safety or welfare;
(b) Prevent a loss of commission or member state funds;
(c) Meet a deadline for the promulgation of an administrative rule that is established by federal law or rule; or
(d) Protect public health and safety.
(13) The commission or an authorized committee of the commission may direct revisions to a previously adopted rule or amendment for purposes of correcting typographical errors, errors in format, errors in consistency, or grammatical errors. Public notice of any revisions shall be posted on the website of the commission. The revision shall be subject to challenge by any person for a period of thirty (30) days after posting. The revision may be challenged only on grounds that the revision results in a material change to a rule. A challenge shall be made in writing, and delivered to the chair of the commission prior to the end of the notice period. If no challenge is made, the revision will take effect without further action. If the revision is challenged, the revision may not take effect without the approval of the commission.
SECTION XIII
OVERSIGHT, DISPUTE RESOLUTION, AND ENFORCEMENT
(1) Oversight.
(a) The executive, legislative and judicial branches of state government in each member state shall enforce this compact and take all actions necessary and appropriate to effectuate the compact’s purposes and intent. The provisions of this compact and the rules promulgated hereunder shall have standing as statutory law.
(b) All courts shall take judicial notice of the compact and the rules in any judicial or administrative proceeding in a member state pertaining to the subject matter of this compact that may affect the powers, responsibilities or actions of the commission.
(c) The commission shall be entitled to receive service of process in any such proceeding, and shall have standing to intervene in such a proceeding for all purposes. Failure to provide service of process to the commission shall render a judgment or order void as to the commission, this compact, or promulgated rules.
(2) Default, technical assistance, and termination.
(a) If the commission determines that a member state has defaulted in the performance of its obligations or responsibilities under this compact or the promulgated rules, the commission shall provide written notice to the defaulting state and other member states of the nature of the default, the proposed means of curing the default and/or any other action to be taken by the commission; and provide remedial training and specific technical assistance regarding the default.
(b) If a state in default fails to cure the default, the defaulting state may be terminated from the compact upon an affirmative vote of a majority of the member states, and all rights, privileges and benefits conferred by this compact may be terminated on the effective date of termination. A cure of the default does not relieve the offending state of obligations or liabilities incurred during the period of default.
(c) Termination of membership in the compact shall be imposed only after all other means of securing compliance have been exhausted. Notice of intent to suspend or terminate shall be given by the commission to the governor, the majority and minority leaders of the defaulting state’s legislature, and each of the member states.
(d) A state that has been terminated is responsible for all assessments, obligations and liabilities incurred through the effective date of termination, including obligations that extend beyond the effective date of termination.
(e) The commission shall not bear any costs related to a state that is found to be in default or that has been terminated from the compact, unless agreed upon in writing between the commission and the defaulting state.
(f) The defaulting state may appeal the action of the commission by petitioning the United States district court for the District of Columbia or the federal district where the commission has its principal offices. The prevailing member shall be awarded all costs of such litigation, including reasonable attorney’s fees.
(3) Dispute resolution.
(a) Upon request by a member state, the commission shall attempt to resolve disputes related to the compact that arise among member states and between member and nonmember states.
(b) The commission shall promulgate a rule providing for both mediation and binding dispute resolution for disputes as appropriate.
(4) Enforcement.
(a) The commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact.
(b) By majority vote, the commission may initiate legal action in the United States district court for the District of Columbia or the federal district where the commission has its principal offices against a member state in default to enforce compliance with the provisions of the compact and its promulgated rules and bylaws. The relief sought may include both injunctive relief and damages. In the event judicial enforcement is necessary, the prevailing member shall be awarded all costs of such litigation, including reasonable attorney’s fees.
(c) The remedies in this section shall not be the exclusive remedies of the commission. The commission may pursue any other remedies available under federal or state law.
SECTION XIV
DATE OF IMPLEMENTATION OF THE INTERSTATE COMMISSION FOR EMS PERSONNEL PRACTICE AND ASSOCIATED RULES, WITHDRAWAL, AND AMENDMENT
(1) The compact shall come into effect on the date on which the compact statute is enacted into law in the tenth member state. The provisions, which become effective at that time, shall be limited to the powers granted to the commission relating to assembly and the promulgation of rules. Thereafter, the commission shall meet and exercise rulemaking powers necessary to the implementation and administration of the compact.
(2) Any state that joins the compact subsequent to the commission’s initial adoption of the rules shall be subject to the rules as they exist on the date on which the compact becomes law in that state. Any rule that has been previously adopted by the commission shall have the full force and effect of law on the day the compact becomes law in that state.
(3) Any member state may withdraw from this compact by enacting a statute repealing the same.
(a) A member state’s withdrawal shall not take effect until six (6) months after enactment of the repealing statute.
(b) Withdrawal shall not affect the continuing requirement of the withdrawing state’s EMS authority to comply with the investigative and adverse action reporting requirements of this compact prior to the effective date of withdrawal.
(4) Nothing contained in this compact shall be construed to invalidate or prevent any EMS personnel licensure agreement or other cooperative arrangement between a member state and a nonmember state that does not conflict with the provisions of this compact.
(5) This compact may be amended by the member states. No amendment to this compact shall become effective and binding upon any member state until it is enacted into the laws of all member states.
SECTION XV
CONSTRUCTION AND SEVERABILITY
This compact shall be liberally construed so as to effectuate the purposes thereof. If this compact shall be held contrary to the constitution of any state member thereto, the compact shall remain in full force and effect as to the remaining member states. Nothing in this compact supersedes state law or rules related to licensure of EMS agencies.
[46-906, added 2025, ch. 95, sec. 1, p. 498.]
Persons licensed under this chapter shall be authorized to perform such acts under written or oral authorization of a licensed physician as established by the division, including but not limited to administration of intravenous solutions and drugs, cardiac defibrillation, airway management, endotracheal intubation, community health emergency medical services and other patient care.
[(46-907) (56-1013) 39-141, added 1996, ch. 26, sec. 4, p. 63; am. and redesig. 2001, ch. 110, sec. 6, p. 379; am. 2006, ch. 421, sec. 2, p. 1303; am. 2009, ch. 189, sec. 3, p. 614; am. 2015, ch. 157, sec. 4, p. 552; am. and redesig. 2025, ch. 94, sec. 5, p. 453.]
(1) No act or omission of any person who is duly licensed under this chapter done or omitted in good faith while rendering emergency medical services to a person or persons who are perceived to need immediate care in order to prevent loss of life or aggravation of physiological or psychological illness or injury shall impose any liability upon those personnel, the supervising physician, the hospital, the organization providing the service, or on a federal, state, county, city or other local governmental unit, or on employees of such governmental unit, unless such provider of care or such personnel is shown to have caused injury and damages to such person or persons as a proximate result of such personnel’s reckless or grossly negligent misconduct, which shall be the sole grounds for civil liability of such persons in the provision of care or assistance under this chapter, regardless of the circumstance under which such care or assistance may be provided. This section shall not relieve the organization or agency operating the service from the duty of securing, maintaining and operating the equipment and licensure designated for use in performing the emergency medical services.
(2) The provisions of subsection (1) of this section shall apply to licensed personnel of another state of the United States who enter this state in response to an emergency to render emergency medical services to a person who is perceived to need immediate care in order to prevent loss of life or aggravation of physiological or psychological illness or injury.
(3) No act or omission of any person authorized under this chapter to provide community health emergency medical services shall impose any liability on such person or the person’s agency or supervising physician where the act or omission occurs in the course of providing authorized services and is done or omitted in good faith, unless the person is shown to have caused injury as a result of reckless or grossly negligent misconduct.
[(46-908) (56-1014) 39-142, added 1976, ch. 187, sec. 3, p. 676; am. 1996, ch. 26, sec. 5, p. 64; am. and redesig. 2001, ch. 110, sec. 7, p. 380; am. 2009, ch. 189, sec. 5, p. 615; am. 2010, ch. 138, sec. 3, p. 293; am. 2015, ch. 157, sec. 5, p. 553; am. and redesig. 2025, ch. 94, sec. 6, p. 453.]
Notwithstanding the provisions of section 32-1015, Idaho Code, no person licensed under this chapter or physician or hospital licensed in this state shall be subject to civil liability based solely on failure to obtain consent in rendering emergency medical, surgical, hospital or health services to any individual regardless of age where that individual is unable to give this consent for any reason and there is no other person reasonably available who is legally authorized to consent to the providing of such care; provided, however, that such person, physician, or hospital has acted in good faith and without knowledge of facts negating consent. The provision or refusal of consent under this chapter shall be governed by chapter 45, title 39, Idaho Code.
[(46-909) (56-1015) 39-143, added 1976, ch. 187, sec. 4, p. 674; am. 1996, ch. 26, sec. 6, p. 61; am. and redesig. 2001, ch. 110, sec. 8, p. 373; am. 2005, ch. 120, sec. 7, p. 393; am. 2009, ch. 189, sec. 6, p. 616; am. and redesig. 2025, ch. 94, sec. 7, p. 454.]
(1) Each ambulance service, air medical service and nontransport service shall be licensed under this chapter based on the level of licensed personnel it utilizes, transport capability and self-declared geographic coverage area and shall meet the following standards:
(a) Personnel during transport or transfer — There shall be at least two (2) crew members on each patient transport or transfer, with the crew member delivering patient care being, at a minimum, a licensed emergency medical technician (EMT) or a licensed emergency medical responder (EMR) with a valid ambulance certification issued by the division.
(b) Dispatch — Each licensed EMS agency shall have a twenty-four (24) hour dispatch arrangement and shall respond to calls on a twenty-four (24) hour basis.
(c) Agency inspections and licensing — The division shall conduct inspections at least annually related to agency licensing or shall contract to have the inspections carried out. Each agency shall have a current state license in order to operate.
(d) Ambulance service minimum standards waiver — The controlling authority providing ambulance services may petition the division for waiver of the ambulance standards of subsection (2) of this section if compliance with these standards would cause undue hardship on the community being served, or would result in abandonment of ambulance services.
(e) Nontransport service minimum standards waiver — The controlling authority providing nontransport services may petition the division for waiver of the twenty-four (24) hour response requirement of this section if the petition demonstrates that the community, setting, industrial site or event is not populated on a twenty-four (24) hour basis or does not exist on a three hundred sixty-five (365) day per year basis or if compliance with these standards would cause undue hardship on the community being served or would result in abandonment of nontransport services.
(f) Supervision — A licensed physician shall supervise the medical activities provided by licensed personnel affiliated with the licensed agency, including but not limited to establishing standing orders and protocols, reviewing performance of licensed personnel, approving methods for licensed personnel to receive instructions for patient care via radio, telephone or in person, and other oversight as provided in regulation.
(2) Applicants must submit the following information with their applications and agree to meet the following requirements as a condition of licensure:
(a) A declaration of anticipated applicant agency costs and revenues; a statement of projected changes in response time; and a narrative describing projected clinical benefits to patients resulting from licensure using methods defined in applicable regulations concerning such matters on an application provided by the division; and
(b) Collect and report data to the division upon receiving a license using a data collection system that is validated as compliant by the national emergency medical services information system technical assistance center in accordance with applicable regulation.
(3) The division will provide notice of any such application to all cities, counties and other units of local government that have any geographic coverage area in common with the applicant in accordance with applicable regulations. Such notice will include a summary of the applicant data supplied to the division. Any other division use of the cost and revenue data supplied by applicants is limited exclusively to informational purposes.
(4) If the division denies an application for any reason, then such decision may be appealed to the office of administrative hearings within forty-two (42) days of the date of the issuance of the denial at the request of the applicant whose request for a license was denied.
(a) The office of administrative hearings shall, within twenty-eight (28) days of receipt of the request, review the full record regarding the application and convene a public hearing regarding the appeal. After the public hearing, the hearing officer shall submit a written recommendation to the division and to the applicant requesting review. The recommendation by the hearing officer either to affirm or reverse the division’s decision shall be based on the full record regarding the application, including this chapter and the regulations and standards established under this chapter. The recommendation shall be in writing and accompanied by a reasoned opinion.
(b) Within twenty-eight (28) days following the issuance of the hearing officer’s written recommendation, the division shall either affirm or reverse its initial decision.
(c) If, upon reconsideration of a decision to deny an application, the division:
(i) Reverses its initial decision and approves the application, then there shall be no further appeal; or
(ii) Affirms its initial decision denying the application, then the applicant may appeal as set forth in chapter 52, title 67, Idaho Code.
[(46-910) (56-1016) 39-144, added 1976, ch. 187, sec. 5, p. 677; am. 1993, ch. 50, sec. 2, p. 131; am. 1996, ch. 26, sec. 7, p. 64; am. and redesig. 2001, ch. 110, sec. 9, p. 380; am. 2006, ch. 421, sec. 4, p. 1305; am. 2009, ch. 189, sec. 7, p. 616; am. 2018, ch. 101, sec. 1, p. 212; am. and redesig. 2025, ch. 94, sec. 8, p. 454.]
(1) Subject to the provisions of chapter 52, title 67, Idaho Code, the division, upon recommendation of the EMS medical director, may deny a license or refuse to renew a license for a person, or may suspend or revoke a license or may impose probationary conditions, if the holder of a license or the applicant for a license has engaged in unprofessional conduct that has endangered or is likely to endanger the health, welfare, or safety of the public. Such unprofessional conduct includes but is not limited to:
(a) Obtaining a license by means of fraud, misrepresentation, or concealment of a material fact;
(b) Being found guilty of unprofessional conduct as defined by the division;
(c) Being convicted of a crime that would have a direct and adverse bearing on the licensee’s ability to practice or perform emergency medical care competently;
(d) The unauthorized practice of medicine;
(e) Violating any provisions of this chapter or any regulations adopted under this chapter; and
(f) Being found mentally incompetent by a court of competent jurisdiction.
(2) Subject to the provisions of chapter 52, title 67, Idaho Code, the division may deny, revoke, or refuse to renew a license of an agency, or may impose probationary conditions or fines as a condition of an agency’s ability to retain a license in accordance with regulations adopted by the division.
(3) A denial, refusal to renew, suspension, revocation, or imposition of probationary conditions on a license may be ordered by the division after opportunity for a hearing as provided in section 46-910(4), Idaho Code.
(4) An application for reinstatement may be filed with the division one (1) year from the date of license revocation. In the event a timely application is filed, the division, upon recommendation of the EMS medical director, may accept or reject the application for reinstatement. An opportunity for a hearing as provided in section 46-910(4), Idaho Code, shall follow any rejection under this subsection, and the opportunity for appeal as set forth in chapter 52, title 67, Idaho Code, shall follow if the division affirms its initial decision.
[46-911, added 2025, ch. 94, sec. 2, p. 446.]
Emergency medical service rules that are in effect on July 1, 2025, shall remain in effect as if promulgated by the division and may be amended as necessary by the division consistent with chapter 52, title 67, Idaho Code, subject to legislative approval. Provided however, any authority to promulgate rules under this chapter shall be null, void, and of no effect on and after July 1, 2027.
[(46-912) (56-1023) (56-1017), 39-145, added 1976, ch. 187, sec. 6, p. 678; am. 1988, ch. 16, sec. 1, p. 19; am. 1996, ch. 26, sec. 8, p. 65; am. and redesig. 2001, ch. 110, sec. 10, p. 381; am. 2004, ch. 362, sec. 1, p. 1082; am. 2006, ch. 421, sec. 5, p. 1305; am. 2007, ch. 306, sec. 2, p. 858; am. and redesig. 2009, ch. 189, sec. 9, p. 618; am. and redesig. 2025, ch. 94, sec. 9, p. 456.]
(1) Any person who practices or attempts to practice EMS as a licensed provider of emergency care as provided for in this chapter, without having at the time of violation a valid, unexpired, unrestricted, unrevoked, and unsuspended license issued by the division under this chapter shall be guilty of a misdemeanor and shall be subject to a fine of not more than five hundred dollars ($500) or imprisonment for not more than six (6) months, or both, for each violation.
(2) Any person establishing, conducting, managing, or operating any agency as provided for in this chapter without a license issued by the division under this chapter shall be guilty of a misdemeanor and shall be subject to a fine of not more than one thousand dollars ($1,000) or imprisonment for not more than six (6) months, or both. Each day of continuing violation shall constitute a separate offense.
[46-913, added 2025, ch. 94, sec. 2, p. 447.]
Time sensitive emergencies, specifically blunt trauma injuries, strokes and heart attacks, were three (3) of the top five (5) causes of death in Idaho in 2011. Numerous studies throughout the United States have demonstrated that organized systems of care improve patient outcomes, thus reducing the frequency of preventable death and improving the functional status of the patient. The institute of medicine’s report "Hospital-Based Emergency Care: At the Breaking Point" recommended improving the care of critical illness through regionalization by transporting critically ill patients to designated specialized care centers when appropriate. Early treatment and transfer when necessary will save the lives of Idahoans stricken with these emergency conditions. Trauma systems of care are well understood as they have existed in many other states for decades. It is the intent of the legislature, in sections 46-914 through 46-922, Idaho Code, to create an integrated and responsive system of care for Idaho citizens. The trauma component will serve as the initial framework in a deliberate, incremental implementation approach for a comprehensive system of care for time sensitive emergencies in Idaho. The time sensitive emergency system in Idaho is intended to be voluntary and inclusive. The system will be designed such that all facilities, and in particular critical access hospitals, have the opportunity to participate. No facility shall be excluded from receiving medically appropriate patients based solely on the facility’s decision of not seeking designation.
[(46-914) 56-1024, added 2014, ch. 147, sec. 1, p. 403; am. and redesig. 2025, ch. 94, sec. 10, p. 456.]
(1) There is hereby created a voluntary time sensitive emergency system within the division.
(2) As used in sections 46-914 through 46-922, Idaho Code:
(a) "Confidential information" means information that may identify a patient, health care facility, or health care practitioner.
(b) "Contractor" means an individual, partnership, corporation, or other entity performing TSE registry services under a contractual agreement with the division.
(c) "Council" means the Idaho time sensitive emergency system council.
(d) "De-identified information" means records and information contained in the TSE registry, including compilations and analyses thereof, that do not contain information that might identify a patient, health care facility, or health care practitioner.
(e) "Heart attack" means a STEMI, which is a common name for an ST-elevation myocardial infarction, a more precise description of a type of heart attack that is caused by a prolonged period of blocked blood supply that affects a large area of the heart and has a substantial risk of death and disability calling for a quick response.
(f) "Hospital" has the same meaning as in 42 CFR.
(g) "Stroke" means an interruption of blood flow to the brain causing paralysis, slurred speech, or altered brain function usually caused by a blockage in a blood vessel that carries blood to the brain (ischemic stroke) or by a blood vessel bursting (hemorrhagic).
(h) "Trauma" means the result of an act or event that damages, harms, or hurts a human being resulting in intentional or unintentional damage to the body resulting from acute exposure to mechanical, thermal, electrical, or chemical energy or from the absence of such essentials as heat or oxygen.
(i) "TSE" means a time sensitive emergency, specifically trauma, stroke, or heart attack.
(j) "TSE registry" means the population-based data system that provides ongoing and systematic collection, analysis, interpretation, and dissemination of information related to trauma, stroke, and heart attack for system improvement, prevention, and research activities. Elements in the registry shall describe the nature and scope of the injury, illness, or health condition and identify the incidence and prevalence of traumatic injury, illness or health condition, severity of injury, performance of out-of-hospital and hospital emergency medical systems, patient outcomes, and the impact of trauma, stroke, and heart attack on the health care system.
(k) "TSE system" means the organized approach to treating injured patients that establishes and promotes standards for patient transportation, equipment, and information analysis for effective and coordinated TSE care. TSE systems represent a continuum of care that is fully integrated into the emergency medical services system and is a coordinated effort between out-of-hospital and hospital providers with the close cooperation of medical specialists in each phase of care. The focus is on prevention, coordination of acute care, and aggressive rehabilitation. Systems are designed to be inclusive of all patients with a TSE requiring acute care facilities, striving to meet the needs of the patient, regardless of the severity of injury, geographic location, or population density. A TSE system seeks to prevent injuries from happening and the reduction of death and disability when it does happen.
[(46-915) 56-1026, added 2014, ch. 147, sec. 3, p. 403; am. and redesig. 2025, ch. 94, sec. 11, p. 457.]
(1) There is hereby created within the division the Idaho time sensitive emergency system council. Council members shall be appointed by and serve at the pleasure of the governor. Terms on the council shall be for four (4) years, and vacancies on the council for unexpired terms shall be filled by appointment by the governor for the remainder of the term. Council members shall be selected to assure geographic, rural, and clinical specialty representation.
(2) The membership of the council shall include the following:
(a) One (1) representative from a facility that either holds or is seeking designation as an Idaho trauma center. The representative shall be the medical director, the coordinator, or the program manager responsible for the respective facility’s trauma program;
(b) One (1) representative from a facility that either holds or is seeking designation as an Idaho stroke facility. The representative shall be the medical director, the coordinator, or the program manager responsible for the respective facility’s stroke program;
(c) One (1) representative from a facility that either holds or is seeking designation as an Idaho heart attack center. The representative shall be the medical director, the coordinator, or the program manager responsible for the respective facility’s heart attack program;
(d) One (1) representative from an EMS agency licensed by the division that serves a primarily urban response area;
(e) One (1) representative from an EMS agency licensed by the division that serves a primarily rural response area;
(f) One (1) representative from an air medical EMS agency licensed by the division;
(g) One (1) administrator of an Idaho hospital that either holds or is seeking Idaho trauma, stroke, or heart attack designation;
(h) One (1) chief executive officer or administrator of an Idaho critical access hospital that either holds or is seeking Idaho trauma, stroke, or heart attack designation;
(i) One (1) licensed health care provider who routinely works in the emergency department of a hospital that serves a primarily urban area that either holds or is seeking Idaho trauma, stroke, or heart attack designation;
(j) One (1) licensed health care provider who routinely works in the emergency department of a hospital that serves a primarily rural area that either holds or is seeking Idaho trauma, stroke, or heart attack designation; and
(k) One (1) member of the public.
(3) The chair of each regional time sensitive committee established pursuant to section 46-918, Idaho Code, shall be added as a voting member of the council when the regional time sensitive emergency committee is implemented and the chair is selected.
(4) The governor shall appoint a chair who shall serve a term of two (2) years. The council may elect other officers as it may deem necessary and appropriate. The council shall meet at least semiannually and at the call of the chair.
(5) The duties of the council shall be as follows:
(a) Develop, implement, and monitor a voluntary statewide system that includes trauma, stroke, and heart attack facilities;
(b) Provide oversight of the system, assuring adherence to standards and regulations established by the council;
(c) Establish substate system regions that provide more effective access to the system. In the designation of these regions, specific consideration shall be given to geography and patient referral patterns for the facilities and agencies included therein;
(d) Establish a regional time sensitive emergency committee in each substate region;
(e) Develop the standards and criteria that each participating facility that voluntarily applies is required to meet concerning personnel, equipment, resources, data collection, and organizational capabilities to obtain or maintain designation;
(f) Develop procedures for and the duration of the designation of a trauma, stroke, or heart attack facility, including application procedures, verification procedures, investigation of complaints pertaining to designation, and emergency suspension or revocation of designation;
(g) Develop operational procedures for the regional time sensitive emergency committees;
(h) Facilitate the implementation of nationally accepted standards throughout the voluntary system;
(i) Set procedures for the acquisition of data needed to successfully manage the system; and
(j) Collaborate and cooperate with the division, the EMS medical director, local governments, and local EMS agencies and associations to address recruitment and retention concerns of local EMS providers.
[46-916, added 2025, ch. 94, sec. 2, p. 447.]
(1) The council shall designate a hospital as a trauma, stroke, or heart attack center when such hospital, upon proper application and verification, has been found by the council to meet the applicable level of trauma, stroke, or heart attack center criteria as established by the council.
(2) In developing trauma, stroke, and heart attack center designation criteria, the council shall use, as is practicable, appropriate peer-reviewed or evidence-based research, including but not limited to the most recent guidelines of the American college of surgeons committee on trauma, the American college of cardiology, and the American heart association for heart attack centers, the joint commission’s primary stroke center certification program criteria for stroke centers, or primary and comprehensive stroke center recommendations as published by the American stroke association or other nationally recognized authoritative standards.
(3) Designation criteria adopted by the council shall be publicly available.
(4) The council shall conduct a periodic verification review of every trauma, stroke, and heart attack facility. Verification reviews shall be coordinated for the different types of centers to the extent practicable with hospital resources. No person who has a substantial conflict of interest in the operation of any trauma, stroke, and heart attack center under review shall participate in the verification review of the facility.
(5) The council shall coordinate an on-site review as necessary to assure that a hospital meets the criteria for the desired designation. The council may waive an on-site review when a hospital has been verified by a nationally recognized accrediting body to meet or exceed standards established by the council.
(6) The council may deny, place on probation, suspend, or revoke any designation when it has reasonable cause to believe that there has been misrepresentation or falsification of information or a substantial failure to comply with the criteria for designation promulgated by the council. If the council has reasonable cause to believe that a hospital is not in compliance with such provisions, it may require the facility to submit additional documentation or undergo additional site reviews to verify compliance.
(7) No hospital may hold itself out to the public as an Idaho-designated trauma center, Idaho-designated stroke facility, or Idaho-designated heart attack facility unless it is designated as such by the council.
(8) A hospital aggrieved because of a council decision pursuant to this section shall be entitled to appeal as provided in section 46-910(4), Idaho Code. The opportunity for appeal as set forth in chapter 52, title 67, Idaho Code, shall follow if the council affirms its initial decision.
[46-917, added 2025, ch. 94, sec. 2, p. 448.]
(1) As required by this chapter, each substate region designated by the council shall have a time sensitive emergency committee.
(2) Membership of each regional TSE committee shall be based on the needs of the region and can be modified as the regional TSE committee determines, but each regional committee shall be initially comprised as follows:
(a) Each facility that is designated or is seeking designation by the council as a trauma center, stroke facility or heart attack facility may appoint one (1) representative for each of the designations that the facility holds or is seeking to hold to the regional committee for the region in which the facility is located;
(b) Each air medical EMS agency that provides patient transport within the region may appoint one (1) representative;
(c) Each hospital that either holds or is seeking Idaho trauma, stroke or heart attack designation may appoint the hospital administrator;
(d) Each EMS agency with a response area in the region may appoint one (1) representative; and
(e) The regional committee shall include a pediatrician or an expert in children’s trauma.
(3) Members of a regional committee shall elect a chair to serve a term of two (2) years.
(4) The duties of each regional committee shall be as follows:
(a) Implement care guidelines, policies, procedures and protocols for the regional TSE system;
(b) Conduct regional quality improvement, including receipt of reports prepared by the council containing trauma, stroke and heart attack data and making recommendations to facilities within the region based upon those reports;
(c) Advise the council concerning the statewide system;
(d) Establish trauma, stroke and heart attack education and prevention programs;
(e) Provide advice concerning trauma, stroke and heart attack care to health care facilities and other providers of health care;
(f) Perform other duties required in law and council regulations; and
(g) Conduct other activities needed to ensure optimal delivery of trauma, stroke and heart attack care services within the region.
[(46-918) 56-1030, added 2014, ch. 147, sec. 7, p. 406; am. and redesig. 2025, ch. 94, sec. 12, p. 458.]
(1) The division, or an authorized contractor of the division, shall:
(a) Establish a TSE registry to collect and analyze information on the incidence, severity, causes, and outcomes of TSEs, and other such data necessary to evaluate trauma, strokes, and heart attacks and the health system’s response;
(b) Establish the data elements and data dictionary, including child-specific data elements that hospitals must report, and the time frame and format for reporting; and
(c) Support, where necessary, data collection and abstraction by providing:
(i) A data collection system and technical assistance to each hospital; and
(ii) Funding or, at the discretion of the division, personnel for collection and abstraction for each hospital.
