ICAOS: Legal: All Advisory Opinions

Any state may submit an informal written request to the executive director for assistance in interpreting the rules of this compact. The executive director may seek the assistance of legal counsel, the executive committee, or both, in interpreting the rules. The executive committee may authorize its standing committees to assist in interpreting the rules. Interpretations of the rules shall be issued in writing by the executive director or the executive committee and shall be circulated to all of the states. / Advisory Opinion Policy

Advisory Opinions by Year: 2008 - 2007 :: 2006 :: 2005 :: 2004

2008	Details	At Issue	Finding
Rule(s): Opinion #: Date Issued: Requester:	2.105 & 2.110 (b) 2-2008 07.07.2008 Texas	Authority to Issue Travel Permits Authority of judges and probation or parole officers to permit certain offenders to travel outside of Texas who, by reason of the type of crime committed or the duration of the travel, are not eligible for transfer of supervision under the provisions of the Interstate Compact for Adult Offender Supervision (“ICAOS”) or ICAOS administrative rules. Whether offenders whose offenses otherwise qualify for transfer of supervision under the provisions of ICAOS rules may be permitted to travel out of state for a period of forty-five (45) days or less?	Offenders not subject to ICAOS may, depending on the terms and conditions of their sentences, be permitted to move across state lines without prior approval from the receiving state and neither judges nor probation officers are prohibited by ICAOS from allowing such offenders to travel. An offender who is not relocating but simply leaving the state (for a period not exceeding 45 consecutive days) for routine business travel, vacations, visits to family, medical appointments, and other such out-of-state travel normally undertaken in the activities of everyday life is not subject to the ICAOS rules concerning a transfer of supervision, other than notification requirements in victim sensitive cases, even if otherwise eligible to transfer supervision under the Compact.

Rule(s): Opinion #: Date Issued: Requester:	3.101-3(c)(1) & 4.109 1-2008 03.17.2008 Massachusetts	Clarification of Rule 3.101-3(c)(1) regarding sex offenders living in the receiving state at the time of sentencing and of Rule 4.103 regarding imposition and enforcement of special conditions. 1. Whether a sending state is required to provide details of the sex offense in a request for reporting instructions for sex offenders living in the receiving state at the time of sentencing, pursuant to Rule 3.101-3 (c)(1). 2. Whether a receiving state can deny a transfer request of an offender where the sending state has imposed a condition on the offender that the receiving state is unable to enforce. 3. Whether the provisions of the Compact and its rules supersede conflicting state laws.	The provisions of Rule 3.103 (e) (1) and (2) (governing offenders in the receiving state at time of sentencing) are premised on the proposition that the offender’s continued lawful presence in the receiving state under the compact ultimately depends upon the determination of the offender’s eligibility for transfer. Under ICAOS Rule 4.103, the addition of a special condition which the receiving state is unable to enforce only requires that the receiving state notify the sending state of its inability to enforce a special condition at the time the transfer request is made [ICAOS Rule 4.103 (d)]. It is unquestionably the case that the provisions of the Compact and its rules, by virtue of congressional consent under Article I, Section 10, Clause 3 of the federal Constitution have been ‘transformed into federal law’ and supersede conflicting state laws.

2007	Details	At Issue	Finding
Rule(s): Opinion #: Date Issued: Requester:	5.103 4-2007 11.14.2007 Massachusetts & New York	Whether All Violations Must Occur in the Receiving State	Although the rule does not explicitly state that such violations must occur in the receiving state, it is unreasonable to assume that Rule 5.103 (a) intends that significant violations occurring in the sending state prior to transfer are also to be considered by the receiving state to satisfy the requirements of the rule. The provisions of ICAOS Rule 3.101 are unequivocal in requiring that to be eligible for mandatory transfer an offender must be “in substantial compliance with the terms of supervision in the sending state,” in addition to the other requirements set forth in that rule. In order to qualify for a subsequent ‘mandatory transfer’ under Rule 3.101 an offender would have to demonstrate ‘substantial compliance’ with the terms of supervision in the sending state without which such offender would be disqualified. If the receiving state has accepted the subsequent transfer and by such act has in effect agreed that the offender is in substantial compliance with the terms of supervision, then it is unreasonable to assume the subsequent application of Rule 5.103 (a) to include those prior violations as a basis to require retaking.