(2) The specific issues to be identified and evaluated through the TSE registry are:
(a) Trauma, stroke, and heart attack TSE surveillance;
(b) Geographic patterns of trauma incidence;
(c) Types of TSEs treated in hospitals in Idaho;
(d) Areas or regions of the state where improvements in the emergency medical system may be needed;
(e) Public education and prevention needs and efforts; and
(f) Other factors to consider in recommending, designing, or implementing a statewide TSE system.
(3) The data collected by the TSE registry shall be of such a nature as to allow the division to identify at least the following:
(a) Lack of access to care and improvement of the availability and delivery of prehospital, hospital, and post-acute TSE care;
(b) Performance of the out-of-hospital and hospital emergency medical systems;
(c) Costs of TSE care; and
(d) Outcomes of persons who are victims of TSEs.
(4) The division shall evaluate the data collected, as well as data collected from other relevant sources, and shall prepare an annual report. The data shall be used to regularly produce and disseminate aggregated and de-identified analytical reports and for recommending benchmark quality measures and outcomes and needed educational resources to the council.
[46-919, added 2025, ch. 94, sec. 2, p. 449.]
(1) Each licensed hospital in the state shall report each case of TSE that meets the inclusion criteria to the division or the authorized contractor of the division within one hundred eighty (180) days of treatment.
(2) Each report of TSE shall include information as defined by the division.
(3) The division or authorized contractor of the division shall have physical access to all records that would identify reportable cases or establish characteristics, treatment or medical status of reportable cases in the event that there has been a failure to report as delineated in subsections (1) and (2) of this section.
(4) Nothing in this chapter shall prevent the division or authorized contractor from identifying and reporting cases using data linkages with death records, other registries, and other potential sources.
[(46-920) 57-2004, added 2002, ch. 329, sec. 2, p. 930; am. 2014, ch. 147, sec. 12, p. 409; am. and redesig. 2025, ch. 94, sec. 13, p. 458.]
(1) Records and information contained in the TSE registry shall be kept confidential and may be released only as provided by this chapter and regulations adopted by the division.
(2) The division and an authorized contractor may enter into agreements to exchange confidential information with other TSE registries in order to obtain complete reports of Idaho residents treated in other states and to provide information to other states regarding such other state’s residents treated in Idaho. Agreements sharing information from the TSE registry shall include a provision requiring the receiving agency to keep such information confidential.
(3) The division and an authorized contractor may, in their discretion, publish or furnish to health researchers and the public de-identified information, including compilations and analyses thereof.
(4) The division and an authorized contractor may furnish confidential information to other TSE registries, federal TSE programs, or health researchers in order to perform and collaborate with research studies. Persons and entities receiving confidential information for research purposes must comply with regulations of the division relating to the confidentiality of TSE registry records and information.
(5) The division and an authorized contractor may furnish confidential information relating to a specific hospital, including compilations and analyses of such confidential information, to the specific hospital to which it relates.
(6) TSE registry records and information shall not be available for purposes of litigation except by order of the court. Any such order shall contain such protective provisions as are reasonable and necessary to prevent the public or further disclosure of the records and information and shall contain a provision requiring the destruction of the records and information when no longer needed for the litigation.
[46-921, added 2025, ch. 94, sec. 2, p. 450.]
(1) No action for damages arising from the disclosure of confidential information may be maintained against any reporting entities or employees of such entities that participate in good faith in the reporting of TSE registry data in accordance with this chapter.
(2) No license of a health care facility or health care practitioner may be denied, suspended or revoked for the good faith disclosure of confidential information in accordance with this chapter.
(3) The immunity granted in subsections (1) and (2) of this section shall not be construed to apply to the unauthorized disclosure of confidential information when such disclosure is due to gross negligence or willful misconduct of the reporting entities.
[(46-922) 57-2007, added 2002, ch. 329, sec. 2, p. 931; am. 2014, ch. 147, sec. 15, p. 410; am. and redesig. 2025, ch. 94, sec. 14, p. 459.]
This act shall be cited as the "Idaho Disaster Preparedness Act of 1975, amended by the Idaho Homeland Security Act of 2004."
[46-1001, added 1975, ch. 212, sec. 2, p. 584; am. 2004, ch. 58, sec. 3, p. 271.]
As used in this act:
(1) "Adjutant general" means the administrative head of the military division of the office of the governor.
(2) "Disaster" means occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural or man-made cause, including but not limited to fire, flood, earthquake, windstorm, wave action, volcanic activity, explosion, riot, or hostile military or paramilitary action and including acts of terrorism.
(3) "Emergency" means occurrence or imminent threat of a disaster or condition threatening life or property that requires state emergency assistance to supplement local efforts to save lives and protect property or to avert or lessen the threat of a disaster.
(4) "Political subdivision" means any county, city, district, or other unit of state or local government.
(5) "Militia" means all members of the Idaho army and air national guard in the service of the state.
(6) "Office" means the Idaho office of emergency management within the military division.
(7) "Search and rescue" means the employment, coordination, and utilization of available resources and personnel in locating, relieving distress and preserving life of, and removing survivors from the site of a disaster, emergency or hazard to a place of safety in case of lost, stranded, entrapped, or injured persons.
(8) "Disaster emergency account" means the account created under this act for the purpose of paying obligations and expenses incurred by the state of Idaho during a declared state of disaster emergency.
(9) "Bureau of hazardous materials" means the former bureau of hazardous materials, which is now a part of the Idaho office of emergency management in the military division of the office of the governor.
[46-1002, added 1975, ch. 212, sec. 2, p. 584; am. 1981, ch. 320, sec. 1, p. 667; am. 1997, ch. 121, sec. 10, p. 365; am. 2004, ch. 58, sec. 4, p. 271; am. 2016, ch. 118, sec. 6, p. 334.]
It is the policy of this state to plan and prepare for disasters and emergencies resulting from natural or man-made causes, enemy attack, terrorism, sabotage or other hostile action, and to implement this policy, it is found necessary:
(1) To create an Idaho office of emergency management, to authorize the creation of local organizations for disaster preparedness in the political subdivisions of the state, and to authorize the state and political subdivisions to execute agreements and to cooperate with the federal government and the governments of other states.
(2) To prevent and reduce damage, injury, and loss of life and property resulting from natural or man-made catastrophes, riots, or hostile military or paramilitary action.
(3) To prepare assistance for prompt and efficient search, rescue, care, and treatment of persons injured, victimized or threatened by disaster.
(4) To provide for rapid and orderly restoration and rehabilitation of persons and property affected by disasters.
(5) To prescribe the roles of the governor, state agencies, and local governments in prevention of, preparation for, response to and recovery from disasters.
(6) To authorize and encourage cooperation in disaster prevention, preparedness, response and recovery.
(7) To provide for coordination of activities relating to disaster prevention, preparedness, response, and recovery by all state agencies, political subdivisions, and interstate, federal-state and Canadian activities in which the state and its political subdivisions may participate.
(8) To provide a disaster management system embodying all aspects of predisaster preparedness and postdisaster response.
(9) To provide for the payment of obligations and expenses incurred by the state of Idaho through the Idaho office of emergency management during a declared state of disaster emergency.
[46-1003, added 1975, ch. 212, sec. 2, p. 584; am. 1981, ch. 320, sec. 2, p. 667; am. 2004, ch. 58, sec. 5, p. 271; am. 2016, ch. 118, sec. 7, p. 334.]
Within the military division of the office of governor, an Idaho office of emergency management is established.
[46-1004, added 1975, ch. 212, sec. 2, p. 584; am. 2004, ch. 58, sec. 6, p. 272; am. 2016, ch. 118, sec. 8, p. 335.]
The office may be headed by the adjutant general as chief of the military division, or by a coordinating officer selected by the adjutant general with the concurrence of the governor. If the adjutant general serves as chief of the office, he or she shall receive no additional compensation.
[46-1005, added 1975, ch. 212, sec. 2, p. 584; am. 2016, ch. 118, sec. 9, p. 335.]
(1) There is hereby created and established in the state treasury a separate account to be known as the disaster emergency account, which account shall be administered by the governor or his designee. The account shall only be used to pay obligations and expenses incurred by the state of Idaho arising out of a declared state of disaster emergency.
(2) In order to pay said obligations and expenses arising out of a declared state of disaster emergency the governor shall expend state money as follows:
(a) The governor shall use any moneys available in the disaster emergency account.
(b) In the event the disaster emergency account is inadequate to satisfy said obligations and expenses, the governor is empowered to direct, by executive order, the state controller to transfer moneys from the general fund, created pursuant to section 67-1205, Idaho Code, to the disaster emergency account, provided that in the governor’s judgment sufficient general fund moneys will be available to support the full general fund appropriations for the current fiscal year.
(c) In addition to any purpose for which they have previously been created, all funds, excluding constitutionally created funds or funds limited in their application by the constitution of the state of Idaho, are hereby expressly declared to be appropriated for the purpose of effectuating the purposes of this act. If the moneys made available in paragraphs (a) and (b) of this subsection are inadequate to meet such obligations and expenses, the governor is empowered to direct the state controller, by executive order, to transfer to the disaster emergency account moneys from any eligible account in order to pay said obligations and expenses; provided, that in the governor’s judgment, the moneys transferred are not required to support the current year’s appropriation of the affected accounts.
(d) In the event that restitution is made to the state from nonstate sources to reimburse the state for costs incurred in responding to a state of disaster emergency, the governor may use funds from the restitution to reimburse accounts from which funds were drawn to pay for the state’s response to the emergency.
(3) In addition to any other purpose for which they might have been appropriated, all moneys made available by this act to be used in the event of a disaster emergency are hereby perpetually appropriated for the purpose set forth in this section according to the limitations established by this section and the constitution of the state of Idaho. In no event may the revenues made available by subsection (2)(b) and (c) of this section for any and all emergency purposes exceed, during any fiscal year, one percent (1%) of the annual appropriation of general fund moneys for that fiscal year.
(4) The provisions of this section are hereby declared to be severable. If any provision of this section or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this section.
[46-1005A, added 1981, ch. 320, sec. 3, p. 668; am. 1988, ch. 279, sec. 1, p. 910; am. 1994, ch. 180, sec. 88, p. 486; am. 2021, ch. 225, sec. 1, p. 696.]
(1) In all matters of disaster services, the adjutant general shall represent the governor and shall, on behalf of the governor, coordinate the activities of all of the state agencies in disaster services. The office shall have a coordinating officer and other professional, technical, secretarial and clerical employees necessary for the performance of its functions.
(2) The office shall prepare, maintain and update a state disaster plan based on the principle of self-help at each level of government. The plan may provide for:
(a) Prevention and minimization of injury and damage caused by disaster;
(b) Prompt and effective response to disaster;
(c) Emergency relief;
(d) Identification of areas particularly vulnerable to disasters;
(e) Assistance to local officials in designing local emergency action plans;
(f) Authorization and procedures for the erection or other construction of temporary works designed to protect against or mitigate danger, damage, or loss from disaster;
(g) Preparation and distribution to the appropriate state and local officials of catalogs of federal, state and private assistance programs;
(h) Assistance to local officials in designing plans for search, rescue, and recovery of persons lost, entrapped, victimized, or threatened by disaster;
(i) Organization of manpower and chains of command;
(j) Coordination of federal, state, and local disaster activities;
(k) Coordination of the state disaster plan with the disaster plans of the federal government.
(3) The office shall participate in the development and revision of local and intergovernmental disaster plans. To this end, it may employ or otherwise secure the services of professional and technical personnel to provide expert assistance to political subdivisions, their disaster agencies, and intergovernmental planning and disaster agencies. This personnel shall consult with subdivisions and agencies and shall make field examinations of the areas, circumstances, and conditions to which particular local and intergovernmental disaster plans are intended to apply.
(4) In preparing and maintaining the state disaster plan, the office shall seek the advice and assistance of local government, business, labor, industry, agriculture, civic, and volunteer organizations and community leaders. In advising local and intergovernmental agencies, the office shall encourage them also to seek advice from these sources.
(5) The state disaster plan or any part thereof may be incorporated in rules of the office promulgated subject to chapter 52, title 67, Idaho Code.
(6) The office shall:
(a) Promulgate standards and criteria for local and intergovernmental disaster plans;
(b) Periodically review local and intergovernmental disaster plans;
(c) Assist political subdivisions, their disaster agencies, and intergovernmental disaster agencies to establish and operate training programs and programs of public information;
(d) Plan and make arrangements for the availability and use of any private facilities, services, and property and, if necessary and if in fact used, provide for payment for use under terms and conditions agreed upon;
(e) Prepare executive orders and proclamations for issuance by the governor, as necessary or appropriate in coping with disasters;
(f) Cooperate with the federal government and any public or private agency or entity in achieving any purpose of this act and in implementing programs for disaster prevention, preparation, response, and recovery;
(g) Maintain a register of search and rescue organizations, units, teams, or individuals operating within the state;
(h) Assist search and rescue units to accomplish standards for equipment, training and proficiency;
(i) Coordinate search and rescue of lost aircraft and airmen pursuant to section 21-114, Idaho Code, with aerial search operations coordinated by the Idaho transportation department, division of aeronautics;
(j) In addition to disaster prevention measures as included in the state, local, and intergovernmental disaster plans, the office shall consider on a continuing basis steps that could be taken to prevent or reduce the harmful consequences of disasters. The governor from time to time may make recommendations to the legislature, local governments and other appropriate public and private entities as may facilitate measures for prevention or reduction of the harmful consequences of disasters; and
(k) Not limit the powers and duties of the department of transportation, division of aeronautics, as provided by sections 21-114 and 21-118, Idaho Code.
[46-1006, added 1975, ch. 212, sec. 2, p. 584; am. 2004, ch. 58, sec. 7, p. 272; am. 2005, ch. 27, sec. 2, p. 136; am. 2016, ch. 118, sec. 10, p. 335.]
Nothing in this act shall be construed to:
(1) Interfere with the course or conduct of a labor dispute, except that actions otherwise authorized by this act or other laws may be taken when necessary to forestall or mitigate imminent or existing danger to public health or safety;
(2) Interfere with dissemination of news or comment on public affairs;
(3) Affect the jurisdiction or responsibilities of police forces, fire fighting forces, local emergency medical service (EMS) agencies licensed by the Idaho military division, units of the armed forces of the United States, or of any personnel thereof, when on active duty; but state, local, and intergovernmental disaster emergency plans shall place reliance upon the forces available for performance of functions related to disaster emergencies; or
(4) Limit, modify, or abridge the authority of the governor to proclaim martial law or exercise any other powers vested in him under the constitution or statutes of this state independent of or in conjunction with any provisions of this act.
[46-1007, added 1975, ch. 212, sec. 2, p. 584; am. 2004, ch. 373, sec. 1, p. 1114; am. 2025, ch. 94, sec. 27, p. 473.]
(1) Under this act, the governor may issue executive orders and proclamations and may amend or rescind them. Executive orders and proclamations have the force and effect of law; provided, however, that any such orders, proclamations, or rules must be essential to protect life or property from the occurrence or imminent threat of the state of disaster emergency threatening the safety of persons or property within the state and must be narrowly tailored to effectively protect life or property without placing unnecessary restrictions on the ability for a person or persons, regardless of job type or classification, to work, provide for their families, or otherwise contribute to the economy of the state of Idaho.
(2) A disaster emergency shall be declared by executive order or proclamation of the governor if he finds a disaster has occurred or that the occurrence or the threat thereof is imminent. The state of disaster emergency shall continue until the governor finds that the threat or danger has passed or the disaster has been dealt with to the extent that emergency conditions no longer exist, and when either or both of these events occur, the governor shall terminate the state of disaster emergency by executive order or proclamation; provided, however, that no state of disaster emergency may continue for longer than thirty (30) days unless the governor finds that it should be continued for another thirty (30) days or any part thereof. The legislature by concurrent resolution may terminate a state of disaster emergency at any time. Thereupon, the governor shall issue an executive order or proclamation ending the state of disaster emergency. All executive orders or proclamations issued under this subsection shall indicate the nature of the disaster, the area or areas threatened, the area subject to the proclamation, and the conditions causing the disaster. An executive order or proclamation shall be disseminated promptly by means calculated to bring its contents to the attention of the general public and, unless the circumstances attendant upon the disaster prevent or impede, be promptly filed with the Idaho office of emergency management, the office of the secretary of state, and the office of the recorder of each county where the state of disaster emergency applies.
(3) An executive order or proclamation of a state of disaster emergency shall activate the disaster response and recovery aspects of the state, local, and intergovernmental disaster emergency plans applicable to the political subdivision or area in question and be authority for the deployment and use of any forces to which the plan or plans apply and for use or distribution of any supplies, equipment, and materials and facilities assembled, stockpiled, or arranged to be made available pursuant to this act or any other provision of law relating to disaster emergencies.
(4) During the continuance of any state of disaster emergency, the governor is commander-in-chief of the militia and may assume command of all other forces available for emergency duty. To the greatest extent practicable, the governor shall delegate or assign command authority by prior arrangement embodied in appropriate executive orders or rules, but nothing herein restricts his authority to do so by orders issued at the time of the disaster emergency.
(5) In addition to any other powers conferred upon the governor by law, he may:
(a) Suspend the provisions of any rules prescribing the procedures for conduct of public business that would in any way prevent, hinder, or delay necessary action in coping with the emergency;
(b) Utilize all resources of the state, including, but not limited to, those sums in the disaster emergency account as he shall deem necessary to pay obligations and expenses incurred during a declared state of disaster emergency;
(c) Transfer the direction, personnel, or functions of state departments and agencies or units thereof for the purpose of performing or facilitating emergency services;
(d) Subject to any applicable requirements for compensation under section 46-1012, Idaho Code, and except as provided in subsection (7)(c) of this section, commandeer or utilize any private property, real or personal, if he finds this necessary to cope with the disaster emergency;
(e) Direct and compel the evacuation of all or part of the population from any stricken or threatened area within the state if he deems this action necessary for the preservation of life or other disaster mitigation, response, or recovery;
(f) Prescribe routes, modes of transportation, and destinations in connection with evacuation;
(g) Control ingress and egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises therein;
(h) Suspend or limit the sale, dispensing or transportation of alcoholic beverages, explosives, and combustibles; and
(i) Make provision for the availability and use of temporary emergency housing.
(6) Whenever an emergency or a disaster has been declared to exist in Idaho by the president under the provisions of the disaster relief act of 1974 (P.L. 93-288, 42 U.S.C. 5121), as amended, the governor may:
(a) Enter into agreements with the federal government for the sharing of disaster recovery expenses involving public facilities;
(b) Require as a condition of state assistance that a local taxing district be responsible for paying forty percent (40%) of the nonfederal share of costs incurred by the local taxing district that have been determined to be eligible for reimbursement by the federal government, provided that the total local share of eligible costs for a taxing district shall not exceed ten percent (10%) of the taxing district’s tax charges authorized by section 63-802, Idaho Code;
(c) Obligate the state to pay the balance of the nonfederal share of eligible costs within local taxing entities qualifying for federal assistance; and
(d) Enter into agreements with the federal government for the sharing of disaster assistance expenses to include individual and family grant programs.
(7) During the continuance of any state of disaster emergency, neither the governor nor any agency of any governmental entity or political subdivision of the state shall:
(a) Impose or enforce any additional restrictions on the lawful manufacturing, possession, transfer, sale, transport, storage, display or use of firearms or ammunition or their components or accessories, or otherwise limit or suspend any rights guaranteed by the United States constitution or the constitution of the state of Idaho, including but not limited to the right to peaceable assembly or free exercise of religion. The transport, storage, transfer, sale, commerce in, import and export of, distribution, repair, maintenance, and manufacture of firearms, ammunition, and related accessories and components, shooting ranges, and other goods and services directly related to lawful firearm possession, use, storage, repair, maintenance, sale or transfer, and training in the use of firearms are declared to be life-sustaining, essential businesses and services for the purposes of safety and security in times of declared emergency or any other statutorily authorized responses to disaster, war, acts of terrorism, riot or civil disorder, public health crises, or emergencies of whatever kind or nature;
(b) Suspend or revoke a license to carry concealed weapons or refuse to accept and process an application for a license to carry concealed weapons, except in accordance with the provisions of chapter 33, title 18, Idaho Code; or
(c) Notwithstanding the provisions of subsection (5) of this section, seize, commandeer, or confiscate in any manner any privately owned firearm, ammunition, or firearms or ammunition components that are possessed, carried, displayed, sold, transferred, transported, stored, or used in connection with otherwise lawful conduct.
(8) During any state of disaster emergency, the governor may not alter, adjust, or create any provision of the Idaho Code.
[46-1008, added 1975, ch. 212, sec. 2, p. 584; am. 1981, ch. 89, sec. 1, p. 123; am. 1981, ch. 320, sec. 4, p. 669; am. 1984, ch. 4, sec. 1, p. 7; am. 1996, ch. 208, sec. 11, p. 669; am. 1996, ch. 322, sec. 45, p. 1075; am. 1997, ch. 117, sec. 7, p. 305; am. 2004, ch. 58, sec. 8, p. 274; am. 2006, ch. 264, sec. 1, p. 818; am. 2016, ch. 118, sec. 11, p. 337; am. 2021, ch. 355, sec. 1, p. 1056; am. 2021, ch. 356, sec. 1, p. 1058; am. 2021, ch. 357, sec. 1, p. 1060; am. 2022, ch. 11, sec. 1, p. 25.]
(1) Notwithstanding any other provision of law to the contrary, a person may choose not to evacuate his home despite being ordered or compelled to do so pursuant to the provisions of this chapter.
(2) A person who chooses not to evacuate pursuant to subsection (1) of this section shall:
(a) Accept all of the risks and liabilities of his decision not to evacuate; and
(b) Reimburse a governmental entity, or a nonprofit agency cooperating with a governmental entity, if such entity conducts a rescue on behalf of a person who previously chose not to evacuate despite being ordered or compelled to do so pursuant to the provisions of this chapter.
[46-1008A, added 2025, ch. 26, sec. 1, p. 85.]
(1) Each county within this state shall be within the jurisdiction of and served by the office and by a county or intergovernmental agency responsible for disaster preparedness and coordination of response.
(2) Each county shall maintain a disaster agency or participate in an intergovernmental disaster agency which, except as otherwise provided under this act, has jurisdiction over and serves the entire county, or shall have a liaison officer appointed by the county commissioners designated to facilitate the cooperation and protection of that subdivision in the work of disaster prevention, preparedness, response and recovery.
(3) The chairman of the board of county commissioners of each county in the state shall notify the office of the manner in which the county is providing or securing disaster planning and emergency services. The chairman shall identify the person who heads the agency or acts in the capacity of liaison from which the service is obtained, and furnish additional information relating thereto as the office requires.
(4) Each county and/or intergovernmental agency shall prepare and keep current a local or intergovernmental disaster emergency plan for its area.
(5) The county or intergovernmental disaster agency, as the case may be, shall prepare and distribute to all appropriate officials in written form a clear and complete statement of the emergency responsibilities of all local agencies and officials and of the disaster chain of command.
[46-1009, added 1975, ch. 212, sec. 2, p. 584; am. 2003, ch. 132, sec. 1, p. 385; am. 2004, ch. 373, sec. 2, p. 1115; am. 2005, ch. 27, sec. 3, p. 138; am. 2008, ch. 39, sec. 1, p. 93; am. 2016, ch. 118, sec. 12, p. 338.]
(1) The governor may enter into interstate emergency or disaster service compacts with any state if he finds that joint action with the state is desirable in meeting common intergovernmental problems of emergency or disaster planning, prevention, response, and recovery.
(2) Nothing in subsection (1) hereof shall be construed to limit previous or future entry into the interstate civil defense and disaster compact of this state with other states.
(3) If any person holds a license, certificate, or other permit issued by any state or political subdivision thereof evidencing the meeting of qualifications for professional, mechanical, or other skills, the person may render aid involving that skill in this state to meet an emergency or disaster proclaimed by the governor, and this state shall give due recognition to the license, certificate, or other permit.
(4) All interstate mutual aid compacts and other interstate agreements dealing with disaster and emergency services shall be reviewed and updated at intervals not to exceed four (4) years.
(5) When considered of mutual benefit, the governor may, subject to limitations of law, enter into intergovernmental arrangements with neighboring provinces of Canada for the purpose of exchanging disaster and emergency services.
(6) Pursuant to an interstate agreement, personnel working for the state, its political subdivisions, municipal or public corporations, and other public agencies, may work outside the state to aid in disaster and emergency relief work; or equipment belonging to the state, its political subdivisions, municipal or public corporations, and other public agencies may be used outside the state to aid in disaster and emergency relief work. When state or local highway equipment or personnel are used in disaster relief work outside the state, arrangements shall be made, as necessary, to reimburse the state, its political subdivisions, municipal or public corporations, and other public agencies, for such work or equipment to comply with section 17, article 7 of the Idaho constitution, which provides that gasoline taxes and motor vehicle funds shall be used exclusively for the public highways of the state.
[46-1010, added 1975, ch. 212, sec. 2, p. 584; am. 1986, ch. 107, sec. 1, p. 294.]
(1) A local disaster emergency may be declared only by a mayor or chairman of the county commissioners within their respective political subdivisions. It shall not be continued or renewed for a period in excess of seven (7) days except by or with the consent of the governing board of the political subdivision. Any order or proclamation declaring, continuing, or terminating a local disaster emergency shall be given prompt and general publicity and shall be filed promptly with the local county recorder.
(2) The effect of a declaration of a local disaster emergency is to activate the response and recovery aspects of any and all applicable local or intergovernmental disaster emergency plans and to authorize the furnishing of aid and assistance thereunder.
(3) No intergovernmental agency or official thereof may declare a local disaster emergency, unless expressly authorized by the agreement pursuant to which the agency functions. However, an intergovernmental disaster agency shall provide aid and services in accordance with the agreement pursuant to which it functions.
[46-1011, added 1975, ch. 212, sec. 2, p. 584.]
(1) Each person within this state shall conduct himself and keep and manage his affairs and property in ways that will reasonably assist and will not unreasonably detract from the ability of the state, other political subdivisions, and the public to successfully meet disaster emergencies. This obligation includes appropriate personal service and use or restriction on the use of property in time of disaster emergency. This act neither increases nor decreases these obligations but recognizes their existence under the constitution and statutes of this state. Compensation for services or for the taking or use of property shall be only to the extent that obligations recognized herein are exceeded in a particular case and then only to the extent that the claimant may not be deemed to have volunteered his services or property without compensation.
(2) No personal services may be compensated by the state or any subdivision or agency thereof, except pursuant to statute or local law or ordinance.
(3) Compensation for property shall be only if the property was commandeered or otherwise used in coping with a disaster emergency and its use or destruction was ordered by the governor or his representative.
(4) Any person claiming compensation for the use, damage, loss, or destruction of property under this act shall file a claim therefor with the office in the form and manner the office provides.
(5) Unless the amount of compensation on account of property damaged, lost, or destroyed is agreed upon between the claimant and the office, the amount of compensation shall be calculated in the same manner as compensation due for taking of property pursuant to the condemnation laws of this state.
[46-1012, added 1975, ch. 212, sec. 2, p. 584; am. 2016, ch. 118, sec. 13, p. 339.]
The office shall ascertain what means exist for rapid and efficient communications in times of disaster emergencies. The office shall consider the desirability of supplementing these communication resources or of integrating them into a comprehensive state or state-federal telecommunications or other communication system or network. The office shall make recommendations to the governor as appropriate.
[46-1013, added 1975, ch. 212, sec. 2, p. 584; am. 2004, ch. 58, sec. 9, p. 276; am. 2016, ch. 118, sec. 14, p. 339.]