Rule(s): Opinion #: Date Issued: Requester:	3.103 (a)(2) 3-2007 09.17.2007 Pennsylvania	Denial of Reporting Instructions	Where an investigation by the receiving state reveals that a transfer request for an offender living in the receiving state at the time of sentencing does not comply with the provisions of Rule 3.101(b) which requires a valid plan of supervision, a receiving state may properly deny the transfer request. If this determination is made prior to the expiration of the time frames set forth in Rule 3.103(a) the issuance of reporting instructions to such an offender has become moot. If the investigation has not been completed, reporting instructions are required to be issued as provided in Rule 3.103(a). Upon completion of investigation, if the receiving state subsequently denies the transfer on the same basis or upon failure to satisfy any of the other requirements of Rule 3.101, the provisions of Rule 3.103(e)(1) and (2) clearly require the offender to return to the sending state or be retaken upon issuance of a warrant.

Rule(s): Opinion #: Date Issued: Requester:	3.101 (b) 2-2007 05.10.2007 New Jersey	Offenders in Federal Housing	A receiving state is not authorized to deny a transfer of an offender based solely on the fact that the offender intends to reside in Section 8 housing. Denial of transfer on this basis, with the exception of sex offenders and those convicted of the manufacture or production of methamphetamine, is tantamount to adding a special condition or requirement prior to the acceptance of transfer in violation of ICAOS Rule 3.101.

Rule(s): Opinion #: Date Issued: Requester:	4.101 1-2007 05.10.2007 Idaho	Clarification that a receiving state “shall supervise an offender... consistent with the supervision of other similar offenders sentenced in the receiving state”	Under the Compact an offender whose sentence includes provisions which, for example, require completion of other terms and conditions such as a court ordered treatment or behavioral modification program or periodic reports filed with the court in addition to merely requiring compliance with all laws, is not in actuality an “unsupervised offender.” As such the relocation of offenders under such sentences is subject to the jurisdiction of the ICAOS and applications for transfer should continue to be submitted and investigated as required under the Compact. During the term of the conditions imposed by the sending state such an offender is subject to the rules of the Compact governing supervision of offenders generally as provided in Chapters 4 and 5 of the Compact rules.

2006	Details	At Issue	Finding
Rule(s): Opinion #: Date Issued: Requester:	5.108 & 4.109-1 17-2006 03.15.2007 Rules Committee	Clarification of Rules 5.108 and 4.109-1.	Each state should determine the extent to which authority is vested in parole and probation officers as well as other law enforcement and peace officers to effect such an arrest, including the need for a warrant. If application for issuance of an arrest warrant must be made to a judge, it may be helpful to point out that Article V, subsection (b) of the state statute enacting ICAOS provides that ICAOS rules have the force and effect of statutory law and are binding in the compacting states. Article IX further provides that the courts of each compacting state shall enforce the Compact and take all actions necessary and appropriate to effectuate the Compact’s purposes and intent.

Rule(s): Opinion #: Date Issued: Requester:	2.105(a)(1) 16-2006 03.06.2007 Colorado	Interpretation of “physical harm”.	In summary, a person charged and adjudicated on a misdemeanor offense of assault would be subject to the compact pursuant to Rule 2.105(a)(1), assuming all other provisions of the compact and rules apply. The fact that the instrumentality of the harm was an automobile has no bearing on the determination of eligibility under Rule 2.105(a)(1). Each state establishes the elements of its own criminal laws. Rule 2.105(a)(1) addresses only the nature of the offense committed (“an offense in which a person has incurred direct or threatened physical or psychological harm”), not the particular instrumentality used in the commission of the offense. If the law of the sending state recognizes the use of an automobile as an element in an assault offense and the offender is so adjudicated, Rule 2.105(a)(1) applies.

Rule(s): Opinion #: Date Issued: Requester:	3.101 15-2006 08.30.2006 Massachusetts	Obligation of the sending state when the offender no longer meets requirements of Rule 3.101.	Under the current rules there is no such retaking requirement which is provided either explicitly or by implication or reasonable inference. In fact, under Rules 5.101, 5.102, and 5.103 retaking by the sending state is “at its sole discretion” except for situations in which the offender has been charged with a subsequent criminal offense and completion of a term of incarceration for that conviction, or placement on probation; or upon a showing that the offender has committed three of more “significant violations” which establish a pattern of “noncompliance of the conditions of supervision.”

Rule(s): Opinion #: Date Issued: Requester:	4.107(b)(2) 14-2006 08.15.2006 Michigan	Clarification on Offenders being charged fee by sending state after transferred to receiving state.	The fee imposed annually under Wisconsin law does not appear to be for the purpose of the supervision of such offenders by parole or probation officers and instead is for the purpose of defraying the cost of sex offender registration and victim notification, it does not appear to fit the criteria of a “supervision fee” and may be collected on Compact offenders. However, under ICAOS Rule 4.108 (a) Wisconsin is solely responsible for the collection of such an annual assessment. While there is no requirement that Michigan undertake to require payment of this fee by an offender, under Rule 4.108 (b), upon notice from Wisconsin that the offender is not complying with this financial obligation, Michigan must notify the offender that this is a violation of the conditions of supervision and must comply as well as providing the offender with the address to which payments are to be sent.

Rule(s): Opinion #: Date Issued: Requester:	3.101 13-2006 08.01.2007 Washington	Clarification on offenders who are undocumented immigrants.	1. An undocumented immigrant who meets the definition of “offender” and seeks to transfer under the Compact is subject to the jurisdiction of the Compact and the immigrant’s status as “undocumented” would not be a per se disqualification as long as the immigrant establishes that the prerequisites of Rule 3.101 have been satisfied. This includes the requirement that the immigrant be in ‘substantial compliance’ with the terms and conditions of supervision in the sending state. 2. If a Court knowingly releases an undocumented immigrant to supervision under the compact, the language of the current rules requires that the supervision of such an offender must be transferred if the mandatory criteria of Rule 3.101 are met and the sending state does not revoke parole or probation based upon an offender’s status as an undocumented immigrant. 3. Under Rule 5.101 retaking of an undocumented immigrant is at the sole discretion of the sending state unless the offender comes within the exceptions provided in Rule 5.102 (upon conviction for a new felony offense and completion of incarceration or placement on probation) or as provided in Rule 5.103 (upon a showing that the offender has committed three or more significant violations arising from separate incidents which establish a pattern of non-compliance with the conditions of supervision). In the eventthat the offender was transferred under the ‘discretionary transfer’ provisions of Rule 3.101-2 and the receiving state has added a special condition to the acceptance of said discretionary transfer which would require retaking of the offender upon determination that the offender is undocumented, then such a special condition would appear to be permitted under the Compact and the rules as was previously concluded in Advisory Opinion 8-2006.

Rule(s): Opinion #: Date Issued: Requester:	5.101 12-2006 08.11.2006 North Carolina	Clarification on Retaking by the sending state.	Neither ICAOS Rule 5.101(b) nor any other current rule requires that a warrant be issued by the sending state when an offender absconds. While Rule 5.101 (a) provides that a sending state may retake any compact offender at its sole discretion, except as required under Rule 5.102 and 5.103, neither the time frame nor the means by which the retaking of the offender shall occur are provided.

Rule(s): Opinion #: Date Issued: Requester:	4.112 11-2006 - R 10.10.2006 North Carolina	Closing supervision by the receiving state.	A Receiving State Closing supervision interest under Rule 4.112, does not preclude the jurisdiction of the Compact except for cases where the original term of supervision has expired. Article I of the Compact and Rule 5.107 specifically authorize officers of a sending state to enter a state where the offender is found and apprehend and retake the offender notwithstanding case closure under Rule 4.112 with the exception of cases in which the original term of supervision has expired.

Rule(s): Opinion #: Date Issued: Requester:	5.103 10-2006 08.14.2006 Massachusetts	Offenders transferred under the compact prior to August 1, 2004.	Offenders transferred prior to the adoption of ICAOS rules August 1, 2004 may be retaken under the current rules if one of the significant violations occurred after August 1, 2004.

Rule(s): Opinion #: Date Issued: Requester:	2.110 9-2006 08.14.2006 Minnesota	An offender being in the receiving state prior to investigation as a valid reason for rejection.	States which allow eligible offenders to transfer prior to the receiving state having an opportunity to investigate are in violation of the Compact under Rule 3.102 (b) and Rule 2.110. In such circumstances the receiving state can properly reject the request for transfer of such an offender, until returned to the sending state, due to the prior failure of the sending state to comply with the requirements of the compact and the rules referenced.

Rule(s): Opinion #: Date Issued: Requester:	3.101-2 8-2006 06.19.2006 Massachusetts	Condition obligating offender to complete residential program.	A receiving state may impose a special condition on an offender transferred under Rule 3.101-2 to attend a treatment facility and may order the sending state to return the offender if that offender has failed the program if the offender has no other means of support in the receiving state. Under the compact and its rules the expectation of the special condition imposed on a discretionary case would be that the sending state would immediately initiate retaking procedures by ordering the return of the offender or issuing a warrant for his return.

Rule(s): Opinion #: Date Issued: Requester:	2.105 7-2006 04.26.2006 Pennsylvania	Determination of second or subsequent misdemeanor DUI offense.	Rule 2.105 (a) (3) provides no such discretion but unequivocally provides that if the “instant offense includes... a second or subsequent misdemeanor offense of driving while impaired by drugs or alcohol” that such a misdemeanor offender “shall be eligible for transfer.” The rule provides no exceptions to applicability based on either the time period between the first and subsequent offense(s) or the jurisdiction in which the convictions occurred.