(1) Political subdivisions not participating in the intergovernmental arrangements pursuant to this act nevertheless shall be encouraged and assisted by the office to conclude suitable arrangement for furnishing mutual aid in coping with disasters. The arrangements shall include provisions of aid by persons and units in public employ.
(2) In passing upon local disaster plans, the office shall consider whether they contain adequate provisions for the rendering and receipt of mutual aid.
[46-1014, added 1975, ch. 212, sec. 2, p. 584; am. 2016, ch. 118, sec. 15, p. 340.]
The office shall keep continuously appraised of weather conditions which present danger of precipitation or other climatic activity severe enough to constitute a disaster. If the office determines that precipitation that may result from weather modification operations, either by itself or in conjunction with other precipitation or climatic conditions or activity, would create or contribute to the severity of a disaster, it shall direct the officer or agency empowered to issue permits for weather modification operations to suspend the issuance of the permits. Thereupon, no permits may be issued until the office informs the officer or agency that the danger has passed.
[46-1015, added 1975, ch. 212, sec. 2, p. 584; am. 2016, ch. 118, sec. 16, p. 340.]
No person, partnership, corporation, association, the state of Idaho or any political subdivision thereof or other entity who owns, leases, controls, occupies or maintains any building or premises which shall have been designated by proper authority for civil defense as a shelter from destructive operations or attacks by enemies of the United States shall be liable to any person for property damages, bodily injury or death resulting from or caused by the condition of said building or premises or as a result of any act or omission or in any way arising from the designation of such premises or buildings as a shelter when such person has entered or gone upon or into said building or premises for the purpose of seeking refuge therein during destructive operations or attacks by enemies of the United States or during tests ordered by lawful authority, except for acts of wilful negligence by the owner or occupant of such building or premises or other person responsible for the maintenance thereof, or by his servants, agents or employees.
[46-1016, added 1975, ch. 212, sec. 2, p. 584.]
Neither the state, nor the office, nor any political subdivision thereof nor other agencies, nor, except in cases of willful misconduct, the agents, employees or representatives of any of them engaged in any civil defense, disaster or emergency and the planning or preparation for the same, or disaster or emergency relief activities, acting under proper authority, nor, except in cases of willful misconduct or gross negligence, any person, firm, corporation or entity under contract with them to provide equipment or work to be used in civil defense, disaster or emergency planning, preparation or relief, while complying with or attempting to comply with this act or any rule or regulation promulgated pursuant to the provisions of the act, shall be liable for the death of or any injury to persons or damage to property as a result of such activity. The provisions of this section shall not affect the right of any person to receive benefits to which he would otherwise be entitled under this act or under the worker’s compensation law or under any pension law, nor the right of any such person to receive any benefits or compensation under any act of congress.
[46-1017, added 1975, ch. 212, sec. 2, p. 584; am. 2004, ch. 58, sec. 10, p. 276; am. 2016, ch. 118, sec. 17, p. 340.]
The state of Idaho hereby enacts into law and enters into the interstate mutual aid compact with those states who agree and enact the interstate mutual aid compact in accordance with the terms of the compact, which compact is substantially as follows:
INTERSTATE MUTUAL AID COMPACT
Article I
The purpose of this compact is to provide voluntary assistance among participating states in responding to any disaster or imminent disaster that overextends the ability of local and state governments to reduce, counteract, or remove the danger. Assistance may include but is not limited to rescue, fire, police, medical, communication, and transportation services and facilities to cope with problems which require use of special equipment, trained personnel, or personnel in large numbers not locally available.
Article II
Article I, Section 10, of the Constitution of the United States permits a state to enter into an agreement or compact with another state, subject to the consent of Congress. Congress, through enactment of 50 U.S.C. 2281(g) and 2283 and the executive branch, by issuance of Executive Order No. 10186 of December 1, 1950, encourages the states to enter into emergency, disaster, and civil defense mutual aid agreements or pacts.
Article III
It is agreed by participating states that the following conditions will guide implementation of the compact:
(1) Participating states through their designated officials are authorized to request and receive assistance from a participating state. Requests will be granted only if the requesting state is committed to the mitigation of the emergency and other resources are not immediately available.
(2) Requests for assistance may be verbal or in writing. If the request is made by other than written communication, it must be confirmed in writing as soon as practical after the request. A written request shall provide an itemization of equipment and operators, types of expertise, and personnel or other resources needed. Each request must be signed by an authorized official.
(3) Personnel and equipment of the aiding state made available to the requesting state shall, whenever possible, remain under the control and direction of the aiding state. The activities of personnel and equipment of the aiding state must be coordinated by the requesting state.
(4) An aiding state has the right to withdraw some or all of its personnel and equipment whenever the personnel and equipment are needed by that state. Notice of intention to withdraw should be communicated to the requesting state as soon as possible.
Article IV
(1) The requesting state shall reimburse the aiding state as soon as possible after the receipt by the requesting state of an itemized voucher requesting reimbursement of costs.
(2) Any state rendering aid pursuant to this compact must be reimbursed by the state receiving such aid for any damage to, loss of, or expense incurred in the operation of any equipment used in responding to a request for aid, and for the cost incurred in connection with such requests.
(3) Any state rendering aid pursuant to this compact must be reimbursed by the state receiving such aid for the cost of compensation and death benefits to injured officers, agents, or employees and their dependents or representatives if such officers, agents, or employees sustain injuries or are killed while rendering aid pursuant to this arrangement and such payments are made in the same manner and on the same terms as if the injury or death were sustained within the aiding state.
Article V
(1) All privileges and immunities from liability, exemptions from law, ordinances, and rules and all pension, disability relief, workers’ compensation, and other benefits that apply to the activity of officers, agents, or employees when performing their respective functions within the territorial limits of their respective political subdivisions apply to them to the same extent while engaged in the performance of any of their functions and duties extraterritorially under the provisions of this compact.
(2) All privileges and immunities from liability, exemptions from law, ordinances, and rules and workers’ compensation and other benefits that apply to duly enrolled or registered volunteers when performing their respective functions at the request of their state and within its territorial limits apply to the same extent while performing their functions extraterritorially under the provisions of this compact. Volunteers may include but are not limited to physicians, surgeons, nurses, dentists, structural engineers, and trained search and rescue volunteers.
(3) The signatory states, their political subdivisions, municipal or public corporations, and other public agencies shall hold harmless the corresponding entities and personnel thereof from the other states with respect to the acts and omissions of its own agents and employees that occur while providing assistance pursuant to the common plan.
(4) Nothing of this arrangement may be construed as repealing or impairing any existing interstate mutual aid agreements.
(5) Upon enactment of this compact by two (2) or more states, and annually by each January 1 thereafter, the participating states will exchange with each other the names of officials designated to request and provide services under this arrangement. In accordance with the cooperative nature of this arrangement, it is permissible and desirable for the states to exchange operational procedures to be followed in requesting assistance and reimbursing expenses.
(6) This compact becomes effective and is binding upon the states so acting when it has been enacted into law by any two (2) states. Thereafter, this compact becomes effective and binding as to any other state upon similar action by such state.
(7) This compact remains binding upon a party state until it enacts a law repealing the compact and providing for the sending of formal written notice of withdrawal from the compact to the appropriate officials of all other party states. An actual withdrawal may not take effect until the 30th consecutive day after the notice has been sent. Such withdrawal does not relieve the withdrawing state from its obligations assumed under this compact prior to the effective date of withdrawal.
[46-1018, added 1986, ch. 107, sec. 2, p. 295.]
The legislature of the state of Idaho hereby authorizes the governor of the state of Idaho to enter into a compact on behalf of the state of Idaho with any other state legally joining therein, in the form substantially as follows:
EMERGENCY MANAGEMENT ASSISTANCE COMPACT
ARTICLE I
PURPOSES AND AUTHORITIES
(1) This compact is made and entered into by and between the participating member states which enact this compact, hereinafter called party states. For the purposes of this agreement, the term "states" is taken to mean the several states, the Commonwealth of Puerto Rico, the District of Columbia, and all United States territorial possessions.
(2) The purpose of this compact is to provide for mutual assistance between the states entering into this compact in managing any emergency or disaster that is duly declared by the governor of the affected state(s), whether arising from natural disaster, technological hazard, man-made disaster, civil emergency aspects of resources shortages, community disorders, insurgency, or enemy attack.
(3) This compact shall also provide for mutual cooperation in emergency-related exercises, testing, or other training activities using equipment and personnel simulating performance of any aspect of the giving and receiving of aid by party states or subdivisions of party states during emergencies, such actions occurring outside actual declared emergency periods. Mutual assistance in this compact may include the use of the states’ national guard forces, either in accordance with the national guard mutual assistance compact or by mutual agreement between states.
ARTICLE II
GENERAL IMPLEMENTATION
(1) Each party state entering into this compact recognizes many emergencies transcend political jurisdictional boundaries and that intergovernmental coordination is essential in managing these and other emergencies under this compact. Each state further recognizes that there will be emergencies which require immediate access and present procedures to apply outside resources to make a prompt and effective response to such an emergency. This is because few, if any, individual states have all the resources they may need in all types of emergencies or the capability of delivering resources to areas where emergencies exist.
(2) The prompt, full, and effective utilization of resources of the participating states, including any resources on hand or available from the federal government or any other source, that are essential to the safety, care, and welfare of the people in the event of any emergency or disaster declared by a party state, shall be the underlying principle on which all articles of this compact shall be understood.
(3) On behalf of the governor of each state participating in the compact, the legally designated state official who is assigned responsibility for emergency management will be responsible for formulation of the appropriate interstate mutual aid plans and procedures necessary to implement this compact.
ARTICLE III
PARTY STATE RESPONSIBILITIES
(1) It shall be the responsibility of each party state to formulate procedural plans and programs for interstate cooperation in the performance of the responsibilities listed in this article. In formulating such plans, and in carrying them out, the party states, insofar as practical, shall:
(a) Review individual state hazards analysis and, to the extent reasonably possible, determine all those potential emergencies the party states might jointly suffer, whether due to natural disaster, technological hazard, man-made disaster, emergency aspects of resource shortages, civil disorders, insurgency or enemy attack.
(b) Review party states’ individual emergency plans and develop a plan which will determine the mechanism for the interstate management and provision of assistance concerning any potential emergency.
(c) Develop interstate procedures to fill any identified gaps and to resolve any identified inconsistencies or overlaps in existing or developed plans.
(d) Assist in warning communities adjacent to or crossing the state boundaries.
(e) Protect and assure uninterrupted delivery of services, medicines, water, food, energy and fuel, search and rescue, and critical lifeline equipment, services, and resources, both human and material.
(f) Inventory and set procedures for the interstate loan and delivery of human and material resources, together with procedures for reimbursement or forgiveness.
(g) Provide, to the extent authorized by law, for temporary suspension of any statutes or ordinances that restrict the implementation of the above responsibilities.
(2) The authorized representative of a party state may request assistance of another party state by contacting the authorized representative of that state. The provisions of this compact shall only apply to requests for assistance made by and to authorized representatives. Requests may be verbal or in writing. If verbal, the request shall be confirmed in writing within thirty (30) days of the verbal request. Requests shall provide the following information:
(a) A description of the emergency service function for which assistance is needed, including, but not limited to, fire services, law enforcement, emergency medical, transportation, communications, public works and engineering, building inspection, planning and information assistance, mass care, resource support, health and medical services, and search and rescue.
(b) The amount and type of personnel, equipment, materials and supplies needed, and a reasonable estimate of the length of time they will be needed.
(c) The specific place and time for staging of the assisting party’s response and a point of contact at that location.
(3) There shall be frequent consultation between state officials who have assigned emergency management responsibilities and other appropriate representatives of the party states with affected jurisdictions and the United States government, with free exchange of information, plans, and resource records relating to emergency capabilities.
ARTICLE IV
LIMITATIONS
Any party state requested to render mutual aid or conduct exercises and training for mutual aid shall take such action as is necessary to provide and make available the resources covered by this compact in accordance with the terms hereof; provided that it is understood that the state rendering aid may withhold resources to the extent necessary to provide reasonable protection for such state. Each party state shall afford to the emergency forces of any party state, while operating within its state limits under the terms and conditions of this compact, the same powers (except that of arrest unless specifically authorized by the receiving state), duties, rights, and privileges as are afforded forces of the states in which they are performing emergency services. Emergency forces will continue under the command and control of their regular leaders, but the organizational units will come under the operational control of the emergency service authorities of the state receiving assistance. These conditions may be activated, as needed, only subsequent to a declaration of a state of emergency or disaster by the governor of the party state that is to receive assistance or upon commencement of exercises or training of mutual aid and shall continue so long as the exercises or training for mutual aid are in progress, the state of emergency or disaster remains in effect, or loaned resources remain in the receiving state, whichever is longer.
ARTICLE V
LICENSES AND PERMITS
Whenever any person holds a license, certificate, or other permit issued by any state party to the compact evidencing the meeting of qualifications for professional, mechanical, or other skills, and when such assistance is requested by the receiving party state, such person shall be deemed licensed, certified, or permitted by the state requesting assistance to render aid involving such skill to meet a declared emergency or disaster, subject to such limitations and conditions as the governor of the requesting state may prescribe by executive order or otherwise.
ARTICLE VI
LIABILITY
Officers or employees of a party state rendering aid in another state pursuant to this compact shall be considered agents of the requesting state for tort liability and immunity purposes. No party state or its officers or employees rendering aid in another state pursuant to this compact shall be liable on account of any act or omission in good faith on the part of such forces while so engaged or on account of the maintenance or use of any equipment or supplies in connection therewith. Good faith in this article shall not include willful misconduct, gross negligence or recklessness.
ARTICLE VII
SUPPLEMENTARY AGREEMENTS
Inasmuch as it is probable that the pattern and detail of the machinery for mutual aid among two (2) or more states may differ from that among the states that are party hereto, this compact contains elements of a broad base common to all states, and nothing herein contained shall preclude any state from entering into supplementary agreements with another state or affect any other agreements already in force between states. Supplementary agreements may comprehend, but shall not be limited to, provisions for evacuation and reception of injured and other persons and the exchange of medical, fire, police, public utility, reconnaissance, welfare, transportation and communications personnel, and equipment and supplies.
ARTICLE VIII
COMPENSATION
Each party state shall provide for the payment of compensation and death benefits to injured members of the emergency forces of that state and representatives of deceased members of such forces in case such members sustain injuries or are killed while rendering aid pursuant to this compact, in the same manner and on the same terms as if the injury or death were sustained within their own state.
ARTICLE IX
REIMBURSEMENT
Any party state rendering aid in another state pursuant to this compact shall be reimbursed by the party state receiving such aid for any loss or damage to or expense incurred in the operation of any equipment and the provisions of any service in answering a request for aid and for the costs incurred in connection with such requests; provided, that any aiding party state may assume in whole or in part such loss, damage, expense, or other cost, or may loan such equipment or donate such services to the receiving party state without charge or cost; and provided further, that any two (2) or more party states may enter into supplementary agreements establishing a different allocation of costs among those states. Article VIII expenses shall not be reimbursable under this provision.
ARTICLE X
EVACUATION
Plans for the orderly evacuation and interstate reception of portions of the civilian population as the result of any emergency or disaster of sufficient proportions to so warrant, shall be worked out and maintained between the party states and the emergency management/services directors of the various jurisdictions where any type of incident requiring evacuations might occur. Such plans shall be put into effect by request of the state from which evacuees come and shall include the manner of transporting such evacuees, the number of evacuees to be received in different areas, the manner in which food, clothing, housing, and medical care will be provided, the registration of the evacuees, the providing of facilities for the notification of relatives or friends, and the forwarding of such evacuees to other areas or the bringing in of additional materials, supplies, and all other relevant factors. Such plans shall provide that the party state receiving evacuees and the party state from which the evacuees come shall mutually agree as to reimbursement of out-of-pocket expenses incurred in receiving and caring for such evacuees, for expenditures for transportation, food, clothing, medicines and medical care, and like items. Such expenditures shall be reimbursed as agreed by the party state from which the evacuees come. After the termination of the emergency or disaster, the party state from which the evacuees come shall assume the responsibility for the ultimate support of repatriation of such evacuees.
ARTICLE XI
IMPLEMENTATION
(1) This compact shall become operative immediately upon its enactment into law by any two (2) states; thereafter this compact shall become effective as to any other state upon its enactment by such state.
(2) Any party state may withdraw from this compact by enacting a statute repealing the same, but no such withdrawal shall take effect until thirty (30) days after the governor of the withdrawing state has given notice in writing of such withdrawal to the governors of all other party states. Such action shall not relieve the withdrawing state from obligations assumed hereunder prior to the effective date of withdrawal.
(3) Duly authenticated copies of this compact and of such supplementary agreements as may be entered into shall, at the time of their approval, be deposited with each of the party states and with the federal emergency management agency and other appropriate agencies of the United States government.
ARTICLE XII
VALIDITY
This compact shall be construed to effectuate the purposes stated in Article I hereof. If any provision of this compact is declared unconstitutional, or the applicability thereof to any person or circumstances is held invalid, the constitutionality of the remainder of the compact and the applicability thereof to other persons and circumstances shall not be affected thereby.
ARTICLE XIII
ADDITIONAL PROVISIONS
Nothing in this compact shall authorize or permit the use of military force by the national guard of a state at any place outside that state in any emergency for which the President is authorized by law to call into federal service the militia, or for any purpose for which the use of the army or the air force would in the absence of express statutory authorization be prohibited under section 1385 of title 18, United States Code.
[46-1018A, added 2001, ch. 140, sec. 1, p. 502.]
(1) The legislature of the state of Idaho finds:
(a) That recurring floods in Idaho threaten human life, health and property and that the public interest requires that the floodplains of Idaho be managed and regulated in order to minimize flood hazards to life, health and property.
(b) That it is the policy of this state to reduce flood damage and the number of people and structures at risk in flood hazard areas through proper floodplain management, including such measures as floodplain zoning ordinances which require structures to be built at a flood protection elevation and/or with floodproofing.
(c) That local units of government have the primary responsibility for planning, adoption and enforcement of land use regulations to accomplish this proper floodplain management. Furthermore, they are best able to adopt and implement comprehensive floodplain management programs that include nonregulatory techniques to accomplish the purposes of this act in cooperation with federal, state and local agencies.
(2) The purpose of this act is:
(a) To protect human life, health and property;
(b) To preserve floodplains for the purpose of carrying and storing flood waters;
(c) To reduce the public cost of providing emergency services, flood control structures and rebuilding public works damaged by floods;
(d) To protect the tax base and jobs in Idaho;
(e) To reduce the threat of increased damage to existing development;
(f) To encourage the orderly development and wise use of floodplains;
(g) To minimize interruptions to business;
(h) To prevent increased flooding and erosion caused by improper development.
[46-1020, added 1998, ch. 301, sec. 1, p. 992.]
As used in this act:
(1) "Development" means any man-made change to improved or unimproved real estate, including but not limited to the construction of buildings, structures, or accessory structures or the construction of additions or substantial improvements to buildings, structures, or accessory structures; the placement of mobile homes; mining, dredging, filling, grading, paving, excavation or drilling operations; and the deposition or extraction of materials; specifically including the construction of dikes, berms and levees.
(2) "Flood" means a general or temporary condition of partial or complete inundation of normally dry land areas caused by the overflow or rise of rivers, streams or lakes or the unusual and rapid accumulation or runoff of surface waters from any source.
(3) "Flood fringe" is that portion of the floodplain outside of the floodway covered by floodwaters during the regulatory flood.
(4) "Floodplain" is the land that has been or may be covered by floodwaters or is surrounded by floodwater and inaccessible during the occurrence of the regulatory flood. The riverine floodplain includes the floodway and the flood fringe.
(5) "Floodplain management" is the analysis and integration of the entire range of measures that can be used to prevent, reduce or mitigate flood damage in a given location and that can protect and preserve the natural, environmental, historical, and cultural values of the floodplain.
(6) "Floodproofing" means the modifications of structures and their sites, building contents, and water and sanitary facilities to keep water out or reduce the effects of water entry.
(7) "Flood protection elevation" means an elevation that shall correspond to the elevation of the one percent (1%) chance flood (one hundred (100) year flood), plus any increased flood elevation due to floodway encroachment, plus any required freeboard.
(8) "Floodway" is the channel of the river or stream and those portions of the floodplain adjoining the channel required to discharge and store the floodwater or flood flows associated with the regulatory flood.
(9) "Freeboard" represents a factor of safety usually expressed in terms of a certain amount of feet above a calculated flood level. Freeboard shall compensate for the many unknown factors that contribute to flood heights greater than the height calculated. These unknown factors include but are not limited to ice jams, debris accumulation, wave action, obstruction of bridge openings and floodways, the effects of urbanization on the hydrology of the watershed, loss of flood storage areas due to development and the sedimentation of a river or streambed.
(10) "Local government," in the context of this chapter, means any county or city having planning and zoning authority to regulate land use within its jurisdiction.
(11) "Mitigation" means any action taken that will reduce the impact, damage or cost of the next flood that occurs.
(12) "Person" means any individual, group of individuals, corporation, partnership, association, political subdivision, public or private agency or entity.
(13) "Regulatory flood" is a flood determined to be representative of large floods known to have occurred in Idaho and that may be expected to occur on a particular stream because of like physical characteristics. The regulatory flood is based on a statistical analysis of stream flow records available for the watershed or an analysis of rainfall and runoff characteristics in the watershed. In inland areas, the flood frequency of the regulatory flood is once in every one hundred (100) years; this means that in any given year there is a one percent (1%) chance that a regulatory flood may occur or be exceeded.
[46-1021, added 1998, ch. 301, sec. 1, p. 993; am. 2010, ch. 141, sec. 1, p. 298; am. 2014, ch. 72, sec. 5, p. 187; am. 2024, ch. 179, sec. 1, p. 665.]
Subject to the availability of adequate mapping and data to properly identify the floodplains, if any, within its jurisdiction, each local government is encouraged to adopt a floodplain map and floodplain management ordinance which identifies these floodplains and which requires, at a minimum, that any development in a floodplain must be constructed at a flood protection elevation and/or have adequate floodproofing. The local government may regulate all mapped and unmapped floodplains within its jurisdiction. Nothing in this act shall prohibit a local government from adopting more restrictive standards than those contained in this chapter. If not otherwise exempt from approval, a flood control district’s conduct of a "flood fight," as defined in section 42-3103, Idaho Code, shall not require prior local government approval provided all such approvals are obtained within a reasonable time after the imminent flooding event has ended.
[46-1022, added 1998, ch. 301, sec. 1, p. 994; am. 2010, ch. 141, sec. 2, p. 299; am. 2014, ch. 72, sec. 6, p. 188; am. 2024, ch. 179, sec. 2, p. 666.]
(1) Development constructed or maintained in violation of any local floodplain management ordinance that conforms to the provisions of this chapter is hereby declared to be a public nuisance and the creation thereof may be enjoined and the maintenance thereof may be abated by action of the state, any local unit of government of the state or any citizen thereof.
(2) If, after the effective date of this chapter, a local government allows any development in a floodplain below the flood protection elevation without adequate floodproofing, that development shall not, in the event of a disaster emergency involving flooding in that floodplain, be eligible to receive any matching funds from the state for any federal disaster assistance program which may be available as a result of said flooding in that floodplain. The owner of the development will be required to rely on flood insurance to insure their property against the risk of loss incurred by their development in the floodplain in contravention of the intent of this chapter.
[46-1023, added 1998, ch. 301, sec. 1, p. 994.]
If any provision of this chapter or its application to any person or circumstance is held invalid by a court of competent jurisdiction, the invalidity does not affect other provisions or applications of the chapter that can be given effect without the invalid provision or application, and to this end the provisions of the chapter are severable.
[46-1024, added 1998, ch. 301, sec. 1, p. 995.]
(1) Annually, the chief of the Idaho office of emergency management shall prepare a written summary of all grants received from the federal emergency management agency to be distributed to the forty-four (44) county commission chairmen. The summary shall list those federal funds that are eligible for direct assistance to local disaster agencies in accordance with section 46-1009(2), Idaho Code, and those funds that are limited to use by the state and not eligible for direct assistance to local disaster agencies.
(2) Not less than thirty-four percent (34%) of the eligible direct assistance funds shall be subgranted by the Idaho office of emergency management to the local disaster agencies. Funds shall be distributed to the local disaster agencies subject to the provisions and rules of the Idaho office of emergency management, the federal emergency management agency through the Robert T. Stafford Act, title 44 of the code of federal regulations, and pertinent circulars published by the United States office of management and budget.
(3) Direct financial assistance to the local disaster agencies is not an entitlement. Subgrants are awarded through the Idaho office of emergency management for the purpose of assisting counties to achieve goals and objectives outlined in an approved county grant proposal.
[46-1025, added 2000, ch. 442, sec. 2, p. 1403; am. 2004, ch. 58, sec. 12, p. 276; am. 2016, ch. 118, sec. 18, p. 340.]
As used in this section and section 46-1027, Idaho Code, the following terms shall have the following meanings:
(1) "Idaho technical rescue (ITR) teams" means a specialized team or group of teams formed pursuant to this section and section 46-1027, Idaho Code, organized with capabilities established under the federal emergency management agency national resource typing system in order to assist in the removal of trapped victims in emergency situations including, but not limited to, collapsed structures, confined spaces, trench excavations, elevated locations and other technical rescue situations.
(2) "Specialty rescue team (SRT)" means a specialized team, formed pursuant to this section and section 46-1027, Idaho Code, organized to provide technical rescue assistance to supplement and work under first responders and local incident commanders including, but not limited to, cave rescue, mine and tunnel rescue and vehicle/machinery extrication and swift water/flood teams. Such teams shall be aligned with one (1) or more of the categories within the federal emergency management agency’s national resource typing system.
(3) "Idaho incident management and support teams (IIMAST)" means a type 3 incident management team, which is a multiagency/multijurisdiction team for extended incidents, formed and managed at the state, regional or metropolitan level deployed as a team of trained personnel to manage major and/or complex incidents requiring a significant number of local, regional and state resources and incidents that extend into multiple operational periods and require a written incident action plan (IAP) that may be utilized at all hazard type incidents. These teams may initially manage larger, more complex incidents prior to arrival of and transition to a type 2 or type 1 incident management team (IMT) under the direction of the agency having the jurisdiction.
(4) "Person" shall have the definition ascribed to it in section 46-1021, Idaho Code.
[46-1026, added 2010, ch. 179, sec. 2, p. 367.]
(1) The military division through the Idaho office of emergency management shall implement the provisions of this section and section 46-1026, Idaho Code, and in so doing, the military division may:
(a) Through the Idaho office of emergency management, in accordance with the laws of the state, hire, fix the compensation and prescribe the powers and duties of such other individuals including consultants, emergency teams and committees as may be necessary to carry out the provisions of this section and section 46-1026, Idaho Code.
(b) Identify and implement ITR and specialty rescue teams that have appropriately trained personnel and necessary equipment to respond to technical rescue incidents and emergency disaster events. The military division shall enter into a written joint exercise of powers agreement with each entity or person providing equipment or services to a designated ITR or specialty rescue team. The teams shall be available and may respond to technical rescue incidents at the direction of the military division or its designee. When responding solely at the direction of the local incident commander, no cost recovery from the state of Idaho shall be available to ITR teams.
(c) Identify and implement an Idaho incident management and support team (IIMAST) that has appropriately trained personnel to the type 3 level and necessary equipment to respond to all hazard incidents. The military division shall enter into a joint exercise of powers agreement with each entity or person providing equipment or services to a designated IIMAST member. The teams shall be available and may respond to all hazard incidents at the direction of the military division or its designee. When responding solely at the direction of the local incident commander, no cost recovery from the state of Idaho shall be available to IIMAST teams.
(d) Contract with persons to meet state emergency response needs for the teams and response authorities.
(e) Advise, consult and cooperate with agencies of the state and federal government, other states and their state agencies, cities, counties, tribal governments and other persons concerned with technical, rescue and all hazard incident disasters.
(f) Encourage, participate in or conduct studies, investigations, training, research and demonstrations for and with Idaho technical rescue (ITR) teams, specialty rescue teams (SRT), Idaho incident management and support teams (IIMAST), local emergency response authorities and other interested persons.
(g) Collect and disseminate information relating to emergency response to technical rescue related events and all hazards incident disasters.
(h) Accept and administer loans, grants or other funds or gifts, conditional or otherwise, made to the state for emergency response activities provided for in this section and section 46-1026, Idaho Code.
(i) Submit an annual report prior to February 1 to the governor and to the legislature concerning emergency response to technical rescue related events and disasters.
(2) The military division through the Idaho office of emergency management shall have authority to promulgate rules and provide procedures to:
(a) Govern reimbursement of claims pursuant to this section when a disaster has been declared pursuant to chapter 10, title 46, Idaho Code.
(b) Provide for credentialing of Idaho technical rescue (ITR) teams, specialty rescue teams (SRT), and Idaho incident management and support teams (IIMAST) and for the identification and operation of all teams established pursuant to this section and section 46-1026, Idaho Code, and in accordance with the national incident management system, the national response framework and nationally recognized standards.
(c) Establish a credentialing program to review and evaluate new and existing local and regional technical rescue capabilities and provide recommendations for capability enhancement in accordance with the national incident management system, the national response framework and nationally recognized standards.
(3) Consistent with the provisions of subsections (4) and (5) of this section, the state of Idaho shall be liable for the acts or omissions of the Idaho technical rescue (ITR), specialty rescue teams (SRT) and Idaho incident management and support (IIMAST) teams responding to a technical rescue or all hazard incidents as a management team and the designating or requesting city or county shall be liable for the acts or omissions of a local emergency response authority responding to a technical rescue incident within its jurisdiction.
(4) Notwithstanding any other provision of law to the contrary, any Idaho technical rescue (ITR) team, speciality rescue team (SRT), Idaho incident management and support team (IIMAST), local emergency response authority or other person or group of persons who respond to a technical rescue incident or all hazard incidents as a management team at the request of an incident commander shall not be subject to civil liability for assistance or advice, except as provided in subsection (5) of this section.
(5) The exemption from civil liability provided in this section shall not apply to an act or omission that caused, in whole or in part, such technical rescue or all hazard incident management response to a person who may otherwise be liable therefor or any person who has acted in a grossly negligent, reckless or intentional manner.
(6) Nothing in this section shall be construed to abrogate the immunity granted to governmental entities pursuant to chapter 9, title 6, Idaho Code.
[46-1027, added 2010, ch. 179, sec. 3, p. 368; am. 2016, ch. 118, sec. 19, p. 341.]
This act may be cited and referred to as the "Idaho Code of Military Justice."
[46-1101, added 2015, ch. 268, sec. 2, p. 1078.]
The "Model State Code of Military Justice" is hereby enacted into law and entered into by this state with any other states legally joining therein in the form substantially as follows:
MODEL STATE CODE OF MILITARY JUSTICE
PART I. GENERAL PROVISIONS
ARTICLE 1. DEFINITIONS — GENDER NEUTRALITY
(a) In this act, unless the context otherwise requires:
(1) The term "cadet" or "candidate" means a person who is enrolled in or attending officer candidate school, a state military academy, a regional training institute, or any other formal education program for the purpose of becoming a commissioned officer in the state military forces;
(2) The term "duty status other than state active duty" means any other type of duty not in federal service and not full-time duty in the active service of the state, under an order issued by authority of law and includes travel to and from such duty;
(3)(A) The term "judge advocate" means a commissioned officer of the organized military forces who is a member in good standing of the bar of the highest court of a state, territory, commonwealth, or the District of Columbia and is:
(i) Certified or designated as a judge advocate in the judge advocate general’s corps of the army, air force, navy, marine corps, space force, or designated as a law specialist as an officer of the coast guard, or a reserve component of one of these; or
(ii) Certified as a nonfederally recognized judge advocate, under regulations promulgated pursuant to this provision, by the senior judge advocate of the commander of the force in the state military forces of which the accused is a member, as competent to perform such military justice duties required by this code. If there is no such judge advocate available, then such certification may be made by such senior judge advocate of the commander of another force in the state military forces, as the convening authority directs;
(B) A judge advocate who is not licensed to practice law in this state may practice military law in this state if such judge advocate is in active duty status under:
(i) 10 U.S.C.; or
(ii) 32 U.S.C.;
(4) "State" means one of the several states, the District of Columbia, the Commonwealth of Puerto Rico, Guam, and the U.S. Virgin Islands;
(5) "State active duty" means full-time duty in the state military forces under an order of the governor or otherwise issued by authority of law, and paid by state funds, and includes travel to and from such duty;
(6) "Senior force judge advocate" means the senior judge advocate of the commander of the same force of the state military forces as the accused and who is that commander’s chief legal advisor;
(7) "State military forces" means the national guard of the state of Idaho, as defined in 32 U.S.C., and any other military force organized under the constitution and laws of the state of Idaho, not to include the unorganized militia, when not in a status subjecting them to exclusive jurisdiction under 10 U.S.C. chapter 47. The unorganized militia, state defense force, state national guard, home guard or any other name of any state force that does not meet this definition shall not be part of the "state military forces" under this code;
(8) "Senior force commander" means the commander of the same force of the state military forces as the accused;
(9) "Commanding officer" means only commissioned officers. A commissioned officer who, by virtue of that officer’s grade and assignment, exercises primary command authority over a state militia organization or prescribed territorial area under pertinent official directives is recognized as a commanding officer. "Commanding officer" shall include officers in charge when administering nonjudicial punishment under article 15 of this code. The term "commander" has the same meaning as "commanding officer" unless the context otherwise requires;
(10) "Superior commissioned officer" means a commissioned officer superior in rank, grade, or command;
(11) "Military" means any or all of the state military forces;
(12) "Accuser" means a person who signs and swears to charges, any person who directs that charges nominally be signed and sworn to by another, and any other person who has an interest other than an official interest in the prosecution of the accused;
(13) "Military judge" means an official of a general or special court-martial detailed in accordance with article 26;
(14) "Legal officer" means any commissioned officer designated as a judge advocate to perform legal duties for a command;
(15) "Record," when used in connection with the proceedings of a court-martial, means:
(A) An official written transcript, written summary, or other writing relating to the proceedings; or
(B) An official audiotape, videotape, or similar material from which sound, or sound and visual images, depicting the proceedings may be reproduced;
(16) "Classified information" means:
(A) Any information or material that has been determined by an official of the United States pursuant to law, an executive order, or regulation to require protection against unauthorized disclosure for reasons of national security; and
(B) Any restricted data, as defined in section 11(y) of the atomic energy act of 1954, 42 U.S.C. 2014(y);
(17) "National security" means the national defense and foreign relations of the United States;
(18) "Military offenses" means those offenses prescribed under articles 77 through 117, 123, 124a, 124b, and 131b through 134.
(b) The use of the masculine gender throughout this code shall also include the feminine gender.
ARTICLE 2. PERSONS SUBJECT TO THIS CODE — JURISDICTION
(a) This code applies to all members of the state military forces when serving in a title 32 status or state active duty status as defined in article 1(a)(5) of this code. This code does not apply to members serving in a title 10 status or members of the unorganized militia as defined in section 46-102, Idaho Code.
(b) Subject matter jurisdiction is established if a nexus exists between an offense, either military or nonmilitary, and the state military force, regardless of duty status. Courts-martial convened by the governor or his designated representative have primary jurisdiction of military offenses as defined in article 1(a)(18) of this code. A proper civilian court has primary jurisdiction of a nonmilitary offense when an act or omission violates both this code and local criminal law, foreign or domestic. In such a case, a court-martial may be initiated only after the civilian authority has declined to prosecute or dismissed the charge, provided jeopardy has not attached. Jurisdiction over attempted crimes, conspiracy crimes, solicitation, and accessory crimes must be determined by the underlying offense.
ARTICLE 3. JURISDICTION TO TRY CERTAIN PERSONNEL
(a) Subject to article 43, a person who is in a status in which the person is subject to this chapter and who committed an offense against this chapter while formerly in a status in which the person was subject to this chapter is not relieved from amenability to the jurisdiction of this chapter for that offense by reason of a termination of that person’s former status.
(b) Each person discharged from the state military forces who is later charged with having fraudulently obtained his discharge is, subject to article 43, subject to trial by court-martial on that charge and is, after apprehension, subject to this chapter while in the custody of the state military forces for that trial. Upon conviction of that charge, he is subject to trial by court-martial for all offenses under this chapter committed before the fraudulent discharge.
(c) No person who has deserted from the state military forces may be relieved from amenability to the jurisdiction of this chapter by virtue of a separation from any later period of service.
(d) A member of the state military forces who is subject to this chapter is not, by virtue of the termination of a period of active duty for training or inactive-duty training, relieved from amenability to the jurisdiction of this chapter for an offense against this chapter committed during such period of active duty or inactive-duty training.
ARTICLE 4. DISMISSED OFFICER’S RIGHT TO TRIAL BY COURT-MARTIAL
(a) If any commissioned officer, dismissed by order of the governor or his designated representative, makes a written application for trial by court-martial, setting forth, under oath, that he has been wrongfully dismissed, the governor or his designated representative, as soon as practicable, shall convene a general court-martial to try that officer on the charges on which he was dismissed. A court-martial so convened has jurisdiction to try the dismissed officer on those charges, and he shall be considered to have waived the right to plead any statute of limitations applicable to any offense with which he is charged. The court-martial may, as part of its sentence, adjudge the affirmance of the dismissal, but if the court-martial acquits the accused or if the sentence adjudged, as finally approved or affirmed, the adjutant general shall substitute for the dismissal ordered by the governor or his designated representative a form of discharge authorized for administrative issue.
(b) If the governor or his designated representative fails to convene a general court-martial within six (6) months from the presentation of an application for trial under this article, the adjutant general shall substitute for the dismissal ordered by the governor or his designated representative a form of discharge authorized for administrative issue.
(c) If a discharge is substituted for a dismissal under this article, the governor or his designated representative alone may reappoint the officer to such commissioned grade and with such rank as, in the opinion of the governor or his designated representative, that former officer would have attained had he not been dismissed. The reappointment of such a former officer shall be without regard to the existence of a vacancy and shall affect the promotion status of other officers only insofar as the governor or his designated representative may direct. All time between the dismissal and the reappointment shall be considered as actual service for all purposes, including the right to pay and allowances.
(d) If an officer is discharged from any armed force by administrative action or is dropped from the rolls by order of the governor or his designated representative, he has no right to trial under this article.
ARTICLE 5. TERRITORIAL APPLICABILITY OF THE CODE
(a) This code has applicability at all times and in all places subject to the personal jurisdiction as provided in article 2 of this code, or, if not in a duty status, that there is a nexus between the act or omission constituting the offense and the efficient functioning of the state military forces; however, this grant of military jurisdiction shall neither preclude nor limit civilian jurisdiction over an offense, which is limited only by the prohibition of double jeopardy.
(b) Courts-martial and courts of inquiry may be convened and held in units of the state military forces while those units are serving outside the state with the same jurisdiction and powers as to persons subject to this code as if the proceedings were held inside the state, and offenses committed outside the state may be tried and punished either inside or outside the state.
ARTICLE 6. JUDGE ADVOCATES AND LEGAL OFFICERS
(a) The senior force judge advocates in each of the state military forces or that judge advocate’s delegates shall make frequent inspections in the field in supervision of the administration of military justice in that force.
(b) Convening authorities shall at all times communicate directly with their staff judge advocates or legal officers in matters relating to the administration of military justice. The staff judge advocate or legal officer of any command is entitled to communicate directly with the staff judge advocate or legal officer of a superior or subordinate command, or with the state judge advocate.
(c)(1) No person who, with respect to a case, serves in a capacity specified in paragraph (2) of this subsection, may later serve as a staff judge advocate or legal officer to any reviewing or convening authority upon the same case.
(2) The capacities referred to in paragraph (1) of this subsection are, with respect to the case involved, any of the following:
(A) Preliminary hearing officer, court member, military judge, military magistrate, or appellate judge; or
(B) Counsel who have acted in the same case or appeared in any proceeding before a military judge, military magistrate, preliminary hearing officer, or appellate court.
ARTICLE 6a. INVESTIGATION AND DISPOSITION OF MATTERS PERTAINING TO THE FITNESS OF MILITARY JUDGES
(a) The governor or his designee shall prescribe procedures for the investigation and disposition of charges, allegations, or information pertaining to the fitness of a military appellate judge, military judge, or military magistrate to perform the duties of the position involved.
(b) The governor or his designee shall transmit a copy of the procedures prescribed pursuant to this article to the appropriate committees of the Idaho senate and Idaho house of representatives.
ARTICLE 6b. RIGHTS OF THE VICTIM OF AN OFFENSE UNDER THIS CODE
(a) A victim of an offense under this code has the following rights:
(1) The right to be reasonably protected from the accused.
(2) The right to reasonable, accurate, and timely notice of any of the following:
(A) A public hearing concerning the continuation of confinement prior to trial of the accused;
(B) A preliminary hearing under article 32 relating to the offense;
(C) A court-martial relating to the offense;
(D) A public proceeding of the service clemency and parole board relating to the offense; and
(E) The release or escape of the accused, unless such notice may endanger the safety of any person.
(3) The right not to be excluded from any public hearing or proceeding described in paragraph (2) of this subsection unless the military judge or preliminary hearing officer, as applicable, after receiving clear and convincing evidence, determines that testimony by the victim of an offense under this chapter would be materially altered if the victim heard other testimony at that hearing or proceeding.
(4) The right to be reasonably heard at any of the following:
(A) A public hearing concerning the continuation of confinement prior to trial of the accused;
(B) A sentencing hearing relating to the offense; and
(C) A public proceeding of the service clemency and parole board relating to the offense.
(5) The reasonable right to confer with the counsel representing the government at any proceeding described in paragraph (2) of this subsection.
(6) The right to receive restitution as provided in law.
(7) The right to proceedings free from unreasonable delay.
(8) The right to be treated with fairness and with respect for the dignity and privacy of the victim of an offense under this code.
(b) In this article, "victim of an offense under this code" means an individual who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense under this code.
(c) In the case of a victim of an offense under this code who is under eighteen (18) years of age, but who is not a member of the state military forces, incompetent, incapacitated, or deceased, the legal guardians of the victim or the representatives of the victim’s estate, family members, or any other person designated as suitable by the military judge, may assume the rights of the victim under this article.
(d) Enforcement by the Idaho state courts:
(1) If the victim of an offense under this chapter believes that an article 32 preliminary hearing ruling or a court-martial ruling violates the rights of the victim afforded by the provisions of this article, including provisions specified in subsection (a)(4) of this article, the victim may petition the Idaho state courts in accordance with the applicable rules of procedure of the Idaho state courts for a writ of mandamus to require the preliminary hearing officer or the court-martial to comply with the provisions of this article.
(2) Paragraph (1) of this subsection applies with respect to the protections afforded by the following:
(A) The provisions of this article;
(B) Military rule of evidence 513, relating to the psychotherapist-patient privilege;
(C) Military rule of evidence 514, relating to the victim advocate-victim privilege; and
(D) Military rule of evidence 615, relating to the exclusion of witnesses.
(e) Upon notice by counsel for the government to counsel for the accused of the name of an alleged victim of an offense under this article who counsel for the government intends to call as a witness at a proceeding under this article, counsel for the accused shall make any request to interview the victim through the special victims’ counsel or other counsel for the victim, if applicable.
(f) If requested by an alleged victim who is subject to a request for interview under subsection (e) of this article, any interview of the victim by counsel for the accused shall take place only in the presence of the counsel for the government, a counsel for the victim, or, if applicable, a victim advocate.
PART II. APPREHENSION AND RESTRAINT
ARTICLE 7. APPREHENSION
(a) Apprehension is the taking of a person into custody.
(b) Any person authorized by this code or by 10 U.S.C. chapter 47, or by regulations issued under either, to apprehend persons subject to this code, any marshal of a court-martial appointed pursuant to the provisions of this code, and any peace officer or civil officer having authority to apprehend offenders under the laws of the United States or of a state, including but not limited to section 46-1103, Idaho Code, may do so upon probable cause that an offense has been committed and that the person apprehended committed it. However, no warrantless arrest is authorized for misdemeanor offenses under title 18, Idaho Code, that did not occur in the presence of the apprehender.
(c) Commissioned officers, warrant officers, petty officers, and noncommissioned officers have authority to quell quarrels, frays, and disorders among persons subject to this code and to apprehend persons subject to this code who take part therein.
(d) If an offender is apprehended outside the state, the offender’s return to the area must be in accordance with normal extradition procedures or by reciprocal agreement.
(e) No person authorized by this article to apprehend persons subject to this code or the place where such offender is confined, restrained, held, or otherwise housed may require payment of any fee or charge for so receiving, apprehending, confining, restraining, holding, or otherwise housing a person except as otherwise provided by law.
ARTICLE 8. APPREHENSION OF DESERTERS
Any civil officer having authority to apprehend offenders under the laws of the United States or of a state, commonwealth, possession, or the District of Columbia may summarily apprehend a deserter from the state military forces and deliver him into the custody of those forces.
ARTICLE 9. IMPOSITION OF RESTRAINT
(a) Arrest is the restraint of a person by an order, not imposed as a punishment for an offense, directing him to remain within certain specified limits. Confinement is the physical restraint of a person.
(b) An enlisted member may be ordered into arrest or confinement by any commissioned officer by an order, oral or written, delivered in person or through other persons subject to this code. A commanding officer may authorize warrant officers, petty officers, or noncommissioned officers to order enlisted members of the commanding officer’s command or subject to the commanding officer’s authority into arrest or confinement.
(c) A commissioned officer, a warrant officer, or a civilian subject to this code or to trial thereunder may be ordered into arrest or confinement only by a commanding officer to whose authority the person is subject, by an order, oral or written, delivered in person or by another commissioned officer. The authority to order such persons into arrest or confinement may not be delegated.
(d) No person may be ordered into arrest or confinement except for probable cause. However, no warrantless arrest is authorized for a misdemeanor offense under title 18, Idaho Code, that did not occur in the presence of the apprehender.
(e) This article does not limit the authority of persons authorized to apprehend offenders to secure the custody of an alleged offender until proper authority may be notified.
ARTICLE 10. RESTRAINT OF PERSONS CHARGED
(a) In general.
(1) Subject to article 9 and paragraph (2) of this subsection, any person subject to this chapter who is charged with an offense under this chapter may be ordered into arrest or confinement as the circumstances require.
(2) When a person subject to this chapter is charged only with an offense that is normally tried by summary court-martial, the person ordinarily shall not be ordered into confinement.
(b) Notification to accused and related procedures.
(1) When a person subject to this chapter is ordered into arrest or confinement before trial, immediate steps shall be taken:
(A) To inform the person of the specific offense of which the person is accused; and
(B) To try the person or to dismiss the charges and release the person.
(2) To facilitate compliance with paragraph (1) of this subsection, the governor or his designee shall prescribe regulations setting forth procedures relating to referral for trial, including procedures for prompt forwarding of the charges and specifications and, if applicable, the preliminary hearing report submitted under article 32.
ARTICLE 11. PLACE OF CONFINEMENT — REPORTS AND RECEIVING OF PRISONERS
(a) If a person subject to this code is confined before, during, or after trial, confinement shall be in a civilian or military confinement facility.
(b) No person authorized to receive prisoners pursuant to subsection (a) of this article may refuse to receive or keep any prisoner committed to the person’s charge by a commissioned officer of the state military forces, when the committing officer furnishes a statement, signed by such officer, of the offense charged against the prisoner, unless otherwise authorized by law.
(c) Every person authorized to receive prisoners pursuant to subsection (a) of this article to whose charge a prisoner is committed shall, within twenty-four (24) hours after that commitment or as soon as the person is relieved from guard, report to the commanding officer of the prisoner the name of the prisoner, the offense charged against the prisoner, and the name of the person who ordered or authorized the commitment.
ARTICLE 12. CONFINEMENT WITH ENEMY PRISONERS PROHIBITED
No member of the state military forces may be placed in military confinement in immediate association with enemy prisoners or other foreign nationals not members of the armed forces. This article shall not apply to confinement of state military forces in civilian confinement facilities.
ARTICLE 13. PUNISHMENT PROHIBITED BEFORE TRIAL
No person, while being held for trial or awaiting a verdict, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against the person, nor shall the arrest or confinement imposed upon such person be any more rigorous than the circumstances required to ensure the person’s presence.
ARTICLE 14. DELIVERY OF OFFENDERS TO CIVIL AUTHORITIES
(a) A person subject to this code accused of an offense against civil authority may be delivered, upon request, to the civil authority for trial or confinement.
(b) When delivery under this article is made to any civil authority of a person undergoing sentence of a court-martial, the delivery, if followed by conviction in a civil tribunal, interrupts the execution of the sentence of the court-martial, and the offender after having answered to the civil authorities for the offense shall, upon the request of competent military authority, be returned to the place of original custody for the completion of the person’s sentence.
PART III. NONJUDICIAL PUNISHMENT
ARTICLE 15. COMMANDING OFFICER’S NONJUDICIAL PUNISHMENT
(a) Under such regulations as prescribed, any commanding officer (and for purposes of this article, officers-in-charge) may impose disciplinary punishments for minor offenses without the intervention of a court-martial pursuant to this article. The governor, the adjutant general, or an officer of a general or flag rank in command may delegate the powers under this article to a principal assistant who is a member of the state military forces.
(b) Any commanding officer may impose upon enlisted members of the officer’s command:
(1) An admonition;
(2) A reprimand;
(3) The withholding of privileges for not more than six (6) months;
(4) The forfeiture of pay of not more than seven (7) days’ pay;
(5) A fine of not more than seven (7) days’ pay;
(6) A reduction to the next inferior pay grade;
(7) Extra duties, including fatigue or other duties, for not more than fourteen (14) days, which need not be consecutive; and
(8) Restriction to certain specified limits, with or without suspension from duty, for not more than fourteen (14) days, which need not be consecutive.
(c) Any commanding officer of the grade of O-4 or above may impose upon enlisted members of the officer’s command:
(1) Any punishment authorized in subsection (b)(1), (2) and (3) of this article;
(2) The forfeiture of not more than one-half (1/2) of one (1) month’s pay per month for two (2) months;
(3) A fine of not more than one (1) month’s pay;
(4) A reduction to the lowest or any intermediate pay grade, but an enlisted member in a pay grade above E-4 may not be reduced more than two (2) pay grades;
(5) Extra duties, including fatigue or other duties, for not more than forty-five (45) days, which need not be consecutive; and
(6) Restriction to certain specified limits, with or without suspension from duty, for not more than sixty (60) days, which need not be consecutive.
(d) The governor, the adjutant general, an officer exercising general court-martial convening authority, or an officer of a general or flag rank in command may impose:
(1) Upon officers of the officer’s command:
(A) Any punishment authorized in subsection (c)(1), (2), (3) and (6) of this article; and
(B) Arrest in quarters for not more than thirty (30) days, which need not be consecutive.
(2) Upon enlisted members of the officer’s command:
(A) Any punishment authorized in subsection (c) of this article.
(e) Whenever any of those punishments are combined to run consecutively, the total length of the combined punishment cannot exceed the authorized duration of the longest punishment in the combination, and there must be an apportionment of punishments so that no single punishment in the combination exceeds its authorized length under this article.
(f) Except when punishment includes arrest, confinement, or restriction to certain specified limits, a member may not demand trial by court-martial. If any punishment sought includes arrest, confinement, or restriction, a member may demand trial by court-martial if the demand occurs before the imposition of punishment.
(g) The officer who imposes the punishment, or the successor in command, may, at any time, suspend, set aside, mitigate, or remit any part or amount of the punishment and restore all rights, privileges, and property affected. The officer also may:
(1) Mitigate reduction in grade to forfeiture of pay;
(2) Mitigate arrest in quarters to restriction; or
(3) Mitigate extra duties to restriction.
The mitigated punishment shall not be for a greater period than the punishment mitigated. When mitigating reduction in grade to forfeiture of pay, the amount of the forfeiture shall not be greater than the amount that could have been imposed initially under this article by the officer who imposed the punishment mitigated.
(h) A person punished under this article who considers the punishment unjust or disproportionate to the offense may, through the proper channel, appeal to the next superior authority within fifteen (15) days after the punishment is either announced or sent to the accused, as the commander may determine. The appeal shall be promptly forwarded and decided, but the person punished may in the meantime be required to undergo the punishment adjudged. The superior authority may exercise the same powers with respect to the punishment imposed as may be exercised under subsection (g) of this article by the officer who imposed the punishment. Unless the superior authority is an O-7, the member may appeal up through and to the member’s O-7 commander. All superior authorities who review such appeal shall exercise the same powers with respect to the punishment as the officer who imposed the original punishment. Before acting on an appeal from a punishment, the authority that is to act on the appeal may refer the case to a judge advocate for consideration and advice.
(i) The imposition and enforcement of disciplinary punishment under this article for any act or omission is not a bar to trial by court-martial or a civilian court of competent jurisdiction for a serious crime or offense growing out of the same act or omission and not properly punishable under this article; but the fact that a disciplinary punishment has been enforced may be shown by the accused upon trial and, when so shown, it shall be considered in determining the measure of punishment to be adjudged in the event of a finding of guilty.
(j) Whenever a punishment of forfeiture of pay is imposed under this article, the forfeiture may apply to pay accruing before, on, or after the date that punishment is imposed.
(k) Regulations may prescribe the form of records to be kept of proceedings under this article and may prescribe that certain categories of those proceedings shall be in writing.
PART IV. COURT-MARTIAL JURISDICTION
ARTICLE 16. COURTS-MARTIAL CLASSIFIED
The three (3) kinds of courts-martial in the state military forces are:
(1) General courts-martial, consisting of:
(A) A military judge and not less than five (5) members; or
(B) Only a military judge, if before the court is assembled the accused, knowing the identity of the military judge and after consultation with defense counsel, requests orally on the record or in writing a court composed only of a military judge and the military judge approves;
(2) Special courts-martial, consisting of:
(A) A military judge and not less than three (3) members; or
(B) Only a military judge, if one has been detailed to the court, and the accused under the same conditions as those prescribed in subsection (1) (B) of this article so requests; and
(3) Summary courts-martial, consisting of one (1) commissioned officer.
ARTICLE 17. JURISDICTION OF COURTS-MARTIAL IN GENERAL
Each component of the state military forces has court-martial jurisdiction over all members of the particular component who are subject to this code. Additionally, the army and air national guard state military forces have court-martial jurisdiction over all members subject to this code.
ARTICLE 18. JURISDICTION OF GENERAL COURTS-MARTIAL
Subject to article 17 of this code, general courts-martial have jurisdiction to try persons subject to this code for any offense made punishable by this code and may, under such limitations as the governor may prescribe, adjudge any punishment not forbidden by this code.
ARTICLE 19. JURISDICTION OF SPECIAL COURTS-MARTIAL
Subject to article 17 of this code, special courts-martial have jurisdiction to try persons subject to this code for any offense made punishable by this code and may, under such limitations as the governor may prescribe, adjudge any punishment not forbidden by this code except dishonorable discharge, dismissal, confinement for more than one (1) year, forfeiture of pay exceeding two-thirds (2/3) pay per month, or forfeiture of pay for more than one (1) year.
ARTICLE 20. JURISDICTION OF SUMMARY COURTS-MARTIAL
(a) Subject to article 17 of this code, summary courts-martial have jurisdiction to try persons subject to this code, except officers, cadets, and officer candidates, for any offense made punishable by this code under such limitations as the governor may prescribe.