Rule(s): Opinion #: Date Issued: Requester:	3.101 6-2006 04.26.2006 Massachusetts	Clarification of 90 day period of supervision is determined.	Rule 3.101 (a) should be determined at the time a sending state submits a request for transfer of the offender who at the time of said application must have “more than 90 days or an indefinite period of supervision remaining.”

Rule(s): Opinion #: Date Issued: Requester:	3.104 & 4.101 5-2006 04.04.2006 North Dakota	Time allowed for investigation by receiving state, Rule 4.101 - Manner and degree of supervision.	45 Calendar days is the maximum time the receiving state has under the rules to respond to a sending state’s request for transfer. This rule does not permit a receiving state to impose the establishment of sex offender risk level or community notification on offenders transferred under the Compact if the receiving state does not impose these same requirements on its own offenders. Provisions of Rule 4.101 only apply to the manner in which a receiving state supervises an offender who has already been transferred in compliance with the Compact and the Rules.

Rule(s): Opinion #: Date Issued: Requester:	2.109(a)(3) 3-2006 02.14.2006 New York	Region Members Casting Votes: Does Rule 2.109(a)(3) require that a proposed rule or rule amendment which is voted on by the member states of a region for submission to the Interstate Commission office for referral to the Rules Committee must be adopted by a majority vote of Commissioners from that region and whether non-commissioners, such as deputy compact administrators, may cast votes for this purpose.	No provisions of the compact, bylaws, or rules contemplates that a proposed rule or rule amendment may be officially voted upon at any point in the rulemaking process by anyone other than the duly appointed Commissioner of each state.

Rule(s): Opinion #: Date Issued: Requester:	4.107 2-2006 01.27.2006 Pennsylvania	May a sending state continue to collect supervision fees on a case that is transferred to a receiving state which has no law authorizing the collection of supervision fees.	The sending state is prohibited under this rule from imposing a supervision fee once the offender has been transferred under the Compact.

Rule(s): Opinion #: Date Issued: Requester:	3.103 (b)(1)(B) 1-2006 01.18.2006 Ohio	Shock probation released from prison.	This rule provides that the exception available to offenders under provisions of Rule 3.103 (a)(1)(A) which allows a sending state to grant a travel permit to an offender who was living in the receiving state at the time of sentencing are not applicable to “offenders released to supervision from prison.”

2005	Details	At Issue	Finding
Rule(s): Opinion #: Date Issued: Requested By:	3.101 8-2005 11.21.2005 Illinois	Can a receiving state make a determination that an offender is not in substantial compliance in the sending state, when the offender commits a crime in the receiving state during the period of investigation, or when the offender has an outstanding warrant in the receiving state?	The sending state determines if an offender is in “Substantial Compliance”. If a sending state has taken no action on outstanding warrants or pending charges the offender is considered to be in substantial compliance under the rule.

Rule(s): Opinion #: Date Issued: Requested By:	3.101 (a) (2) 7-2005 09.29.2005 Arizona	Resident & Valid Plan of Supervision: Under Rule 3.101 (a) (2), does the resident criterion stand alone for purposes of acceptance? In other words, can a receiving state deny a transfer request for an offender who meets the resident definition but he is unemployed or has no means of support at the time of the transfer request?	Mandatory transfers require that the offender is either a resident of the receiving or has resident family and employment in the receiving state. In either situation under this rule all mandatory transfers are subject to the requirement that they be pursuant to a "valid plan of supervision".

Rule(s): Opinion #: Date Issued: Requested By:	N/A HIPAA 08.26.2005 Pennsylvania	Guidance from the U.S. Department of Health & Human Services, Office of Civil Rights as to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) Coverage & Exemptions for the Interstate Compact for Adult Offender Supervision	HIPAA specifically authorizes disclosures of protected health information to law enforcement officials who need the information in order to provide health care to the individual and for the health and safety of the individual. [45 CFR 164.512 (k)(5)]. Under these provisions it appears that disclosures of health information which are required to provide for treatment of adult offenders subject to the ICAOS would also be exempt from HIPAA requirements.

Rule(s): Opinion #: Date Issued: Requested By:	2.106 6-2005 06.13.2005 Washington	Opinion as to Washington’s “deferred prosecution” statute.	Even if a statute is labeled as deferred prosecution it may be the equivalent of a deferred sentence if a finding or plea of guilt has been entered and all that is left is for the Court to impose sentence.