(b) Members do not have the right to reject trial before a summary court-martial. Summary courts-martial may, under such limitations as the governor may prescribe, adjudge any punishment not forbidden by this code except dismissal, dishonorable or bad-conduct discharge, confinement for more than one (1) month, restriction to specified limits for more than two (2) months, or forfeiture of more than two-thirds (2/3) of one (1) month’s pay.
(c) A summary court-martial is a noncriminal forum. A finding of guilty at a summary court-martial does not constitute a criminal conviction.
ARTICLE 21. RESERVED
PART V. APPOINTMENT AND COMPOSITION OF COURTS-MARTIAL
ARTICLE 22. WHO MAY CONVENE GENERAL COURTS-MARTIAL
(a) General courts-martial may be convened by:
(1) The governor;
(2) The adjutant general;
(3) The commanding officer of a force of the state military forces;
(4) The commanding officer of a division or a separate brigade; or
(5) The commanding officer of a separate wing.
(b) If any such commanding officer is an accuser, the court shall be convened by superior competent authority and may in any case be convened by such superior authority if considered desirable by such authority.
ARTICLE 23. WHO MAY CONVENE SPECIAL COURTS-MARTIAL
(a) Special courts-martial may be convened by:
(1) Any person who may convene a general court-martial;
(2) The commanding officer of a garrison, fort, post, camp, station, or air national guard base;
(3) The commanding officer of a brigade, regiment, detached battalion, or corresponding unit of the army;
(4) The commanding officer of a wing, group, separate squadron, or corresponding unit of the air force; or
(5) The commanding officer or officer in charge of any other command when empowered by the adjutant general.
(b) If any such officer is an accuser, the court shall be convened by superior competent authority and may in any case be convened by such superior authority if considered desirable by such authority.
ARTICLE 24. WHO MAY CONVENE SUMMARY COURTS-MARTIAL
(a) Summary courts-martial may be convened by:
(1) Any person who may convene a general or special court-martial;
(2) The commanding officer of a detached company or other detachment, or corresponding unit of the army;
(3) The commanding officer of a detached squadron or other detachment, or corresponding unit of the air force; or
(4) The commanding officer or officer in charge of any other command when empowered by the adjutant general.
(b) When only one (1) commissioned officer is present with a command or detachment, that officer shall be the summary court-martial of that command or detachment and shall hear and determine all summary court-martial cases. Summary courts-martial may, however, be convened in any case by superior competent authority if considered desirable by such authority.
ARTICLE 25. WHO MAY SERVE ON COURTS-MARTIAL
(a) Any commissioned officer of the state military forces is eligible to serve on all courts-martial for the trial of any person subject to this code.
(b) Any warrant officer of the state military forces is eligible to serve on general and special courts-martial for the trial of any person subject to this code, other than a commissioned officer.
(c)(1) Any enlisted member of the state military forces is eligible to serve on a general or special court-martial for the trial of any other enlisted member.
(2) Before a court-martial with a military judge and members is assembled for trial, an enlisted member who is an accused may personally request, orally on the record or in writing, that:
(A) The membership of the court-martial be comprised entirely of officers; or
(B) Enlisted members comprise at least one-third (1/3) of the membership of the court-martial, regardless of whether enlisted members have been detailed to the court-martial.
(3) Except as provided in paragraph (4) of this subsection, after such a request, the accused may not be tried by a general or special court-martial if the membership of the court-martial is inconsistent with the request.
(4) If, because of physical conditions or military exigencies, a sufficient number of eligible officers or enlisted members, as the case may be, is not available to carry out the provisions of paragraph (2) of this subsection, the trial may nevertheless be held. In that event, the convening authority shall make a detailed written statement of the reasons for nonavailability. The statement shall be appended to the record.
(d)(1) The accused in a court-martial with a military judge and members may, after the findings are announced and before any matter is presented in the sentencing phase, request, orally on the record or in writing, sentencing by members.
(2) The convening authority shall detail not less than the number of members necessary to impanel the court-martial under article 29.
(e) When convening a court-martial, the convening authority shall detail as members thereof such members of the state military forces as, in the convening authority’s opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. No member of the state military forces is eligible to serve as a member of a general or special court-martial when that member is the accuser, a witness, or has acted as investigating officer or as counsel in the same case.
(f) Before a court-martial is assembled for the trial of a case, the convening authority may excuse a member of the court from participating in the case. The convening authority may delegate the authority under this subsection to a judge advocate or to any other principal assistant.
ARTICLE 25a. RESERVED
ARTICLE 26. MILITARY JUDGE OF A GENERAL OR SPECIAL COURT-MARTIAL
(a) A military judge shall be detailed to each general and special court-martial.
(b) A military judge shall be:
(1) An active or retired commissioned officer of an organized state military force and qualified, by reason of education, training, experience, and judicial temperament, for duty;
(2) A member in good standing of the bar of the highest court of a state or a member of the bar of a federal court for at least five (5) years;
(3) Certified as a military judge by the senior force judge advocate which is the same force as the accused; and
(4) Certified as qualified, by reason of education, training, experience, and judicial temperament, for duty.
(c) In the instance when a military judge is not a member of the bar of the highest court of the state, the military judge shall be deemed admitted pro hac vice, subject to filing a certificate with the senior force judge advocate which is the same force as the accused setting forth such qualifications provided in subsection (b) of this article.
(d) The military judge of a general or special court-martial shall be designated by the senior force judge advocate which is the same force as the accused, or a designee, for detail by the convening authority. Neither the convening authority nor any staff member of the convening authority shall prepare or review any report concerning the effectiveness, fitness, or efficiency of the military judge so detailed, which relates to performance of duty as a military judge.
(e) No person is eligible to act as military judge in a case if that person is the accuser or a witness, or has acted as preliminary hearing officer or a counsel in the same case.
(f) The military judge of a court-martial may not consult with the members of the court except in the presence of the accused, trial counsel, and defense counsel, nor vote with the members of the court.
(g) A military judge may be detailed under subsection (a) of this article to a court-martial or a proceeding under article 30 that is convened in a different armed force, when so permitted by the senior force judge advocate of the armed force of which the military judge is a member.
ARTICLE 26a. MILITARY MAGISTRATES
(a) A military magistrate will be a commissioned officer of the state military forces who:
(1) Is a member of the bar of a federal court or a member of the bar of the highest court of a state; and
(2) Is certified to be qualified, by reason of education, training, experience, and judicial temperament, for duty as a military magistrate by the state judge advocate.
(b) In accordance with regulations promulgated by the governor or his designee, in addition to duties when designated under this code, a military magistrate may be assigned to perform other duties of a nonjudicial nature.
ARTICLE 27. DETAIL OF TRIAL COUNSEL AND DEFENSE COUNSEL
(a) General provision:
(1) For each general and special court-martial, the authority convening the court shall detail trial counsel, defense counsel, and such assistants as are appropriate.
(2) No person who, with respect to a case, has served as a preliminary hearing officer, court member, military judge, military magistrate, or appellate judge may later serve as trial counsel, assistant trial counsel, or, unless expressly requested by the accused, as defense counsel or assistant or associate defense counsel in the same case. No person who has acted for the prosecution may act later in the same case for the defense nor may any person who has acted for the defense act later in the same case for the prosecution.
(b) Except as provided in subsection (c) of this article, trial counsel, defense counsel, or assistant defense counsel detailed for a general or special court-martial must be a judge advocate as defined in article 1(a)(3) of this code.
(c) Defense counsel and assistant defense counsel detailed for a special or general court-martial shall have the qualifications set forth in subsection (b) of this article.
(d) Trial counsel, assistant trial counsel, defense counsel, and assistant defense counsel detailed for a special court-martial must be determined to be competent to perform such duties by the senior force judge advocate, under such rules as the governor or his designee may prescribe.
ARTICLE 28. DETAIL OR EMPLOYMENT OF REPORTERS AND INTERPRETERS
Under such regulations as may be prescribed, the convening authority of a general or special court-martial or court of inquiry shall detail or employ qualified court reporters, who shall record the proceedings of and testimony taken before that court and may detail or employ interpreters who shall interpret for the court.
ARTICLE 29. ASSEMBLY AND IMPANELING OF MEMBERS — DETAIL OF NEW MEMBERS AND MILITARY JUDGES
(a) The military judge shall announce the assembly of a general or special court-martial with members. After such a court-martial is assembled, no member may be absent, unless the member is excused:
(1) As a result of a challenge;
(2) Under subsection (b)(1)(B)of this article; or
(3) By order of the military judge or the convening authority for disability or other good cause.
(b) Impaneling.
(1) Under rules prescribed by the governor or his designated representative, the military judge of a general or special court-martial with members shall:
(A) After determination of challenges, impanel the court-martial; and
(B) Excuse the members who, having been assembled, are not impaneled.
(2) In a general court-martial, the military judge shall impanel eight (8) members.
(3) In a special court-martial, the military judge shall impanel four (4) members.
(c) In addition to members under subsection (b) of this article, the military judge shall impanel alternate members, if the convening authority authorizes alternate members.
(d) Detail of new members.
(1) If, after members are impaneled, the membership of the court-martial is reduced to fewer than twelve (12) members with respect to a general court-martial in a capital case, fewer than six (6) members with respect to a general court-martial in a noncapital case, or fewer than four (4) members with respect to a special court-martial, the trial may not proceed unless the convening authority details new members and, from among the members so detailed, the military judge impanels new members sufficient in number to provide the membership specified in paragraph (2) of this subsection.
(2) Membership shall be as follows:
(A) At least six (6) but not more than eight (8) members with respect to a general court-martial; and
(B) Four (4) members with respect to a special court-martial.
(e) If the military judge is unable to proceed with the trial because of disability or otherwise, a new military judge shall be detailed to the court-martial.
(f) Evidence.
(1) In the case of new members under subsection (d) of this article, the trial may proceed with the new members present after the evidence previously introduced is read or, in the case of audiotape, videotape, or similar recording, is played in the presence of the new members, the military judge, the accused, and counsel for both sides.
(2) In the case of a new military judge under subsection (e) of this article, the trial shall proceed as if no evidence had been introduced, unless the evidence previously introduced is read or, in the case of audiotape, videotape, or similar recording, is played in the presence of the new military judge, the accused, and counsel for both sides.
PART VI. PRE-TRIAL PROCEDURE
ARTICLE 30. CHARGES AND SPECIFICATIONS
(a) In general. Charges and specifications:
(1) May be preferred only by a person subject to this chapter; and
(2) Shall be preferred by presentment in writing, signed under oath before a commissioned officer of the state military forces who is authorized to administer oaths.
(b) The writing under subsection (a) of this article shall state that:
(1) The signer has personal knowledge of, or has investigated, the matters set forth in the charges and specifications; and
(2) The matters set forth in the charges and specifications are true, to the best of the knowledge and belief of the signer.
(c) When charges and specifications are preferred under subsection (a) of this article, the proper authority shall, as soon as practicable:
(1) Inform the person accused of the charges and specifications; and
(2) Determine what disposition should be made of the charges and specifications in the interest of justice and discipline.
ARTICLE 31. COMPULSORY SELF-INCRIMINATION PROHIBITED
(a) No person subject to this code may compel any person to incriminate himself or to answer any question, the answer to which may tend to incriminate him.
(b) No person subject to this code may interrogate or request any statement from an accused or a person suspected of an offense without first informing that person of the nature of the accusation and advising that person that the person does not have to make any statement regarding the offense of which the person is accused or suspected and that any statement made by the person may be used as evidence against the person in a trial by court-martial.
(c) No person subject to this code may compel any person to make a statement or produce evidence before any military court if the statement or evidence is not material to the issue and may tend to degrade the person.
(d) No statement obtained from any person in violation of this article or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against the person in a trial by court-martial.
ARTICLE 32. INVESTIGATION
(a) In general.
(1)(A) Except as provided in subparagraph (B) of this paragraph, a preliminary hearing shall be held before referral of charges and specifications for trial by general court-martial. The preliminary hearing shall be conducted by an impartial hearing officer, detailed by the convening authority in accordance with subsection (b) of this article.
(B) Under regulations prescribed by the governor or his designated representative, a preliminary hearing need not be held if the accused submits a written waiver to the convening authority and the convening authority determines that a hearing is not required.
(2) The purpose of the preliminary hearing shall be limited to determining the following:
(A) Whether or not the specification alleges an offense under this chapter;
(B) Whether or not there is probable cause to believe that the accused committed the offense charged;
(C) Whether or not the convening authority has court-martial jurisdiction over the accused and over the offense; and
(D) A recommendation as to the disposition that should be made of the case.
(b) Hearing officer.
(1) A preliminary hearing under this article shall be conducted by an impartial hearing officer who:
(A) Whenever practicable, shall be a judge advocate who is certified under article 27(b); or
(B) When it is not practicable to appoint a judge advocate because of exceptional circumstances, is not a judge advocate so certified.
(2) In the case of a hearing officer under paragraph (1)(B) of this subsection, a judge advocate who is certified under article 27(b) shall be available to provide legal advice to the hearing officer.
(3) Whenever practicable, the hearing officer shall be equal in grade or senior in grade to military counsel who are detailed to represent the accused or the government at the preliminary hearing.
(c) Report to convening authority. After a preliminary hearing under this article, the hearing officer shall submit to the convening authority a written report, accompanied by a recording of the preliminary hearing, that includes the following:
(1) For each specification, a statement of the reasoning and conclusions of the hearing officer with respect to determinations under subsection (a)(2) of this article, including a summary of relevant witness testimony and documentary evidence presented at the hearing and any observations of the hearing officer concerning the testimony of witnesses and the availability and admissibility of evidence at trial;
(2) Recommendations for any necessary modifications to the form of the charges or specifications;
(3) An analysis of any additional information submitted after the hearing by the parties or by a victim of an offense that, under such rules as the governor or his designated representative may prescribe, is relevant to disposition under articles 30 and 34; and
(4) A statement of action taken on evidence adduced with respect to uncharged offenses, as described in subsection (d) of this article.
(d) If evidence adduced in an investigation under this article indicates that the accused committed an uncharged offense, the investigating officer may investigate the subject matter of that offense without the accused having first been charged with the offense if the accused:
(1) Is present at the investigation;
(2) Is informed of the nature of each uncharged offense investigated; and
(3) Is afforded the opportunities for representation, cross-examination, and presentation prescribed in subsection (b) of this article. A declination under this paragraph shall not serve as the sole basis for ordering a deposition under article 49.
(e) The requirements of this article are binding on all persons administering this code, but failure to follow them does not constitute jurisdictional error under such rules as the governor or his designated representative may prescribe.
(f) A defect in a report under subsection (c) of this article is not a basis for relief if the report is in substantial compliance with subsection (c).
ARTICLE 33. DISPOSITION GUIDANCE
The governor or his designated representative shall issue nonbinding guidance regarding factors that commanders, convening authorities, staff judge advocates, and judge advocates should take into account when exercising their duties with respect to disposition of charges and specifications in the interest of justice and discipline under articles 30 and 34. Such guidance shall take into account, with appropriate consideration of military requirements, the principles of fair and evenhanded administration of Idaho and federal criminal law.
ARTICLE 34. ADVICE TO CONVENING AUTHORITY BEFORE REFERRAL FOR TRIAL
(a) Staff judge advocate advice required before referral. Before referral of charges and specifications to a general court-martial for trial, the convening authority shall submit the matter to the staff judge advocate for advice, which the staff judge advocate shall provide to the convening authority in writing. The convening authority may not refer a specification under a charge to a general court-martial unless the staff judge advocate advises the convening authority in writing that:
(1) The specification alleges an offense under this chapter;
(2) There is probable cause to believe that the accused committed the offense charged; and
(3) A court-martial would have jurisdiction over the accused and the offense.
(b) Staff judge advocate recommendation as to disposition. Together with the written advice provided under subsection (a) of this article, the staff judge advocate shall provide a written recommendation to the convening authority as to the disposition that should be made of the specification in the interest of justice and discipline.
(c) Staff judge advocate advice and recommendation to accompany referral. When a convening authority makes a referral for trial by general court-martial, the written advice of the staff judge advocate under subsection (a) of this article and the written recommendation of the staff judge advocate under subsection (b) of this article with respect to each specification shall accompany the referral.
(d) Special court-martial; convening authority consultation with judge advocate. Before referral of charges and specifications to a special court-martial for trial, the convening authority shall consult a judge advocate on relevant legal issues.
(e) General and special courts-martial; correction of charges and specifications before referral. Before referral for trial by general court-martial or special court-martial, changes may be made to charges and specifications:
(1) To correct errors in form; and
(2) When applicable, to conform to the substance of the evidence contained in a report under article 32(c).
(f) Referral defined. In this article, the term "referral" means the order of a convening authority that charges and specifications against an accused be tried by a specified court-martial.
ARTICLE 35. SERVICE OF CHARGES — COMMENCEMENT OF TRIAL
(a) In general. Trial counsel detailed for a court-martial under article 27 shall cause to be served upon the accused a copy of the charges and specifications referred for trial.
(b) Commencement of trial.
(1) Subject to paragraphs (2) and (3) of this subsection, no trial or other proceeding of a general court-martial or a special court-martial, including any session under article 39(a), may be held over the objection of the accused:
(A) With respect to a general court-martial, from the time of service through the fifth day after the date of service; or
(B) With respect to a special court-martial, from the time of service through the third day after the date of service.
(2) An objection under paragraph (1) of this subsection may be raised only at the first session of the trial or other proceeding and only if the first session occurs before the end of the applicable period under paragraph (1)(A) or (1)(B) of this subsection. If the first session occurs before the end of the applicable period, the military judge shall, at that session, inquire as to whether the defense objects under this subsection.
(3) This subsection shall not apply in time of war.
PART VII. TRIAL PROCEDURE
ARTICLE 36. GOVERNOR OR THE ADJUTANT GENERAL MAY PRESCRIBE RULES
Pretrial, trial, and posttrial procedures, including modes of proof, for courts-martial cases arising under this code, and for courts of inquiry, may be prescribed by the governor or the adjutant general by regulations, or as otherwise provided by law, which shall apply the principles of law and the rules of evidence generally recognized in military criminal cases in the courts of the armed forces but which may not be contrary to or inconsistent with this code.
ARTICLE 37. UNLAWFULLY INFLUENCING ACTION OF COURT
(a) No authority convening a general, special, or summary court-martial, nor any other commanding officer, or officer serving on the staff thereof, may censure, reprimand, or admonish the court or any member, the military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court or with respect to any other exercise of its or their functions in the conduct of the proceedings. No person subject to this code may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or court of inquiry or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to their judicial acts. The foregoing provisions of this subsection shall not apply with respect to: (1) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial; or (2) to statements and instructions given in open court by the military judge, summary court-martial officer, or counsel.
(b) In the preparation of an effectiveness, fitness, or efficiency report, or any other report or document used in whole or in part for the purpose of determining whether a member of the state military forces is qualified to be advanced in grade, or in determining the assignment or transfer of a member of the state military forces, or in determining whether a member of the state military forces should be retained on active status, no person subject to this code may, in preparing any such report: (1) consider or evaluate the performance of duty of any such member as a member of a court-martial or witness therein; or (2) give a less favorable rating or evaluation of any counsel of the accused because of zealous representation before a court-martial.
ARTICLE 38. DUTIES OF TRIAL COUNSEL AND DEFENSE COUNSEL
(a) The trial counsel of a general or special court-martial shall be a judge advocate and shall prosecute in the name of the state and shall, under the direction of the court, prepare the record of the proceedings.
(b) Defense counsel:
(1) The accused has the right to be represented in defense before a general or special court-martial or at an investigation under article 32 of this code as provided in this subsection.
(2) The accused may be represented by civilian counsel at the provision and expense of the accused.
(3) The accused may be represented:
(A) By military counsel detailed under article 27 of this code; or
(B) By military counsel of the accused’s own selection if that counsel is reasonably available as determined under paragraph (7) of this subsection.
(4) If the accused is represented by civilian counsel, military counsel detailed or selected under paragraph (3) of this subsection shall act as associate counsel unless excused at the request of the accused.
(5) Except as provided under paragraph (6) of this subsection, if the accused is represented by military counsel of his own selection under paragraph (3)(B) of this subsection, any military counsel detailed under paragraph (3)(A) of this subsection shall be excused.
(6) The accused is not entitled to be represented by more than one (1) military counsel. However, the person authorized under regulations prescribed under article 27 of this code to detail counsel, in that person’s sole discretion:
(A) May detail additional military counsel as assistant defense counsel; and
(B) If the accused is represented by military counsel of the accused’s own selection under paragraph (3)(B) of this subsection, may approve a request from the accused that military counsel detailed under paragraph (3)(A) of this subsection act as associate defense counsel.
(7) The senior force judge advocate of the same force of which the accused is a member shall determine whether the military counsel selected by an accused is reasonably available.
(c) In any court-martial proceeding resulting in a conviction, the defense counsel:
(1) May forward for attachment to the record of proceedings a brief of such matters as counsel determines should be considered in behalf of the accused on review, including any objection to the contents of the record which counsel considers appropriate; and
(2) May take other action authorized by this code.
ARTICLE 39. SESSIONS
(a) At any time after the service of charges which have been referred for trial to a court-martial composed of a military judge and members, the military judge may, subject to article 35 of this code, call the court into session without the presence of the members for the purpose of:
(1) Hearing and determining motions raising defenses or objections which are capable of determination without trial of the issues raised by a plea of not guilty;
(2) Hearing and ruling upon any matter which may be ruled upon by the military judge under this code, whether or not the matter is appropriate for later consideration or decision by the members of the court;
(3) Holding the arraignment and receiving the pleas of the accused;
(4) Conducting a sentencing proceeding and sentencing the accused in noncapital cases unless the accused requests sentencing by members under article 25; and
(5) Performing any other procedural function which does not require the presence of the members of the court under this code. These proceedings shall be conducted in the presence of the accused, the defense counsel, and the trial counsel and shall be made a part of the record. These proceedings may be conducted notwithstanding the number of court members and without regard to article 29.
(b) When the members of a court-martial deliberate or vote, only the members may be present. All other proceedings, including any other consultation of the members of the court with counsel or the military judge, shall be made a part of the record and shall be in the presence of the accused, the defense counsel, the trial counsel, and the military judge.
ARTICLE 40. CONTINUANCES
The military judge of a court-martial or a summary court-martial may, for reasonable cause grant a continuance to any party for such time and as often as may appear to be just.
ARTICLE 41. CHALLENGES
(a) Challenges generally.
(1) The military judge and members of a general or special court-martial may be challenged by the accused or the trial counsel for cause stated to the court. The military judge or the court shall determine the relevancy and validity of challenges for cause and may not receive a challenge to more than one (1) person at a time. Challenges by the trial counsel shall ordinarily be presented and decided before those by the accused are offered.
(2) If exercise of a challenge for cause reduces the court below the number of members required by article 16 of this code, all parties shall, notwithstanding article 29 of this code, either exercise or waive any challenge for cause then apparent against the remaining members of the court before additional members are detailed to the court. However, peremptory challenges shall not be exercised at that time.
(b) Peremptory challenges.
(1) Each accused and the trial counsel are entitled initially to one (1) peremptory challenge of members of the court. The military judge may not be challenged except for cause.
(2) If exercise of a peremptory challenge reduces the court below the minimum number of members required by article 16 of this code, the parties shall, notwithstanding article 29 of this code, either exercise or waive any remaining peremptory challenge, not previously waived, against the remaining members of the court before additional members are detailed to the court.
(3) Whenever additional members are detailed to the court, and after any challenges for cause against such additional members are presented and decided, each accused and the trial counsel are entitled to one (1) peremptory challenge against members not previously subject to peremptory challenge.
ARTICLE 42. OATHS OR AFFIRMATIONS
(a) Before performing their respective duties, military judges, general and special courts-martial members, trial counsel, defense counsel, reporters, and interpreters shall take an oath or affirmation in the presence of the accused to perform their duties faithfully. The form of the oath or affirmation, the time and place of the taking thereof, the manner of recording the same, and whether the oath or affirmation shall be taken for all cases in which these duties are to be performed or for a particular case, shall be as prescribed in regulation or as provided by law. These regulations may provide that an oath or affirmation to perform faithfully the duties as a military judge, trial counsel, or defense counsel may be taken at any time by any judge advocate or other person certified or designated to be qualified or competent for the duty, and if such an oath or affirmation is taken, it need not again be taken at the time the judge advocate or other person is detailed to that duty.
(b) Each witness before a court-martial shall be examined under oath or affirmation.
ARTICLE 43. STATUTE OF LIMITATIONS
(a) Except as otherwise provided in this article, a person charged with any offense is not liable to be tried by court-martial or punished under article 15 of this code if the offense was committed more than three (3) years before the receipt of sworn charges and specifications by an officer exercising court-martial jurisdiction over the command or before the imposition of punishment under article 15 of this code.
(b) Periods in which the accused is absent without authority or fleeing from justice shall be excluded in computing the period of limitation prescribed in this article.
(c) Periods in which the accused was absent from territory in which the state has the authority to apprehend him, or in the custody of civil authorities, or in the hands of the enemy, shall be excluded in computing the period of limitation prescribed in this article.
(d) When the United States is at war, the running of any statute of limitations applicable to any offense under this code:
(1) Involving fraud or attempted fraud against the United States, any state, or any agency of either in any manner, whether by conspiracy or not;
(2) Committed in connection with the acquisition, care, handling, custody, control, or disposition of any real or personal property of the United States or any state; or
(3) Committed in connection with the negotiation, procurement, award, performance, payment, interim financing, cancellation, or other termination or settlement, of any contract, subcontract, or purchase order which is connected with or related to the prosecution of the war, or with any disposition of termination inventory by any war contractor or government agency;
is suspended until two (2) years after the termination of hostilities as proclaimed by the president or by a joint resolution of congress.
(e) Exception.
(1) If charges or specifications are dismissed as defective or insufficient for any cause and the period prescribed by the applicable statute of limitations:
(A) Has expired; or will be met.
(B) Will expire within one hundred eighty (180) days after the date of dismissal of the charges and specifications, trial and punishment under new charges and specifications are not barred by the statute of limitations if the conditions specified in paragraph (2) of this subsection are met.
(2) The conditions referred to in paragraph (1) of this subsection are that the new charges and specifications must:
(A) Be received by an officer exercising summary court-martial jurisdiction over the command within one hundred eighty (180) days after the dismissal of the charges or specifications; and
(B) Allege the same acts or omissions that were alleged in the dismissed charges or specifications (or allege acts or omissions that were included in the dismissed charges or specifications).
(f) Fraudulent enlistment or appointment. A person charged with fraudulent enlistment or fraudulent appointment under article 104a(1) may be tried by court-martial if the sworn charges and specifications are received by an officer exercising summary court-martial jurisdiction with respect to that person, as follows:
(1) In the case of an enlisted member, during the period of the enlistment or five (5) years, whichever provides a longer period.
(2) In the case of an officer, during the period of the appointment or five (5) years, whichever provides a longer period.
(g) DNA evidence. If DNA testing implicates an identified person in the commission of an offense punishable by confinement for more than one (1) year, no statute of limitations that would otherwise preclude prosecution of the offense shall preclude such prosecution until a period of time following the implication of the person by DNA testing has elapsed that is equal to the otherwise applicable limitation period.
ARTICLE 44. FORMER JEOPARDY
(a) No person may, without his consent, be tried a second time for the same offense.
(b) No proceeding in which an accused has been found guilty by a court-martial upon any charge or specification is a trial in the sense of this article until the finding of guilty has become final after review of the case has been fully completed.
(c)(1) A court-martial with a military judge alone is a trial in the sense of this article if, without fault of the accused after introduction of evidence and before announcement of findings under article 53, the case is dismissed or terminated by the convening authority or on motion of the prosecution for failure of available evidence or witnesses.
(2) A court-martial with a military judge and members is a trial in the sense of this article if, without fault of the accused after the members, having taken an oath as members under article 42 and after completion of challenges under article 41, are impaneled, and before announcement of findings under article 53, the case is dismissed or terminated by the convening authority or on motion of the prosecution for failure of available evidence or witnesses.
ARTICLE 45. PLEAS OF THE ACCUSED
(a) Irregular and similar pleas. If an accused after arraignment makes an irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that the accused has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if the accused fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though the accused had pleaded not guilty.
(b) Pleas of guilty. With respect to any charge or specification to which a plea of guilty has been made by the accused and accepted by the military judge or by a court-martial without a military judge, a finding of guilty of the charge or specification may be entered immediately without vote. This finding shall constitute the finding of the court unless the plea of guilty is withdrawn prior to announcement of the sentence, in which event the proceedings shall continue as though the accused had pleaded not guilty.
(c) Harmless error. A variance from the requirements of this article is harmless error if the variance does not materially prejudice the substantial rights of the accused.
ARTICLE 46. OPPORTUNITY TO OBTAIN WITNESSES AND OTHER EVIDENCE IN TRIALS BY COURT
(a) In a case referred for trial by court-martial, the trial counsel and the defense counsel shall have equal opportunity to obtain witnesses and other evidence as prescribed by regulations and provided by law. Process issued in court-martial cases to compel witnesses to appear and testify and to compel the production of other evidence shall apply the principles of law and the rules of courts-martial generally recognized in military criminal cases in the courts of the armed forces of the United States, but which may not be contrary to or inconsistent with this code. Process shall run to any part of the United States, or the territories, commonwealths, and possessions, and may be executed by civil officers as prescribed by the laws of the place where the witness or evidence is located or of the United States.
(b) Subpoena and other process generally. Any subpoena or other process issued under this article:
(1) Shall be similar to that which courts of the state of Idaho or courts of the United States having criminal jurisdiction may issue;
(2) Shall be executed in accordance with regulations prescribed by the governor or his designated representative; and
(3) Shall run to any part of the United States and to the commonwealths and possessions of the United States.
(c) Subpoena and other process for witnesses. A subpoena or other process may be issued to compel a witness to appear and testify:
(1) Before a court-martial, military commission, or court of inquiry;
(2) At a deposition under article 49; or
(3) As otherwise authorized under this chapter.
(d) In general. A subpoena or other process may be issued to compel the production of evidence:
(1) For a court-martial, military commission, or court of inquiry;
(2) For a deposition under article 49;
(3) For an investigation of an offense under this chapter; or
(4) As otherwise authorized under this chapter.
(e) Investigative subpoena. An investigative subpoena under subsection (c)(3) of this article may be issued before referral of charges to a court-martial only if a general court-martial convening authority has authorized counsel for the government to issue such a subpoena or a military judge issues such a subpoena pursuant to article 30.
(f) Warrant or order for wire or electronic communications. With respect to an investigation of an offense under this chapter, a military judge detailed in accordance with article 26 or 30 may issue warrants or court orders for the contents of, and records concerning, wire or electronic communications in the same manner as such warrants and orders may be issued by a district court of the state of Idaho under title 19, Idaho Code, subject to such limitations as the governor or his designated representative may prescribe.
(g) Request for relief from subpoena or other process. If a person requests relief from a subpoena or other process under this article on grounds that compliance is unreasonable or oppressive or is prohibited by law, a military judge detailed in accordance with article 26 or 30 shall review the request and shall:
(1) Order that the subpoena or other process be modified or withdrawn, as appropriate; or
(2) Order the person to comply with the subpoena or other process.
ARTICLE 47. REFUSAL OF PERSON NOT SUBJECT TO CHAPTER TO APPEAR, OR TESTIFY, OR PRODUCE EVIDENCE
(a) In general.
(1) Any person described in paragraph (2) of this subsection who does either of the following is guilty of an offense against the United States:
(A) Willfully neglects or refuses to appear; or
(B) Willfully refuses to qualify as a witness or to testify or to produce any evidence which that person is required to produce.
(2) The persons referred to in paragraph (1) of this subsection are the following:
(A) Any person not subject to this chapter who is issued a subpoena or other process described in subsection (c) of article 46 and is provided a means for reimbursement from the government for fees and mileage at the rates allowed to witnesses attending the courts of the United States or, in the case of extraordinary hardship, is advanced such fees and mileage; and
(B) Any person not subject to this chapter who is issued a subpoena or other process described in subsection (d) of article 46.
(b) The fees and mileage of witnesses shall be advanced or paid out of the appropriations for the compensation of witnesses.
ARTICLE 48. CONTEMPT
(a) Authority to punish.
(1) With respect to any proceeding under this chapter, a judicial officer specified in paragraph (2) of this subsection may punish for contempt any person who:
(A) Uses any menacing word, sign, or gesture in the presence of the judicial officer during the proceeding;
(B) Disturbs the proceeding by any riot or disorder; or
(C) Willfully disobeys a lawful writ, process, order, rule, decree, or command issued with respect to the proceeding.
(2) A judicial officer referred to in paragraph (1) of this subsection is any of the following:
(A) Any military judge detailed to a court-martial, a provost court, a military commission, or any other proceeding under this chapter;
(B) Any military magistrate designated to preside under this code; or
(C) The governor or his designated representative of a court of inquiry.
(b) Review. A punishment under this article:
(1) If imposed by a military judge or military magistrate, may be reviewed by the district court of the judicial district where the proceeding was conducted in accordance with the applicable rules of procedure of the Idaho state courts; and
(2) If imposed by a court of inquiry, shall be subject to review by the convening authority in accordance with rules prescribed by the governor or his designated representative.
ARTICLE 49. DEPOSITIONS
(a) In general.
(1) Subject to paragraph (2) of this subsection, a convening authority or a military judge may order depositions at the request of any party.
(2) A deposition may be ordered under paragraph (1) of this subsection only if the requesting party demonstrates that, due to exceptional circumstances, it is in the interest of justice that the testimony of a prospective witness be preserved for use at a court-martial, military commission, court of inquiry, or other military court or board.
(3) A party who requests a deposition under this article shall give to every other party reasonable written notice of the time and place for the deposition.
(4) A deposition under this article shall be taken before, and authenticated by, an impartial officer, as follows:
(A) Whenever practicable, by an impartial judge advocate certified under article 27(b); or
(B) In exceptional circumstances, by an impartial military or civil officer authorized to administer oaths by the laws of the United States or the laws of the place where the deposition is taken.
(b) Representation by counsel. Representation of the parties with respect to a deposition shall be by counsel detailed in the same manner as trial counsel and defense counsel are detailed under article 27. In addition, the accused shall have the right to be represented by civilian or military counsel in the same manner as provided for in article 38(b).
(c) Admissibility and use as evidence. A deposition order under subsection (a) of this article does not control the admissibility of the deposition in a court-martial or other proceeding under this chapter. Except as otherwise provided by this code, a party may use all or part of a deposition as provided by the rules of evidence.
ARTICLE 50. ADMISSIBILITY OF SWORN TESTIMONY FROM RECORDS OF COURTS OF INQUIRY
(a) Use as evidence by any party. In any case not extending to the dismissal of a commissioned officer, the sworn testimony, contained in the duly authenticated record of proceedings of a court of inquiry, of a person whose oral testimony cannot be obtained, may, if otherwise admissible under the rules of evidence, be read in evidence by any party before a court-martial if the accused was a party before the court of inquiry and if the same issue was involved or if the accused consents to the introduction of such evidence.
(b) Use of evidence by defense. Such testimony may be read in evidence only by the defense in cases extending to the dismissal of a commissioned officer.
(c) Use in courts of inquiry and military boards. Such testimony may also be read in evidence before a court of inquiry.
(d) Audiotape or videotape. Sworn testimony that is recorded by audiotape, videotape, or similar method, and is contained in the duly authenticated record of proceedings of a court of inquiry, is admissible before a court-martial, military commission, court of inquiry, or military board, to the same extent as sworn testimony may be read in evidence before any such body under subsection (a), (b), or (c) of this article.
ARTICLE 50a. DEFENSE OF LACK OF MENTAL RESPONSIBILITY
(a) It is an affirmative defense in a trial by court-martial that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of the acts. Mental disease or defect does not otherwise constitute a defense.
(b) The accused has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence.
(c) Whenever lack of mental responsibility of the accused with respect to an offense is properly at issue, the military judge shall instruct the members of the court as to the defense of lack of mental responsibility under this article and charge them to find the accused:
(1) Guilty;
(2) Not guilty; or
(3) Not guilty only by reason of lack of mental responsibility.
(d) Subsection (c) of this article does not apply to a court-martial composed of a military judge only. In the case of a court-martial composed of a military judge only or a summary court-martial officer, whenever lack of mental responsibility of the accused with respect to an offense is properly at issue, the military judge or summary court-martial officer shall find the accused:
(1) Guilty;
(2) Not guilty; or
(3) Not guilty only by reason of lack of mental responsibility.
(e) Notwithstanding the provisions of article 52 of this code, the accused shall be found not guilty only by reason of lack of mental responsibility if:
(1) A majority of the members of the court-martial present at the time the vote is taken determines that the defense of lack of mental responsibility has been established; or
(2) In the case of a court-martial composed of a military judge only or a summary court-martial officer, the military judge or summary court-martial officer determines that the defense of lack of mental responsibility has been established.
ARTICLE 51. VOTING AND RULINGS
(a) Voting by members of a general or special court-martial on the findings and on the sentence shall be by secret written ballot. The junior member of the court shall count the votes. The count shall be checked by the president, who shall forthwith announce the result of the ballot to the members of the court.
(b) The military judge shall rule upon all questions of law and all interlocutory questions arising during the proceedings. Any such ruling made by the military judge upon any question of law or any interlocutory question other than the factual issue of mental responsibility of the accused is final and constitutes the ruling of the court. However, the military judge may change the ruling at any time during the trial. Unless the ruling is final, if any member objects thereto, the court shall be cleared and closed and the question decided by a voice vote as provided in article 52 of this code, beginning with the junior in rank.
(c) Before a vote is taken on the findings, the military judge shall, in the presence of the accused and counsel, instruct the members of the court as to the elements of the offense and charge them:
(1) That the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond reasonable doubt;
(2) That in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and the accused must be acquitted;
(3) That, if there is a reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt; and
(4) That the burden of proof to establish the guilt of the accused beyond reasonable doubt is upon the state.
(d) Subsections (a), (b), and (c) of this article do not apply to a court-martial composed of a military judge only. The military judge of such a court-martial shall determine all questions of law and fact arising during the proceedings and, if the accused is convicted, adjudge an appropriate sentence. The military judge of such a court-martial shall make a general finding and shall in addition, on request, find the facts specially. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear therein.
ARTICLE 52. VOTES REQUIRED FOR CONVICTION, SENTENCING, AND OTHER MATTERS
(a) In general. No person may be convicted of an offense in a general or special court-martial, other than:
(1) After a plea of guilty under article 45(b);
(2) By a military judge in a court-martial with a military judge alone, under article 16; or
(3) In a court-martial with members under article 16, by the concurrence of at least three-fourths (3/4) of the members present when the vote is taken.
(b) Level of concurrence required.
(1) In general. Except as provided in subsection (a) of this article and in paragraph (2) of this subsection, all matters to be decided by members of a general or special court-martial shall be determined by a majority vote, but a reconsideration of a finding of guilty or reconsideration of a sentence, with a view toward decreasing the sentence, may be made by any lesser vote which indicates that the reconsideration is not opposed by the number of votes required for that finding or sentence.
(2) Sentencing. All sentences imposed by members shall be determined by the concurrence of at least three-fourths (3/4) of the members present when the vote is taken.
ARTICLE 53. FINDINGS AND SENTENCING
(a) Announcement. A court-martial shall announce its findings and sentence to the parties as soon as determined.
(b) Sentencing generally.
(1) General and special courts-martial.
(A) Sentencing by military judge. Except as provided in subparagraph (B) of this paragraph, and in this code for capital offenses, if the accused is convicted of an offense in a trial by general or special court-martial, the military judge shall sentence the accused.
(B) Sentencing by members. If the accused is convicted of an offense by general or special court-martial consisting of a military judge and members, and the accused elects sentencing by members under article 25, the members shall sentence the accused.
(C) Sentence of the accused. The sentence determined pursuant to this paragraph constitutes the sentence of the accused.
(2) Summary courts-martial. If the accused is convicted of an offense in a trial by summary court-martial, the court-martial shall sentence the accused.
ARTICLE 53a. PLEA AGREEMENTS
(a) In general.
(1) At any time before the announcement of findings under article 53, the convening authority and the accused may enter into a plea agreement with respect to such matters as the manner in which the convening authority will dispose of one (1) or more charges and specifications and limitations on the sentence that may be adjudged for one (1) or more charges and specifications.
(2) The military judge of a general or special court-martial may not participate in discussions between the parties concerning prospective terms and conditions of a plea agreement.
(b) Limitation on acceptance of plea agreements. The military judge of a general or special court-martial shall reject a plea agreement that:
(1) Contains a provision that has not been accepted by both parties;
(2) Contains a provision that is not understood by the accused;
(3) Except as provided in subsection (c) of this article, contains a provision for a sentence that is less than the mandatory minimum sentence applicable to an offense;
(4) Is prohibited by law; or
(5) Is contrary to, or is inconsistent with, a regulation prescribed by the governor or his designated representative with respect to terms, conditions, or other aspects of plea agreements.
(c) Limited conditions for acceptance of plea agreement for sentence below mandatory minimum for certain offenses. With respect to an offense:
(1) The military judge may accept a plea agreement that provides for a sentence of bad-conduct discharge; and
(2) Upon recommendation of the trial counsel, in exchange for substantial assistance by the accused in the investigation or prosecution of another person who has committed an offense, the military judge may accept a plea agreement that provides for a sentence that is less than the mandatory minimum sentence for the offense charged.
(d) Binding effect of plea agreement. Upon acceptance by the military judge of a general or special court-martial, a plea agreement shall bind the parties and the court-martial.
ARTICLE 54. RECORD OF TRIAL
(a) General and special courts-martial. Each general or special court-martial shall keep a separate record of the proceedings in each case brought before it. The record shall be certified by a court reporter, except that in the case of death, disability, or absence of a court reporter, the record shall be certified by an official selected as the governor or his designated representative may prescribe by regulation.
(b)(1) A complete verbatim record of the proceedings and testimony shall be prepared in each general and special court-martial case resulting in a conviction; and
(2) In all other court-martial cases, the record shall contain such matters as may be prescribed by regulations.
(c) Summary courts-martial. Each summary court-martial shall keep a separate record of the proceedings in each case, and the record shall be certified in the manner as may be prescribed by regulations.
(d) Copy to accused. A copy of the record of the proceedings of each general and special court-martial shall be given to the accused as soon as it is certified.
(e) Contents of record.
(1) Except as provided in paragraph (2) of this subsection, the record shall contain such matters as the governor or his designated representative may prescribe by regulation.
(2) In accordance with regulations prescribed by the governor or his designated representative, a complete record of proceedings and testimony shall be prepared in any case of a sentence of death, dismissal, discharge, confinement for more than six (6) months, or forfeiture of pay for more than six (6) months.
(f) A copy of the record of the proceedings of each general and special court-martial shall be given to the accused as soon as it is certified.
(g) In the case of a general or special court-martial, upon request, a copy of all prepared records of the proceedings of the court-martial shall be given to the victim of the offense if the victim testified during the proceedings. The records of the proceedings shall be provided without charge and as soon as the records are certified. The victim shall be notified of the opportunity to receive the records of the proceedings.
PART VIII. SENTENCES
ARTICLE 55. CRUEL AND UNUSUAL PUNISHMENTS PROHIBITED
Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment may not be adjudged by a court-martial or inflicted upon any person subject to this code. The use of irons, single or double, except for the purpose of safe custody, is prohibited.
ARTICLE 56. SENTENCING
(a) The punishment which a court-martial may direct for an offense may not exceed such limits as prescribed by this code, but in no instance may a sentence exceed more than ten (10) years for a military offense, nor shall a sentence of death be adjudged. A conviction by general court-martial of any military offense for which an accused may receive a sentence of confinement for more than one (1) year is a felony offense. Except for convictions by a summary court-martial, all other military offenses are misdemeanors. Any conviction by a summary court-martial is not a criminal conviction.
(b) The limits of punishment for violations of the punitive articles prescribed herein shall be the lesser of the sentences prescribed by the manual for courts-martial of the United States currently in effect, and the state manual for courts-martial, but in no instance shall any punishment exceed that authorized by this code.
(c) Imposition of sentence.
(1) In general. In sentencing an accused, a court-martial shall impose punishment that is sufficient, but not greater than necessary, to promote justice and to maintain good order and discipline in the state military forces, taking into consideration:
(A) The nature and circumstances of the offense and the history and characteristics of the accused;
(B) The impact of the offense on:
(i) The financial, social, psychological, or medical well-being of any victim of the offense; and
(ii) The mission, discipline, or efficiency of the command of the accused and any victim of the offense;
(C) The need for the sentence:
(i) To reflect the seriousness of the offense;
(ii) To promote respect for the law;
(iii) To provide just punishment for the offense;
(iv) To promote adequate deterrence of misconduct;
(v) To protect others from further crimes by the accused;
(vi) To rehabilitate the accused; and
(vii) To provide, in appropriate cases, the opportunity for retraining and return to duty to meet the needs of the service; and
(D) The sentences available under this chapter.
(2) Sentencing by military judge. In announcing the sentence in a general or special court-martial in which the accused is sentenced by a military judge alone under article 53, the military judge shall, with respect to each offense of which the accused is found guilty, specify the term of confinement, if any, and the amount of the fine, if any. If the accused is sentenced to confinement for more than one (1) offense, the military judge shall specify whether the terms of confinement are to run consecutively or concurrently.
(3) Sentencing by members. In a general or special court-martial in which the accused has elected sentencing by members, the court-martial shall announce a single sentence for all of the offenses of which the accused was found guilty.
(d) Appeal of sentence to the district court of the county where the court-martial is held.
(1) With the approval of the senior force judge advocate concerned, the government may appeal a sentence, on the grounds that the sentence violates the law or the sentence is unreasonable.
(2) An appeal under this subsection must be filed within forty-two (42) days after the date of entry of judgment.
ARTICLE 56a. RESERVED
ARTICLE 57. EFFECTIVE DATE OF SENTENCES
(a) Execution of sentences. A court-martial sentence shall be executed and take effect as follows:
(1) Forfeiture and reduction. A forfeiture of pay or allowances shall be applicable to pay and allowances accruing on and after the date on which the sentence takes effect. Any forfeiture of pay or allowances or reduction in grade that is included in a sentence of a court-martial takes effect on the earlier of:
(A) The date that is fourteen (14) days after the date on which the sentence is adjudged; or
(B) In the case of a summary court-martial, the date on which the sentence is approved by the convening authority.
(2) Confinement. Any period of confinement included in a sentence of a court-martial begins to run from the date the sentence is adjudged by the court-martial, but periods during which the sentence to confinement is suspended or deferred shall be excluded in computing the service of the term of confinement.
(3) Approval of dismissal. If, in the case of a commissioned officer or cadet, the sentence of a court-martial extends to dismissal, that part of the sentence providing for dismissal may not be executed until approved by the secretary concerned or such undersecretary or assistant secretary as may be designated by the secretary concerned. In such a case, the secretary, undersecretary, or assistant secretary, as the case may be, may commute, remit, or suspend the sentence, or any part of the sentence, as the secretary sees fit. In time of war or national emergency, he may commute a sentence of dismissal to reduction to any enlisted grade. A person so reduced may be required to serve for the duration of the war or emergency and six (6) months thereafter.
(4) Completion of appellate review. If a sentence extends to dismissal, or a dishonorable or bad-conduct discharge, that part of the sentence extending to dismissal, or a dishonorable or bad-conduct discharge, may be executed in accordance with service regulations after completion of appellate review and, with respect to dismissal, approval under paragraph (3) or (4) of this subsection, as appropriate.
(5) Other sentences. Except as otherwise provided in this subsection, a general or special court-martial sentence is effective upon entry of judgment and a summary court-martial sentence is effective when the convening authority acts on the sentence.
(b) Deferral of sentences.
(1) In general. On application by an accused, the convening authority or, if the accused is no longer under his jurisdiction, the officer exercising general court-martial jurisdiction over the command to which the accused is currently assigned may, in his sole discretion, defer the effective date of a sentence of confinement, reduction, or forfeiture. The deferment shall terminate upon entry of judgment or, in the case of a summary court-martial, when the convening authority acts on the sentence. The deferment may be rescinded at any time by the officer who granted it or, if the accused is no longer under his jurisdiction, by the officer exercising general court-martial jurisdiction over the command to which the accused is currently assigned.
(2) Deferral of certain persons sentenced to confinement. In any case in which a court-martial sentences a person referred to in paragraph (3) of this subsection to confinement, the convening authority may defer the service of the sentence to confinement, without the consent of that person, until after the person has been permanently released to the state military forces by a state or foreign country referred to in that paragraph.
(3) Covered persons. Paragraph (2) of this subsection applies to a person subject to this chapter who, while in the custody of a state or foreign country, is temporarily returned by that state or foreign country to the state military forces for trial by court-martial and, after the court-martial, is returned to that state or foreign country under the authority of a mutual agreement or treaty, as the case may be.
(4) State defined. In this subsection, the term "state" includes the District of Columbia and any commonwealth, territory, or possession of the United States.
(5) Deferral while review pending. In any case in which a court-martial sentences a person to confinement, but in which review of the case is pending, the secretary concerned may defer further service of the sentence to confinement while that review is pending.
(c) Appellate review.
(1) Completion of appellate review. Appellate review is complete under this article when a review under this code is completed or a review is completed by the Idaho state courts in accordance with the applicable rules of procedure of the Idaho state courts.
(2) Completion as final judgment of legality of proceedings. The completion of appellate review shall constitute a final judgment as to the legality of the proceedings.
ARTICLE 58. EXECUTION OF CONFINEMENT
(a) A sentence of confinement adjudged by a court-martial, whether or not the sentence includes discharge or dismissal, and whether or not the discharge or dismissal has been executed, may be carried into execution by confinement in any place authorized by this code. Persons so confined are subject to the same discipline and treatment as persons regularly confined or committed to that place of confinement.
(b) The omission of "hard labor" as a sentence authorized under this code does not deprive the state confinement facility from employing it, if it otherwise is within the authority of that facility to do so.
(c) No place of confinement may require payment of any fee or charge for so receiving or confining a person except as otherwise provided by law.
ARTICLE 58a. SENTENCES — REDUCTION IN ENLISTED GRADE
(a) A court-martial sentence of an enlisted member in a pay grade above E-1, as set forth in the judgment of the court-martial entered into the record, includes:
(1) A dishonorable or bad-conduct discharge;
(2) Confinement; or
(3) Reduction of that member to pay grade E-1, if such a reduction is authorized by regulation prescribed by the governor or his designated representative. The reduction in pay grade shall take effect on the date on which the judgment is so entered.
(b) If the sentence of a member who is reduced in pay grade under subsection (a) of this article is set aside or reduced, or, as finally affirmed, does not include any punishment named in subsection (a)(1) or (2) of this article, the rights and privileges of which the person was deprived because of that reduction shall be restored, including pay and allowances.
ARTICLE 58b. SENTENCES — FORFEITURE OF PAY AND ALLOWANCES DURING CONFINEMENT
(a) Generally.
(1) A court-martial sentence described in paragraph (2) of this subsection shall result in the forfeiture of pay, or of pay and allowances, due that member during any period of confinement or parole. The forfeiture pursuant to this article shall take effect on the date determined under this code and may be deferred as provided by this code. The pay and allowances forfeited, in the case of a general court-martial, shall be all pay and allowances due that member during such period and, in the case of a special court-martial, shall be two-thirds (2/3) of all pay due that member during such period.
(2) A sentence covered by this article is any sentence that includes:
(A) Confinement for more than six (6) months; or
(B) Confinement for six (6) months or less and a dishonorable or bad-conduct discharge or dismissal.
(b) In a case involving an accused who has dependents, the convening authority or other person acting under article 60 of this code may waive any or all of the forfeitures of pay and allowances required by subsection (a) of this article for a period not to exceed six (6) months. Any amount of pay or allowances that, except for a waiver under this subsection, would be forfeited shall be paid, as the convening authority or other person taking action directs, to the dependents of the accused.
(c) If the sentence of a member who forfeits pay and allowances under subsection (a) of this article is set aside or disapproved or, as finally approved, does not provide for a punishment referred to in subsection (a)(2) of this article, the member shall be paid the pay and allowances which the member would have been paid, except for the forfeiture, for the period during which the forfeiture was in effect.
PART IX. POSTTRIAL PROCEDURE AND REVIEW OF COURTS-MARTIAL
ARTICLE 59. ERROR OF LAW — LESSER INCLUDED OFFENSE
(a) A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.
(b) Any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm, instead, so much of the finding as includes a lesser included offense.
ARTICLE 60. POSTTRIAL PROCESSING IN GENERAL AND SPECIAL COURTS-MARTIAL
(a) Statement of trial results.
(1) The military judge of a general or special court-martial shall enter into the record of trial a document entitled "statement of trial results," which shall set forth:
(A) Each plea and finding;
(B) The sentence, if any; and
(C) Such other information as the governor or his designated representative may prescribe by regulation.
(2) Copies of the statement of trial results shall be provided promptly to the convening authority, the accused, and any victim of the offense.
(b) Posttrial motions. In accordance with regulations prescribed by the governor or his designated representative, the military judge in a general or special court-martial shall address all posttrial motions and other posttrial matters that:
(1) May affect a plea, a finding, the sentence, the statement of trial results, the record of trial, or any posttrial action by the convening authority; and
(2) Are subject to resolution by the military judge before entry of judgment.
ARTICLE 61. WAIVER OF RIGHT TO APPEAL — WITHDRAWAL OF APPEAL
(a) Waiver of right to appeal. After entry of judgment in a general or special court-martial, under procedures prescribed by the secretary concerned, the accused may waive the right to appellate review in each case subject to such review under this code. Such a waiver shall be signed by the accused and by defense counsel and attached to the record of trial.
(b) Withdrawal of appeal. In a general or special court-martial, the accused may withdraw an appeal at any time.
(c) Waiver or withdrawal as bar. A waiver or withdrawal under this article bars review under this code.
ARTICLE 62. APPEAL BY THE STATE
(a) Generally.
(1) In a trial by court-martial in which a punitive discharge may be adjudged, the state may appeal the following, other than a finding of not guilty with respect to the charge or specification by the members of the court-martial, or by a judge in a bench trial so long as it is not made in reconsideration:
(A) An order or ruling of the military judge which terminates the proceedings with respect to a charge or specification.
(B) An order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.
(C) An order or ruling which directs the disclosure of classified information.
(D) An order or ruling which imposes sanctions for nondisclosure of classified information.
(E) A refusal of the military judge to issue a protective order sought by the state to prevent the disclosure of classified information.
(F) A refusal by the military judge to enforce an order described in subparagraph (E) of this paragraph that has previously been issued by appropriate authority.
(G) An order or ruling of the military judge entering a finding of not guilty with respect to a charge or specification following the return of a finding of guilty by the members.
(2)(A) An appeal of an order or ruling may not be taken unless the trial counsel provides the military judge with written notice of appeal from the order or ruling within seventy-two (72) hours of the order or ruling. Such notice shall include a certification by the trial counsel that the appeal is not taken for the purpose of delay and, if the order or ruling appealed is one which excludes evidence, that the evidence excluded is substantial proof of a fact material in the proceeding.
(B) An appeal of an order or ruling may not be taken when prohibited by article 44.
(3) An appeal under this article shall be diligently prosecuted as provided by law.
(b) An appeal under this article shall be forwarded to the court prescribed in article 67a of this code. In ruling on an appeal under this article, that court may act only with respect to matters of law.
(c) Any period of delay resulting from an appeal under this article shall be excluded in deciding any issue regarding denial of a speedy trial unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was totally frivolous and without merit.
(d) The United States may appeal a ruling or order of a military magistrate in the same manner as had the ruling or order been made by a military judge, except that the issue shall first be presented to the military judge who designated the military magistrate or to a military judge detailed to hear the issue.
(e) The provisions of this article shall be liberally construed to effect its purposes.
ARTICLE 63. REHEARINGS
(a) Each rehearing under this code shall take place before a court-martial composed of members not members of the court-martial which first heard the case. Upon a rehearing, the accused may not be tried for any offense of which he was found not guilty by the first court-martial, and no sentence in excess of or more severe than the original sentence may be adjudged, unless the sentence is based upon a finding of guilty of an offense not considered upon the merits in the original proceedings, or unless the sentence prescribed for the offense is mandatory.
(b) If the sentence adjudged by the first court-martial was in accordance with a plea agreement under article 53a and the accused at the rehearing does not comply with the agreement, or if a plea of guilty was entered for an offense at the first court-martial and a plea of not guilty was entered at the rehearing, the sentence as to those charges or specifications may include any punishment not in excess of that which could have been adjudged at the first court-martial, subject to such limitations as the governor or his designated representative may prescribe by regulation.
(c) If, after appeal by the government under article 56(d), the sentence adjudged is set aside and a rehearing on sentence is ordered by the state court, the court-martial may impose any sentence that is in accordance with the order or ruling setting aside the adjudged sentence, subject to such limitations as the governor or his designated representative may prescribe by regulation.
ARTICLE 64. REVIEW BY THE SENIOR FORCE JUDGE ADVOCATE — REVIEW OF FINDING OF GUILTY IN SUMMARY COURT-MARTIAL
(a) The senior force judge advocate’s review shall be in writing and shall contain the following:
(1) Conclusions as to whether:
(A) The court had jurisdiction over the accused and the offense;
(B) The charge and specification stated an offense; and
(C) The sentence was within the limits prescribed as a matter of law.
(2) A response to each allegation of error made in writing by the accused.
(3) If the case is sent for action under subsection (b) of this article, a recommendation as to the appropriate action to be taken and an opinion as to whether corrective action is required as a matter of law.
(b) Record. The record of trial and related documents in each case reviewed under subsection (a) of this article shall be sent for action to the adjutant general if:
(1) The judge advocate who reviewed the case recommends corrective action;
(2) The sentence approved under this code extends to dismissal, a bad-conduct or dishonorable discharge, or confinement for more than six (6) months; or
(3) Such action is otherwise required by regulations of the adjutant general.
(c) The adjutant general’s discretion.
(1) The adjutant general may:
(A) Disapprove or approve the findings or sentence, in whole or in part;
(B) Remit, commute, or suspend the sentence in whole or in part;
(C) Except where the evidence was insufficient at the trial to support the findings, order a rehearing on the findings, on the sentence, or on both; or
(D) Dismiss the charges.
(2) If a rehearing is ordered but the convening authority finds a rehearing impracticable, the convening authority shall dismiss the charges.
(3) If the opinion of the senior force judge advocate, or designee, in the senior force judge advocate’s review under subsection (a) of this article is that corrective action is required as a matter of law and if the adjutant general does not take action that is at least as favorable to the accused as that recommended by the judge advocate, the record of trial and action thereon shall be sent to the governor for review and action as deemed appropriate.
(d) The senior force judge advocate, or a designee, may review any case in which there has been a finding of not guilty of all charges and specifications. The senior force judge advocate, or designee, may not review a case under this subsection if that person has acted in the same case as an accuser, investigating officer, member of the court, military judge, or counsel or has otherwise acted on behalf of the prosecution or defense. The senior force judge advocate’s review shall be limited to questions of subject matter jurisdiction.
(e) The record of trial and related documents in each case reviewed under subsection (d) of this article shall be sent for action to the adjutant general.
(1) The adjutant general may:
(A) When subject matter jurisdiction is found to be lacking, void the court-martial ab initio, with or without prejudice to the government, as the adjutant general deems appropriate; or
(B) Return the record of trial and related documents to the senior force judge advocate for appeal by the government as provided by law.
ARTICLE 65. TRANSMITTAL AND REVIEW OF RECORDS
(a) Finding of guilty in general or special court-martial. If the judgment of a general or special court-martial entered under this code includes a finding of guilty, the record shall be transmitted to the state staff judge advocate.
(b) Other cases. In all other cases, records of trial by court-martial and related documents shall be transmitted and disposed of as the adjutant general may prescribe by regulation.
ARTICLE 66. RESERVED
ARTICLE 67. RESERVED
ARTICLE 67a. REVIEW BY STATE APPELLATE AUTHORITY
Decisions of a court-martial are from a court with jurisdiction to issue felony convictions and appeals therefrom will be made to the district court of the judicial district wherein the court-martial was conducted within forty-two (42) days from the entry of judgment. For courts-martial held outside of the state of Idaho, venue for appeal purposes shall be in the district court of the fourth judicial district, Ada county, Idaho. The appellate procedures to be followed shall be those provided by law and rule for the appeal of state criminal cases.
ARTICLE 68. RESERVED
ARTICLE 69. RESERVED
ARTICLE 70. APPELLATE COUNSEL
(a) The senior force judge advocate shall detail a judge advocate as appellate government counsel to represent the state in the review or appeal of cases specified in article 67a of this code and before any federal court when requested to do so by the state attorney general.
(b) Upon an appeal by the state, an accused has the right to be represented by detailed military counsel before any reviewing authority and before any appellate court.
(c) Upon the appeal by an accused, the accused has the right to be represented by military counsel before any reviewing authority.
(d) Upon the request of an accused entitled to be so represented, the senior force judge advocate shall appoint a judge advocate to represent the accused in the review or appeal of cases specified in subsections (b) and (c) of this article.
(e) An accused may be represented by civilian appellate counsel at no expense to the state.
ARTICLE 71. EXECUTION OF SENTENCE — SUSPENSION OF SENTENCE
(a) If the sentence of the court-martial extends to dismissal or a dishonorable or bad-conduct discharge and if the right of the accused to appellate review is not waived, and an appeal is not withdrawn under article 61 of this code, that part of the sentence extending to dismissal or a dishonorable or bad-conduct discharge may not be executed until there is a final judgment as to the legality of the proceedings. A judgment as to the legality of the proceedings is final in such cases when review is completed by an appellate court prescribed in article 67a of this code and is deemed final by the law of state where the judgment was had.
(b) If the sentence of the court-martial extends to dismissal or a dishonorable or bad conduct discharge and if the right of the accused to appellate review is waived, or an appeal is withdrawn under article 61 of this code, that part of the sentence extending to dismissal or a dishonorable or bad-conduct discharge may not be executed until review of the case by the senior force judge advocate and any action on that review under article 64 of this code is completed. Any other part of a court-martial sentence may be ordered executed by the convening authority or other person acting on the case under article 60 of this code when so approved under that article.
ARTICLE 72. VACATION OF SUSPENSION
(a) Before the vacation of the suspension of a special court-martial sentence, which as approved includes a bad-conduct discharge, or of any general court-martial sentence, the officer having special court-martial jurisdiction over the probationer shall hold a hearing on an alleged violation of probation. The special court-martial convening authority may detail a judge advocate who is certified under article 27(b) of this code to conduct the hearing. The probationer shall be represented at the hearing by military counsel if the probationer so desires.
(b) The record of the hearing and the recommendation of the officer having special court-martial jurisdiction shall be sent for action to the officer exercising general court-martial jurisdiction over the probationer. If the officer exercising general court-martial jurisdiction vacates the suspension, any unexecuted part of the sentence, except a dismissal, shall be executed, subject to applicable restrictions under article 57 in this code.
(c) The suspension of any other sentence may be vacated by any authority competent to convene, for the command in which the accused is serving or assigned, a court of the kind that imposed the sentence.
ARTICLE 73. PETITION FOR A NEW TRIAL
At any time within three (3) years after approval by the convening authority of a court-martial sentence, the accused may petition the adjutant general for a new trial on the grounds of newly discovered evidence or fraud on the court-martial.
ARTICLE 74. REMISSION AND SUSPENSION
(a) Any authority competent to convene, for the command in which the accused is serving or assigned, a court of the kind that imposed the sentence may remit or suspend any part or amount of the unexecuted part of any sentence, including all uncollected forfeitures other than a sentence approved by the governor.
(b) The governor may, for good cause, substitute an administrative form of discharge for a discharge or dismissal executed in accordance with the sentence of a court-martial.
ARTICLE 75. RESTORATION
(a) Under such regulations as may be prescribed, all rights, privileges, and property affected by an executed part of a court-martial sentence which has been set aside or disapproved, except an executed dismissal or discharge, shall be restored unless a new trial or rehearing is ordered and such executed part is included in a sentence imposed upon the new trial or rehearing.
(b) If a previously executed sentence of dishonorable or bad-conduct discharge is not imposed on a new trial, the governor or his designated representative may substitute therefor a form of discharge authorized for administrative issuance unless the accused is to serve out the remainder of the accused’s enlistment.
(c) If a previously executed sentence of dismissal is not imposed on a new trial, the governor or his designated representative may substitute therefor a form of discharge authorized for administrative issue, and the commissioned officer dismissed by that sentence may be reappointed by the governor alone to such commissioned grade and with such rank as in the opinion of the governor that former officer would have attained had he not been dismissed. The reappointment of such a former officer shall be without regard to the existence of a vacancy and shall affect the promotion status of other officers only insofar as the governor may direct. All time between the dismissal and the reappointment shall be considered as actual service for all purposes, including the right to pay and allowances.
(d) The adjutant general may prescribe regulations, with such limitations as the adjutant general considers appropriate, governing eligibility for pay and allowances for the period after the date on which an executed part of a court-martial sentence is set aside.
ARTICLE 76. FINALITY OF PROCEEDINGS, FINDINGS, AND SENTENCES
The appellate review of records of trial provided by this code, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by this code, and all dismissals and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation as required by this code are final and conclusive. Orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the United States and the several states, subject only to action upon a petition for a new trial as provided in article 73 of this code and to action under article 74 of this code.
ARTICLE 76a. LEAVE REQUIRED TO BE TAKEN PENDING REVIEW OF CERTAIN COURT-MARTIAL CONVICTIONS
Under regulations prescribed, an accused who has been sentenced by a court-martial may be required to take leave pending completion of action under this article if the sentence, as approved under article 60 of this code, includes an unsuspended dismissal or an unsuspended dishonorable or bad-conduct discharge. The accused may be required to begin such leave on the date on which the sentence is approved under article 60 of this code or at any time after such date, and such leave may be continued until the date on which action under this article is completed or may be terminated at any earlier time.
ARTICLE 76b. RESERVED
PART X. PUNITIVE ARTICLES
ARTICLE 77. PRINCIPALS
Any person subject to this code who:
(1) Commits an offense punishable by this code, or aids, abets, counsels, commands, or procures its commission; or
(2) Causes an act to be done which if directly performed by him would be punishable by this code;
is a principal.
ARTICLE 78. ACCESSORY AFTER THE FACT
Any person subject to this code who, knowing that an offense punishable by this code has been committed, receives, comforts, or assists the offender in order to hinder or prevent his apprehension, trial, or punishment shall be punished as a court-martial may direct.
ARTICLE 79. CONVICTION OF OFFENSE CHARGED, LESSER INCLUDED OFFENSES, AND ATTEMPTS
(a) In general. An accused may be found guilty of any of the following:
(1) The offense charged;
(2) A lesser included offense;
(3) An attempt to commit the offense charged; or
(4) An attempt to commit a lesser included offense, if the attempt is an offense in its own right.
(b) Definition. In this article, the term "lesser included offense" means:
(1) An offense that is necessarily included in the offense charged; and
(2) Any lesser included offense so designated by regulation prescribed by the adjutant general.
(c) Regulatory authority. Any designation of a lesser included offense in a regulation referred to in subsection (b) of this article shall be reasonably included in the greater offense.
ARTICLE 80. ATTEMPTS
(a) An act done with specific intent to commit an offense under this code amounting to more than mere preparation and tending, even though failing, to effect its commission, is an attempt to commit that offense.
(b) Any person subject to this code who attempts to commit any offense punishable by this code shall be punished as a court-martial may direct, unless otherwise specifically prescribed.
(c) Any person subject to this code may be convicted of an attempt to commit an offense although it appears on the trial that the offense was consummated.
ARTICLE 81. CONSPIRACY
Any person subject to this code who conspires with any other person to commit an offense under this code shall, if one (1) or more of the conspirators commits an act to effect the object of the conspiracy, be punished as a court-martial may direct.
ARTICLE 82. SOLICITATION
(a) Soliciting commission of offenses generally. Any person subject to this code who solicits or advises another to commit an offense under this code, other than an offense specified in subsection (b) of this article, shall be punished as a court-martial may direct.
(b) Soliciting desertion, mutiny, sedition, or misbehavior before the enemy. Any person subject to this code who solicits or advises another to violate article 85, article 94, or article 99:
(1) If the offense solicited or advised is attempted or is committed, shall be punished with the punishment provided for the commission of the offense; and
(2) If the offense solicited or advised is not attempted or committed, shall be punished as a court-martial may direct.
ARTICLE 83. MALINGERING
Any person subject to this code who, for the purpose of avoiding work, duty, or service, feigns illness, physical disablement, mental lapse, or derangement, or who intentionally inflicts self-injury, shall be punished as a court-martial may direct.
ARTICLE 84. BREACH OF MEDICAL QUARANTINE
Any person subject to this code who is ordered into medical quarantine by a person authorized to issue such order and who, with knowledge of the quarantine and the limits of the quarantine, goes beyond those limits before being released from the quarantine by proper authority shall be punished as a court-martial may direct.
ARTICLE 85. DESERTION
(a) Any member of the state military forces who:
(1) Without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently;
(2) Quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or
(3) Without being regularly separated from one of the state military forces, enlists or accepts an appointment in the same or another one of the state military forces, or in one of the armed forces of the United States, without fully disclosing the fact that he has not been regularly separated, or enters any foreign armed service except when authorized by the United States;
is guilty of desertion.
(b) Any commissioned officer of the state military forces who, after tender of his resignation and before notice of its acceptance, quits his post or proper duties without leave and with intent to remain away therefrom permanently is guilty of desertion.
(c) Any person found guilty of desertion or attempt to desert shall be punished, if the offense is committed in time of war, by confinement of not more than ten (10) years or such other punishment as a court-martial may direct, but if the desertion or attempt to desert occurs at any other time, by such punishment as a court-martial may direct.
ARTICLE 86. ABSENCE WITHOUT LEAVE
Any person subject to this code who, without authority:
(1) Fails to go to his appointed place of duty at the time prescribed;
(2) Goes from that place; or
(3) Absents himself or remains absent from his unit, organization, or place of duty at which he is required to be at the time prescribed;
shall be punished as a court-martial may direct.
ARTICLE 87. MISSING MOVEMENT
Any person subject to this code who through neglect or design misses the movement of a ship, aircraft, or unit with which he is required in the course of duty to move shall be punished as a court-martial may direct.
ARTICLE 87a. RESISTANCE, FLIGHT, BREACH OF ARREST, AND ESCAPE
Any person subject to this code who resists apprehension, flees from apprehension, breaks arrest, or escapes from custody or confinement shall be punished as a court-martial may direct.
ARTICLE 87b. OFFENSES AGAINST CORRECTIONAL CUSTODY AND RESTRICTION
(a) Escape from correctional custody. Any person subject to this code:
(1) Who is placed in correctional custody by a person authorized to do so;
(2) Who, while in correctional custody, is under physical restraint; and
(3) Who escapes from the physical restraint before being released from the physical restraint by proper authority;
shall be punished as a court-martial may direct.
(b) Breach of correctional custody. Any person subject to this code:
(1) Who is placed in correctional custody by a person authorized to do so;
(2) Who, while in correctional custody, is under restraint other than physical restraint; and
(3) Who goes beyond the limits of the restraint before being released from the correctional custody or relieved of the restraint by proper authority;
shall be punished as a court-martial may direct.
(c) Breach of restriction. Any person subject to this code:
(1) Who is ordered to be restricted to certain limits by a person authorized to do so; and
(2) Who, with knowledge of the limits of the restriction, goes beyond those limits before being released by proper authority;
shall be punished as a court-martial may direct.
ARTICLE 88. CONTEMPT TOWARD OFFICIALS
Any commissioned officer who uses contemptuous words against the president, the vice president, congress, the secretary of defense, the secretary of a military department, the secretary of homeland security, or the governor or legislature of the state shall be punished as a court-martial may direct.
ARTICLE 89. DISRESPECT TOWARD SUPERIOR COMMISSIONED OFFICER
(a) Disrespect. Any person subject to this code who behaves with disrespect toward that person’s superior commissioned officer shall be punished as a court-martial may direct.
(b) Assault. Any person subject to this code who strikes that person’s superior commissioned officer or draws or lifts up any weapon or offers any violence against that officer while the officer is in the execution of the officer’s office shall be punished: if the offense is committed in time of war, by confinement of not more than ten (10) years or such other punishment as a court-martial may direct; and, if the offense is committed at any other time, by such punishment as a court-martial may direct.
ARTICLE 90. ASSAULTING OR WILLFULLY DISOBEYING SUPERIOR COMMISSIONED OFFICER
Any person subject to this code who:
(1) Strikes his superior commissioned officer or draws or lifts up any weapon or offers any violence against him while he is in the execution of his office; or
(2) Willfully disobeys a lawful command of his superior commissioned officer;
shall be punished, if the offense is committed in time of war, by confinement of not more than ten (10) years or such other punishment as a court-martial may direct, and if the offense is committed at any other time, by such punishment as a court-martial may direct.
ARTICLE 91. INSUBORDINATE CONDUCT TOWARD WARRANT OFFICER, NONCOMMISSIONED OFFICER OR PETTY OFFICER
Any warrant officer or enlisted member who:
(1) Strikes or assaults a warrant officer, noncommissioned officer, or petty officer, while that officer is in the execution of his office;
(2) Willfully disobeys the lawful order of a warrant officer, noncommissioned officer, or petty officer; or
(3) Treats with contempt or is disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or petty officer, while that officer is in the execution of his office;
shall be punished as a court-martial may direct.
ARTICLE 92. FAILURE TO OBEY ORDER OR REGULATION
Any person subject to this code who:
(1) Violates or fails to obey any lawful general order or regulation;
(2) Having knowledge of any other lawful order issued by a member of the state military forces, which it is his duty to obey, fails to obey the order; or
(3) Is derelict in the performance of his duties;
shall be punished as a court-martial may direct.
ARTICLE 93. CRUELTY AND MALTREATMENT
Any person subject to this code who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be punished as a court-martial may direct.
ARTICLE 93a. PROHIBITED ACTIVITY WITH MILITARY RECRUIT OR TRAINEE BY PERSON IN POSITION OF SPECIAL TRUST
(a) Abuse of training leadership position. Any person subject to this code:
(1) Who is an officer or a noncommissioned officer;
(2) Who is in a training leadership position with respect to a specially protected junior member of the state military forces; and
(3) Who engages in prohibited sexual activity with such specially protected junior member of the state military forces;
shall be punished as a court-martial may direct.
(b) Abuse of position as military recruiter. Any person subject to this code:
(1) Who is a military recruiter and engages in prohibited sexual activity with an applicant for state military service; or
(2) Who is a military recruiter and engages in prohibited sexual activity with a specially protected junior member of the state military forces who is enlisted under a delayed entry program;
shall be punished as a court-martial may direct.
(c) Consent. Consent is not a defense for any conduct at issue in a prosecution under this article.
(d) Definitions. In this article:
(1) "Specially protected junior member of the state military forces" means:
(A) A member of the state military forces who is assigned to, or is awaiting assignment to, basic training or other initial training, including a member who is enlisted under a delayed entry program;
(B) A member of the state military forces who is a cadet, an officer candidate, or a student in any other officer qualification program; and
(C) A member of the state military forces in any program that, by regulation prescribed by the secretary concerned, is identified as a training program for initial career qualification.
(2) "Training leadership position" means, with respect to a specially protected junior member of the state military forces, any instructor position or other leadership position in a basic training program, an officer candidate school, a reserve officers’ training corps unit (ROTC), a training program for entry into the state military forces, or any program that, by regulation prescribed by the secretary concerned, is identified as a training program for initial career qualification.
(3) "Applicant for state military service" means a person who, under the regulations prescribed by the secretary concerned, is an applicant for original enlistment or appointment in the state military forces.
(4) "Military recruiter" means a person who, under regulation prescribed by the secretary concerned, has the primary duty to recruit persons for the state military forces.
(5) "Prohibited sexual activity" means, as specified in the regulations prescribed by the governor or his designated representative, inappropriate physical intimacy under circumstances described in such regulations.
ARTICLE 94. MUTINY OR SEDITION
(a) Any person subject to this code who:
(1) With intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny;
(2) With intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against that authority is guilty of sedition;
(3) Fails to do his utmost to prevent and suppress a mutiny or sedition being committed in his presence, or fails to take all reasonable means to inform his superior commissioned officer or commanding officer of a mutiny or sedition which he knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition.
(b) A person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished as a court-martial may direct.
ARTICLE 95. OFFENSES BY SENTINEL OR LOOKOUT
(a) Drunk or sleeping on post, or leaving post before being relieved. Any sentinel or lookout who is drunk on post, who sleeps on post, or who leaves post before being regularly relieved shall be punished:
(1) If the offense is committed in time of war, by confinement of not more than ten (10) years or other punishment as a court-martial may direct; and
(2) If the offense is committed at any other time, by such punishment as a court-martial may direct.
(b) Loitering or wrongfully sitting on post. Any sentinel or lookout who loiters or wrongfully sits down on post shall be punished as a court-marital may direct.
ARTICLE 95a. DISRESPECT TOWARD SENTINEL OR LOOKOUT
(a) Disrespectful language toward sentinel or lookout. Any person subject to this code who, knowing that another person is a sentinel or lookout, uses wrongful and disrespectful language that is directed toward and within the hearing of the sentinel or lookout who is in the execution of duties as a sentinel or lookout shall be punished as a court-martial may direct.
(b) Disrespectful behavior toward sentinel or lookout. Any person subject to this code who, knowing that another person is a sentinel or lookout, behaves in a wrongful and disrespectful manner that is directed toward and within the sight of the sentinel or lookout who is in the execution of duties as a sentinel or lookout shall be punished as a court-martial may direct.
ARTICLE 96. RELEASING PRISONER WITHOUT PROPER AUTHORITY — DRINKING WITH PRISONER
(a) Any person subject to this code who, without proper authority, releases any prisoner committed to his charge, or who through neglect or design suffers any such prisoner to escape, shall be punished as a court-martial may direct, whether or not the prisoner was committed in strict compliance with law.
(b) Drinking with prisoner. Any person subject to this code who unlawfully drinks any alcoholic beverage with a prisoner shall be punished as a court-martial may direct.
ARTICLE 97. UNLAWFUL DETENTION
Any person subject to this code who, except as provided by law or regulation, apprehends, arrests, or confines any person shall be punished as a court-martial may direct.
ARTICLE 98. MISCONDUCT AS PRISONER
Any person subject to this code who:
(1) For the purpose of securing favorable treatment by his captors, acts without proper authority in a manner contrary to law, custom, or regulation, to the detriment of others of whatever nationality held by the enemy as civilian or military prisoners; or
(2) While in a position of authority over such persons, maltreats them without justifiable cause;
shall be punished as a court-martial may direct.
ARTICLE 99. MISBEHAVIOR BEFORE THE ENEMY
Any person subject to this code who before or in the presence of the enemy:
(1) Runs away;
(2) Shamefully abandons, surrenders, or delivers up any command, unit, place, or military property which it is his duty to defend;
(3) Through disobedience, neglect, or intentional misconduct endangers the safety of any such command, unit, place, or military property;
(4) Casts away his arms or ammunition;
(5) Is guilty of cowardly conduct;
(6) Quits his place of duty to plunder or pillage;
(7) Causes false alarms in any command, unit, or place under control of the armed forces of the United States or the state military forces;
(8) Willfully fails to do his utmost to encounter, engage, capture, or destroy any enemy troops, combatants, vessels, aircraft, or any other thing, which it is his duty so to encounter, engage, capture, or destroy; or
(9) Does not afford all practicable relief and assistance to any troops, combatants, vessels, or aircraft of the armed forces belonging to the United States or its allies, to the state, or to any other state, when engaged in battle;
shall be punished as a court-martial may direct.
ARTICLE 100. SUBORDINATE COMPELLING SURRENDER
Any person subject to this code who compels or attempts to compel the commander of any of the state military forces of the state, or of any other state, place, vessel, aircraft, or other military property, or of any body of members of the armed forces, to give it up to an enemy or to abandon it, or who strikes the colors or flag to an enemy without proper authority, shall be punished as a court-martial may direct.
ARTICLE 101. IMPROPER USE OF COUNTERSIGN
Any person subject to this code who in time of war discloses the parole or countersign to any person not entitled to receive it or who gives to another, who is entitled to receive and use the parole or countersign, a different parole or countersign from that which, to his knowledge, he was authorized and required to give, shall be punished as a court-martial may direct.
ARTICLE 102. FORCING A SAFEGUARD
Any person subject to this code who forces a safeguard shall be punished as a court-martial may direct.
ARTICLE 103. CAPTURED OR ABANDONED PROPERTY
(a) All persons subject to this code shall secure all public property taken for the service of the United States or the state and shall give notice and turn over to the proper authority without delay all captured or abandoned property in their possession, custody, or control.
(b) Any person subject to this code who:
(1) Fails to carry out the duties prescribed in subsection (a) of this article;
(2) Buys, sells, trades, or in any way deals in or disposes of taken, captured, or abandoned property, whereby he receives or expects any profit, benefit, or advantage to himself or another directly or indirectly connected with himself; or
(3) Engages in looting or pillaging;
shall be punished as a court-martial may direct.
ARTICLE 103a. SPIES — RESERVED
ARTICLE 103b. ESPIONAGE — RESERVED
ARTICLE 103c. AIDING THE ENEMY
Any person subject to this code who:
(1) Aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or
(2) Without proper authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly;
shall be punished as a court-martial may direct.
ARTICLE 104. PUBLIC RECORD OFFENSES
Any person subject to this code who, willfully and unlawfully:
(1) Alters, conceals, removes, mutilates, obliterates, or destroys a public record; or
(2) Takes a public record with the intent to alter, conceal, remove, mutilate, obliterate, or destroy the public record;
shall be punished as a court-martial may direct.
ARTICLE 104a. FRAUDULENT ENLISTMENT, APPOINTMENT, OR SEPARATION
Any person who:
(1) Procures his own enlistment or appointment in the state military forces by knowingly false representation or deliberate concealment as to his qualifications for that enlistment or appointment and receives pay or allowances thereunder; or
(2) Procures his own separation from the state military forces by knowingly false representation or deliberate concealment as to his eligibility for that separation;
shall be punished as a court-martial may direct.
ARTICLE 104b. UNLAWFUL ENLISTMENT, APPOINTMENT, OR SEPARATION
Any person subject to this code who effects an enlistment or appointment in or a separation from the state military forces of any person who is known to him to be ineligible for that enlistment, appointment, or separation because it is prohibited by law, regulation, or order shall be punished as a court-martial may direct.
ARTICLE 105. RESERVED
ARTICLE 105a. FALSE OR UNAUTHORIZED PASS OFFENSES
(1) Wrongful making, altering, counterfeiting, tampering. Any person subject to this code who, wrongfully and falsely, makes, alters, counterfeits, or tampers with a military or official pass, permit, discharge certificate, or identification card shall be punished as a court-martial may direct.
(2) Wrongful sale, etc. Any person subject to this code who wrongfully sells, gives, lends, or disposes of a false or unauthorized military or official pass, permit, discharge certificate, or identification card, knowing that the pass, permit, discharge certificate, or identification card is false or unauthorized, shall be punished as a court-martial may direct.
(3) Wrongful use or possession. Any person subject to this code who wrongfully uses or possesses a false or unauthorized military or official pass, permit, discharge certificate, or identification card, knowing that the pass, permit, discharge certificate, or identification card is false or unauthorized, shall be punished as a court-martial may direct.
ARTICLE 106. IMPERSONATION OF AN OFFICER, NONCOMMISSIONED OR PETTY OFFICER, OR AGENT OR OFFICIAL
(1) In general. Any person subject to this code who, wrongfully and willfully, impersonates:
(a) An officer, a noncommissioned officer, or a petty officer;
(b) An agent of superior authority of one of the armed forces; or
(c) An officer of a government;
shall be punished as a court-martial may direct.
(2) Impersonation with intent to defraud. Any person subject to this code who, wrongfully and willfully and with intent to defraud, impersonates any person referred to in subsection (1) of this article shall be punished as a court-martial may direct.
(3) Impersonation of government official without intent to defraud. Any person subject to this code who, wrongfully and willfully and without intent to defraud, impersonates an official of a government by committing an act that exercises or asserts the authority of the office that the person claims to have shall be punished as a court-martial may direct.
ARTICLE 106a. WEARING UNAUTHORIZED INSIGNIA, DECORATION, BADGE, RIBBON, DEVICE, OR LAPEL BUTTON
Any person subject to this code:
(1) Who is not authorized to wear an insignia, decoration, badge, ribbon, device, or lapel button; and
(2) Who wrongfully wears such insignia, decoration, badge, ribbon, device, or lapel button upon the person’s uniform or civilian clothing;
shall be punished as a court-martial may direct.
ARTICLE 107. FALSE OFFICIAL STATEMENTS
(1) False official statements. Any person subject to this code who, with intent to deceive:
(a) Signs any false record, return, regulation, order, or other official document in the line of duty, knowing it to be false; or
(b) Makes any other false official statement in the line of duty, knowing it to be false;
shall be punished as a court-martial may direct.
(2) False swearing. Any person subject to this code:
(a) Who is on military orders;
(b) Who takes an oath that:
(i) Is administered in a manner in which such oath is required or authorized by law; and
(ii) Is administered by a person with authority to do so; and
(c) Who, upon such oath, makes or subscribes to a statement, if the statement is false and at the time of taking the oath the person does not believe the statement to be true;
shall be punished as a court-martial may direct.
ARTICLE 107a. PAROLE VIOLATION
Any person subject to this code:
(1) Who, having been a prisoner as the result of a court-martial conviction or other criminal proceeding, is on parole with conditions; and
(2) Who violates the conditions of parole;
shall be punished as a court-martial may direct.
ARTICLE 108. MILITARY PROPERTY — LOSS, DAMAGE, DESTRUCTION OR WRONGFUL DISPOSITION
Any person subject to this code who, without proper authority:
(1) Sells or otherwise disposes of;
(2) Willfully or through neglect damages, destroys, or loses; or
(3) Willfully or through neglect suffers to be lost, damaged, destroyed, sold, or wrongfully disposed of;
any military property of the United States or of any state shall be punished as a court-martial may direct.
ARTICLE 108a. CAPTURED OR ABANDONED PROPERTY
(1) All persons subject to this code shall secure all public property taken for the service of the United States, or the state, and shall give notice and turn over to the proper authority without delay all captured or abandoned property in their possession, custody, or control.
(2) Any person subject to this code who:
(a) Fails to carry out the duties prescribed in subsection (1) of this article;
(b) Buys, sells, trades, or in any way deals in or disposes of taken, captured, or abandoned property, whereby he receives or expects any profit, benefit, or advantage to himself or another directly or indirectly connected with himself; or
(c) Engages in looting or pillaging;
shall be punished as a court-martial may direct.
ARTICLE 109. PROPERTY OTHER THAN MILITARY PROPERTY — WASTE, SPOILAGE OR DESTRUCTION
Any person subject to this code who willfully or recklessly wastes, spoils, or otherwise willfully and wrongfully destroys or damages any property other than military property of the United States or of any state shall be punished as a court-martial may direct.
ARTICLE 109a. MAIL MATTER — WRONGFUL TAKING, OPENING
(1) Taking. Any person subject to this code who, with the intent to obstruct the correspondence of, or to pry into the business or secrets of, any person or organization, while on military duty, wrongfully takes mail matter before the mail matter is delivered to or received by the addressee shall be punished as a court-martial may direct.
(2) Opening, secreting, destroying, stealing. Any person subject to this code who, while on military duty, wrongfully opens, secretes, destroys, or steals mail matter before the mail matter is delivered to or received by the addressee shall be punished as a court-martial may direct.
ARTICLE 110. IMPROPER HAZARDING OF VESSEL OR AIRCRAFT
(a) Willful and wrongful hazarding. Any person subject to this code who willfully and wrongfully hazards or suffers to be hazarded any vessel or aircraft of the armed forces of the United States or any state military forces shall suffer such punishment as a court-martial may direct.
(b) Negligent hazarding. Any person subject to this code who negligently hazards or suffers to be hazarded any vessel or aircraft of the armed forces of the United States or any state military forces shall be punished as a court-martial may direct.
ARTICLE 111. LEAVING SCENE OF A VEHICLE ACCIDENT
(a) Driver. Any person on state military orders:
(1) Who is the driver of a vehicle that is involved in an accident that results in personal injury or property damage; and
(2) Who wrongfully leaves the scene of the accident;
(3) Who, without providing assistance to an injured person; or
(4) Who, without providing personal identification to others involved in the accident or to appropriate authorities;
shall be punished as a court-martial may direct.
(b) Senior passenger. Any person subject to this code:
(1) Who is passenger in a vehicle that is involved in an accident that results in personal injury or property damage;
(2) Who is the superior commissioned or noncommissioned officer of the driver of the vehicle or is the commander of the vehicle; and
(3) Who wrongfully and unlawfully orders, causes, or permits the driver to leave the scene of the accident;
(i) Without providing assistance to an injured person; or
(ii) Without providing personal identification to others involved in the accident or to appropriate authorities;
shall be punished as a court-martial may direct.
ARTICLE 112. DRUNKENNESS AND OTHER INCAPACITATION OFFENSES
(1) Drunk on duty. Any person subject to this code who is drunk on duty shall be punished as a court-martial may direct.
(2) Incapacitation for duty from drunkenness or drug use. Any person subject to this code who, as a result of indulgence in any alcoholic beverage or any drug, is incapacitated for the proper performance of duty shall be punished as a court-martial may direct.
(3) Drunk prisoner. Any person subject to this code who is a prisoner and, while in such status, is drunk shall be punished as a court-martial may direct.
(4) Definitions. "Drunk" means any intoxication sufficient to impair the rational and full exercise of the mental or physical faculties, or an alcohol concentration of 0.08 or more as shown by an analysis of the person’s blood, breath, or urine subject to the testing standards within title 18, Idaho Code. "Incapacitated" means unfit or unable to perform duties properly as a result of prior alcohol consumption.
(5) Testing. Commanders may order the person to provide a breath, blood, or urine sample if the commander has probable cause to believe that the person is drunk or incapacitated while on duty. Testing under this article will be performed by a peace officer, hospital, or health care professional in the jurisdiction in which a violation of this article has occurred. No military member, peace officer, hospital, or heath care professional, as defined in title 18, Idaho Code, shall incur any civil or criminal liability for any act arising out of administering an evidentiary test for alcohol concentration or for the presence of drugs or other intoxicating substances at the request of a commander. In the event a person ordered to provide a breath, blood, or urine sample refuses to do so, that person may be punished for violating a lawful order as a court-martial may direct.
ARTICLE 112a. WRONGFUL USE, POSSESSION, ETC., OF CONTROLLED SUBSTANCES
(a) Any person subject to this code who wrongfully uses, possesses, manufactures, distributes, imports into the customs territory of the United States, exports from the United States, or introduces into an installation, vessel, vehicle, or aircraft used by or under the control of the armed forces of the United States or of any state military forces a substance described in subsection (b) of this article shall be punished as a court-martial may direct.
(b) The substances referred to in subsection (a) of this article are the following:
(1) Opium, heroin, cocaine, amphetamine, lysergic acid diethylamide, methamphetamine, phencyclidine, barbituric acid, and marijuana and any compound or derivative of any such substance.
(2) Any substance not specified in paragraph (1) of this subsection that is listed on a schedule of controlled substances prescribed by the president for the purposes of the uniform code of military justice of the armed forces of the United States, 10 U.S.C. 801 et seq.
(3) Any other substance not specified in paragraph (1) of this subsection or contained on a list prescribed by the president under paragraph (2) of this subsection that is listed in schedules I through V of article 202 of the controlled substances act, 21 U.S.C. 812.
ARTICLE 113. RESERVED
ARTICLE 114. ENDANGERMENT OFFENSES
(a) Reckless endangerment. Any person subject to this code who engages in conduct that:
(1) Is wrongful and reckless or is wanton; and
(2) Is likely to produce death or grievous bodily harm to another person;
shall be punished as a court-martial may direct.
(b) Dueling. Any person subject to this code:
(1) Who fights or promotes, or is concerned in or connives at fighting, a duel; or
(2) Who, having knowledge of a challenge sent or about to be sent, fails to report the fact promptly to the proper authority;
shall be punished as a court-martial may direct.
(c) Firearm discharge, endangering human life. Any person subject to this code who negligently discharges a firearm under circumstances such as to endanger human life shall be punished as a court-martial may direct.
(d) Carrying concealed weapon. Any person subject to this chapter who, while on military orders, unlawfully or in violation of the adjutant general’s policy or regulation, carries a dangerous weapon concealed on or about his person shall be punished as a court-martial may direct.
ARTICLE 115. COMMUNICATING THREATS
(1) Communicating threats generally. Any person subject to this code who wrongfully communicates a threat to injure the person, property, or reputation of another shall be punished as a court-martial may direct.
(2) Communicating threat to use explosive, etc. Any person subject to this code who wrongfully communicates a threat to injure the person or property of another by use of:
(a) An explosive;
(b) A weapon of mass destruction;
(c) A biological or chemical agent, substance, or weapon; or
(d) A hazardous material;
shall be punished as a court-martial may direct.
(3) Communicating false threat concerning use of explosive, etc. Any person subject to this code who maliciously communicates a false threat concerning injury to the person or property of another by use of:
(a) An explosive;
(b) A weapon of mass destruction;
(c) A biological or chemical agent, substance, or weapon; or
(d) A hazardous material;
shall be punished as a court-martial may direct. The term "false threat" as used in this subsection means a threat that, at the time the threat is communicated, is known to be false by the person communicating the threat.
ARTICLE 116. RIOT OR BREACH OF PEACE
Any person subject to this code who causes or participates in any riot or breach of the peace shall be punished as a court-martial may direct.
ARTICLE 117. PROVOKING SPEECHES OR GESTURES
Any person subject to this code who uses provoking or reproachful words or gestures towards any other person subject to this code shall be punished as a court-martial may direct.
ARTICLE 118. RESERVED
ARTICLE 119. RESERVED
ARTICLE 120. RESERVED
ARTICLE 121. RESERVED
ARTICLE 122. RESERVED
ARTICLE 123. OFFENSES CONCERNING GOVERNMENT COMPUTERS
(a) In general. Any person subject to this chapter who:
(1) Knowingly accesses a government computer, with an unauthorized purpose, and by doing so obtains classified information, with reason to believe such information could be used to the injury of the United States or the state, or to the advantage of any foreign nation, and intentionally communicates, delivers, transmits, or causes to be communicated, delivered, or transmitted such information to any person not entitled to receive it;
(2) Intentionally accesses a government computer, with an unauthorized purpose, and thereby obtains classified or other protected information from any such government computer; or
(3) Knowingly causes the transmission of a program, information, code, or command and, as a result of such conduct, intentionally causes damage without authorization to a government computer;
shall be punished as a court-martial may direct.
(b) Definition. In this article, the term "government computer" means a computer owned or operated by or on behalf of the United States government or state.
ARTICLE 123a. RESERVED
ARTICLE 124. RESERVED
ARTICLE 124a. BRIBERY
(a) Asking for, accepting, or receiving a thing of value. Any person subject to this code:
(1) Who occupies an official position or who has official duties with the state military forces; and
(2) Who wrongfully asks, accepts, or receives a thing of value with the intent to have the person’s decisions or actions influenced with respect to an official matter in which the United States or the state is interested;
shall be punished as a court-martial may direct.
(b) Promising, offering, or giving a thing of value. Any person subject to this code who wrongfully promises, offers, or gives a thing of value to another person who occupies an official position or who has official duties with the state military forces, with the intent to influence the decision or action of another person with respect to an official matter in which the United States or the state is interested, shall be punished as a court-martial may direct.
ARTICLE 124b. GRAFT
(a) Asking for, accepting, or receiving a thing of value. Any person subject to this code:
(1) Who occupies an official position or who has official duties with the state military forces; and
(2) Who wrongfully asks, accepts, or receives a thing of value as compensation for or in recognition of services rendered or to be rendered by the person with respect to an official matter in which the United States or the state is interested;
shall be punished as a court-martial may direct.
(b) Promising, offering, or giving a thing of value. Any person subject to this code who wrongfully promises, offers, or gives a thing of value to another person who occupies an official position or who has official duties with the state military forces, as compensation for or in recognition of services rendered or to be rendered by the other person with respect to an official matter in which the United States or the state is interested, shall be punished as a court-martial may direct.
ARTICLE 125. RESERVED
ARTICLE 126. RESERVED
ARTICLE 127. RESERVED
ARTICLE 128. RESERVED
ARTICLE 129. RESERVED
ARTICLE 130. RESERVED
ARTICLE 131. RESERVED
ARTICLE 131a. RESERVED
ARTICLE 131b. OBSTRUCTING JUSTICE
Any person subject to this code who engages in conduct in the case of a certain person against whom the accused had reason to believe there were or would be criminal or disciplinary proceedings pending pursuant to this code, with intent to influence, impede, or otherwise obstruct the due administration of justice, shall be punished as a court-martial may direct.
ARTICLE 131c. MISPRISION OF A SERIOUS OFFENSE
In general. Any person subject to this code:
(1) Who knows that another person has committed a serious offense; and
(2) Who wrongfully conceals the commission of the offense and fails to make the commission of the offense known to civilian or military authorities as soon as possible;
shall be punished as a court-martial may direct.
ARTICLE 131d. WRONGFUL REFUSAL TO TESTIFY
Any person subject to this code who, in the presence of a court-martial, a board of officers, a military commission, a court of inquiry, a preliminary hearing, or an officer taking a deposition of or for the state military forces or for the United States, wrongfully refuses to qualify as a witness or to answer a question after having been directed to do so by the person presiding shall be punished as a court-martial may direct.
ARTICLE 131e. PREVENTION OF AUTHORIZED SEIZURE OF PROPERTY
Any person subject to this code who, knowing that one (1) or more persons authorized to make searches and seizures are seizing, are about to seize, or are endeavoring to seize property, destroys, removes, or otherwise disposes of the property with intent to prevent the seizure thereof shall be punished as a court-martial may direct.
ARTICLE 131f. NONCOMPLIANCE WITH PROCEDURAL RULES
Any person subject to this code who:
(1) Is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under this chapter; or
(2) Knowingly and intentionally fails to enforce or comply with any provision of this chapter regulating the proceedings before, during, or after trial of an accused;
shall be punished as a court-martial may direct.
ARTICLE 131g. WRONGFUL INTERFERENCE WITH ADVERSE ADMINISTRATIVE PROCEEDING
Any person subject to this code who, having reason to believe that an adverse administrative proceeding is pending against any person subject to this code, wrongfully acts with the intent:
(1) To influence, impede, or obstruct the conduct of the proceeding; or
(2) Otherwise to obstruct the due administration of justice;
shall be punished as a court-martial may direct.
ARTICLE 132. RETALIATION
(a) Any person subject to this code who, with the intent to retaliate against any person for reporting or planning to report a criminal offense, or making or planning to make a protected communication, or with the intent to discourage any person from reporting a criminal offense or making or planning to make a protected communication:
(1) Wrongfully takes or threatens to take an adverse personnel action against any person; or
(2) Wrongfully withholds or threatens to withhold a favorable personnel action with respect to any person;
shall be punished as a court-martial may direct.
(b) Definitions. In this article:
(1) "Protected communication" means the following:
(i) A lawful communication to a member of congress or an inspector general; or
(ii) A communication to a covered individual or organization in which a member of the armed forces complains of, or discloses information that the member reasonably believes constitutes evidence of, any of the following:
(A) A violation of law or regulation, including a law or regulation prohibiting sexual harassment or unlawful discrimination; or
(B) Gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
(2) "Inspector general" has the meaning given that term in 10 U.S.C. 1034.
(3) "Covered individual or organization" means any recipient of a communication specified in clauses (i) through (vi) of 10 U.S.C. 1034(b)(1)(B).
ARTICLE 133. CONDUCT UNBECOMING AN OFFICER AND A GENTLEMAN
Any commissioned officer, cadet, or candidate who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct.
ARTICLE 134. GENERAL ARTICLE
Though not specifically mentioned in this code, all disorders and neglects to the prejudice of good order and discipline in the state military forces and all conduct of a nature to bring discredit upon the state military forces shall be taken cognizance of by a court-martial and punished at the discretion of a military court. Offenses which may be punished under this article include, but are not limited to, those offenses set out in the manual for courts-martial as punishable under this article of the uniform code of military justice, those offenses that violate the criminal laws of the state where the offense occurred, and those offenses that violate the criminal laws of the United States. However, where a crime constitutes an offense that violates both this code and the criminal laws of the state where the offense occurs or criminal laws of the United States, jurisdiction of the military court must be determined in accordance with article 2(b) of this code.
PART XI. MISCELLANEOUS PROVISIONS
ARTICLE 135. COURTS OF INQUIRY
(a) Courts of inquiry to investigate any matter of concern to the state military forces may be convened by any person authorized to convene a general court-martial, whether or not the persons involved have requested such an inquiry.
(b) A court of inquiry consists of three (3) or more commissioned officers. For each court of inquiry, the convening authority shall also appoint counsel for the court.
(c) Any person subject to this code whose conduct is subject to inquiry shall be designated as a party. Any person subject to this code who has a direct interest in the subject of inquiry has the right to be designated as a party upon request to the court. Any person designated as a party shall be given due notice and has the right to be present, to be represented by counsel, to cross-examine witnesses, and to introduce evidence.
(d) Members of a court of inquiry may be challenged by a party, but only for cause stated to the court.
(e) The members, counsel, the reporter, and interpreters of courts of inquiry shall take an oath to faithfully perform their duties.
(f) Witnesses may be summoned to appear and testify and be examined before courts of inquiry, as provided for courts-martial.
(g) Courts of inquiry shall make findings of fact but may not express opinions or make recommendations unless required to do so by the convening authority.
(h) Each court of inquiry shall keep a record of its proceedings, which shall be authenticated by the signatures of the president and counsel for the court and forwarded to the convening authority. If the record cannot be authenticated by the president, it shall be signed by a member in lieu of the president. If the record cannot be authenticated by the counsel for the court, it shall be signed by a member in lieu of the counsel.
ARTICLE 136. AUTHORITY TO ADMINISTER OATHS AND TO ACT AS NOTARY
(a) The following persons may administer oaths for the purposes of military administration, including military justice:
(1) All judge advocates.
(2) All summary courts-martial.
(3) All adjutants, assistant adjutants, acting adjutants, and personnel adjutants.
(4) All other persons designated by regulations of the armed forces of the United States or by statute.
(b) The following persons may administer oaths necessary in the performance of their duties:
(1) The president, military judge, and trial counsel for all general and special courts-martial.
(2) The president and the counsel for the court of any court of inquiry.
(3) All officers designated to take a deposition.
(4) All persons detailed to conduct an investigation.
(5) All recruiting officers.
(6) All other persons designated by regulations of the armed forces of the United States or by statute.
(c) The signature without seal of any such person, together with the title of his office, is prima facie evidence of the person’s authority.
ARTICLE 137. ARTICLES TO BE EXPLAINED
(a) The articles of this code specified in subsection (c) of this article shall be carefully explained to each enlisted member at the time of, or within thirty (30) days after, the member’s initial entrance into a duty status with the state military forces.
(b) Such articles shall be explained again:
(1) After the member has completed basic or recruit training; and
(2) At the time when the member reenlists.
(c) This subsection applies with respect to articles 2, 3, 7 through 15, 25, 27, 31, 37, 38, 55, 77 through 134, and 137 through 139 of this code.
(d) The text of the code and of the regulations prescribed under such code shall be made available to a member of the state military forces, upon request by the member, for the member’s personal examination.
ARTICLE 138. COMPLAINTS OF WRONGS
Any member of the state military forces who believes himself wronged by a commanding officer, and who, upon due application to that commanding officer, is refused redress may complain to any superior commissioned officer, who shall forward the complaint to the officer exercising general court-martial jurisdiction over the officer against whom it is made. The officer exercising general court-martial jurisdiction shall examine into the complaint and take proper measures for redressing the wrong complained of, and shall, as soon as possible, send to the adjutant general a true statement of that complaint, with the proceedings had thereon.
ARTICLE 139. REDRESS OF INJURIES TO PROPERTY
(a) Whenever complaint is made to any commanding officer that willful damage has been done to the property of any person or that the person’s property has been wrongfully taken by members of the state military forces, that officer may, under such regulations prescribed, convene a board to investigate the complaint. The board shall consist of from one (1) to three (3) commissioned officers and, for the purpose of that investigation, it has power to summon witnesses and examine them upon oath, to receive depositions or other documentary evidence, and to assess the damages sustained against the responsible parties. The assessment of damages made by the board is subject to the approval of the commanding officer, and in the amount approved by that officer shall be charged against the pay of the offenders. The order of the commanding officer directing charges herein authorized is conclusive on any disbursing officer for payment to the injured parties of the damages so assessed and approved.
(b) If the offenders cannot be ascertained, but the organization or detachment to which they belong is known, charges totaling the amount of damages assessed and approved may be made in such proportion as may be considered just upon the individual members thereof who are shown to have been present at the scene at the time the damages complained of were inflicted, as determined by the approved findings of the board.
ARTICLE 140. DELEGATION BY THE GOVERNOR
The governor may delegate any authority vested in the governor under this code and provide for the sub-delegation of any such authority, except the power given the governor by article 22 of this code.
ARTICLE 141. PAYMENT OF FEES, COSTS AND EXPENSES
The fees and authorized travel expenses of all witnesses, experts, victims, court reporters, and interpreters, fees for the service of process, the costs of collection, apprehension, detention and confinement, and all other necessary expenses of prosecution and the administration of military justice, to include courts-martial and nonjudicial punishment, not otherwise payable by any other source, shall be paid out of the military division support fund as established in section 46-806, Idaho Code.
ARTICLE 142. PAYMENT OF FINES AND DISPOSITION THEREOF
(a) Fines imposed by a military court or through imposition of nonjudicial punishment may be paid to the state and delivered to the court or imposing officer or to a person executing their process. Fines may be collected in the following manner:
(1) By cash or money order;
(2) By retention of any pay or allowances due or to become due the person fined from any state or the United States;
(3) By garnishment or levy, together with costs, on the wages, goods, and chattels of a person delinquent in paying a fine, as provided by law.
(b) Any sum so received or retained shall be deposited in the military division support fund as established in section 46-806, Idaho Code, or to whomever the court so directs.
ARTICLE 143. UNIFORMITY OF INTERPRETATION
This code shall be so construed as to effectuate its general purpose to make it uniform, so far as practical, with the uniform code of military justice, 10 U.S.C. chapter 47.
ARTICLE 144. IMMUNITY FOR ACTION OF MILITARY COURTS
All persons acting under the provisions of this code, whether as a member of the military or as a civilian, shall be immune from any personal liability for any of the acts or omissions which they did or failed to do as part of their duties under this code.
ARTICLE 145. SEVERABILITY
The provisions of this code are hereby declared to be severable and if any provision of this code or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this code.
ARTICLE 146. SHORT TITLE
This act may be cited as the "Idaho Code of Military Justice" (ICMJ).
ARTICLE 147. TIME OF TAKING EFFECT
This act takes effect July 1, 2019.
[46-1102, added 2015, ch. 268, sec. 2, p. 1079; am. 2019, ch. 113, sec. 1, p. 372; am. 2026, ch. 166, sec. 1, p. 726.]
Arrest of members of the Idaho military not in federal service by members of the Idaho military while acting in their military capacity is prohibited, except in the following circumstances:
(1) If any member fails or refuses to report to his appointed place of duty, his commanding officer in the rank of major or above is authorized to arrest or cause to be arrested such member and have him brought before the commanding officer at his unit or organization headquarters, whether such headquarters be located within or without the borders of the state. After such an arrest, the commanding officer is authorized to transport, or cause to be transported, such member to his appointed place of duty, whether within or without the borders of the state. Furthermore, if a commander, in the rank of major or above, finds that probable cause exists to believe that a minor offense has been committed by a member of his command, he may cause the member to be arrested and brought before him for the purpose of processing nonjudicial punishment under article 15 of the model state code of military justice as provided in section 46-1102, Idaho Code. If military personnel are not available for the purpose of making the arrest or if the officer ordering the arrest deems it advisable, he may issue a warrant to any sheriff or peace officer authorized to serve warrants of arrest, and such sheriff or peace officer shall serve such warrants of arrest immediately, whenever practicable, and make return thereof to the commanding officer issuing the warrant. Upon receipt of the notification of arrest, the commanding officer shall direct that the arrestee be retrieved and brought before him within a reasonable time. Warrants issued under this subsection shall be the equivalent of a misdemeanor warrant issued by a court of the state of Idaho.
(2) If any member of the Idaho military has had charges preferred against him under this chapter, and the convening authority to whom the charges have been forwarded has found that probable cause exists that the offense was committed by the accused and that the incarceration of the accused pending court-martial is required because of special circumstances found to exist which warrant such incarceration, then the convening authority is authorized to arrest such member or cause him to be arrested and have him confined pending trial. If military personnel are not available for the purpose of making the arrest, or if the convening authority deems it advisable, he may issue a warrant to any sheriff or peace officer authorized to serve such warrant in the same manner as other warrants of arrest, and said sheriff or peace officer shall effect the arrest and hold the accused in the county jail of the county in which the arrest is effected. Upon receipt of the notification of arrest, in accordance with the provisions of section 46-1102, Idaho Code, the commanding officer may direct that the arrestee be retrieved and brought before him within a reasonable time. Warrants issued under this subsection shall be the equivalent of a felony warrant issued by a court of the state of Idaho.
[46-1103, added 2015, ch. 268, sec. 2, p. 1120.]
The adjutant general shall have authority to promulgate such regulations as he deems necessary and proper to carry out the intent of this code.
[46-1104, added 2015, ch. 268, sec. 2, p. 1121.]
All persons acting under the provisions of this chapter, whether as a member of the military or as a civilian, shall be immune from any personal liability for any of their acts or omissions which they did or failed to do as part of their duties under this chapter.
[46-1105, added 2015, ch. 268, sec. 2, p. 1121.]
The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.
[46-1106, added 2015, ch. 268, sec. 2, p. 1121.]
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