Rule(s): Opinion #: Date Issued: Requested By:	3.105 & 3.107 5-2005 06.13.2005 Pennsylvania	Interpretation of Pre Parole Transfers requests in 3.105	A transfer request from a sending state must be provided up to 120 days in advance of the offender’s planned prison release date. Rule 3.105 (b) requires the sending state to notify the receiving state of the offender’s date of release from prison. Section (b) of this rule is equally clear that notification by the sending state must be furnished to the receiving state if the date of the offender’s release from prison is “withdrawn or denied.”

Rule(s): Opinion #: Date Issued: Requested By:	3.101 (c) & 3.101-2 4-2005 05.05.05 Oklahoma	Are offenders who are not eligible to transfer under the provisions of Rule 3.101 (a) or Rule 2.105 of the Rules of the Interstate Compact for Adult Offender Supervision permitted to transfer under Rule 3.101 (c) as a discretionary transfer?	An offender who is under supervision as that term is defined by the Compact and the rules but who is disqualified based on the nature of the offense or the failure to satisfy the eligibility criteria of Rule 3.101 (a) is nevertheless eligible for transfer of supervision under Rule 3.101 (c) as a discretionary transfer.

Rule(s): Opinion #: Date Issued: Requested By:	All 3-2005 03.30.05 Maryland	1. Are the ICAOS rules, which became effective August 1, 2004, applicable to the Final Probation Order entered by the Court on October 2, 2003? 2. If the answer to the first issue is “no,” and the Court allows the defendant, now present in Maryland, to leave the State in order to enroll in the Florida program, would such action constitute an order that would trigger the new Rules of the ICAOS? 3. If the answer to either the first or second issues is “yes,” under the new rules, is the defendant’s probation supervised within the meaning of ICAOS?	1. Interim rules for the administration of the new compact remained in effect until superseded by the new rules promulgated by the Commission. 2. A subsequent order allowing the defendant residing in Maryland to leave the state for a Florida program would trigger the new Rules of ICAOS. 3. If this subsequent order imposes a condition or requirement, such as successful completion of a treatment program, and requires the facility to monitor these conditions or any violations then this would constitute supervision as defined by the ICAOS rules.

Rule(s): Opinion #: Date Issued: Requested By:	5.103 & 5.108 2-2005 03.04.05 Florida	Arresting & Detaining Compact Probationers and Parolees. Authority of officers to arrest an out-of-state offender sent to Florida under the ICAOS on probation violations.	Out of State offenders can be arrested and detained for committing new crimes in the receiving state pursuant to State Law or upon the request of the sending state pending retaking. Out of state offenders can be arrested and detained for failure to comply with conditions of probation if such a failure would have resulted in an arrest of a similar situated in-state offender.

Rule(s): Opinion #: Date Issued: Requested By:	3.107 (a)(12) 1-2005 01.06.05 Oregon	Clarification regarding Rule 3.107 (a)(12) requiring that a sending state include a criminal history as part of the transfer packet. Oregon uses the Oregon Law Enforcement Data System (LEDS) which queries NCIC which provides an automated CCH report. LEDS and NCIC rules restrict us from forwarding automated CCHs to any other criminal justice agency. NCIC policy is that once you receive a response to the CCH inquiry, the information becomes outdated. Therefore, any information that is sent as part of the transfer application packet is no longer valid.	Criminal History information obtained from NCIC can and should be attached pursuant to compact rules with the transfer request application.

2004	Details	At Issue	Finding
Rule(s): Opinion #: Date Issued: Requested By:	1.101 (Offender), 1.101 (Substantial Compliance), & 3.101 9-2004 12.06.04 New Jersey	Offenders sentenced under the Violent Predator Incapacitation Act who seek transfer CSL supervision outside the state of New Jersey.	Considering the literal language and plain meaning of the rules of the Interstate Compact for Adult Offender Supervision, as referenced herein, it is our opinion that CSL offenders are subject to supervision under the Interstate Compact for Adult Offender Supervision and upon proper application and documentation of a valid plan of supervision and verification of the residency and employment criteria as required under those rules should be permitted to transfer to other states for supervision under the Compact.

Rule(s): Opinion #: Date Issued: Requested By:	1.101 (Offender), 1.101 (Supervision) 8-2004 12.20.04 Georgia	Oklahoma sex offender court ordered under control of Oklahoma DOC.	The Oklahoma offender was clearly placed under the supervision of the Oklahoma Department of Corrections and conditions were imposed upon the offender as part of the suspended sentence that require payment of restitution in addition to other requirements which are conditions of probation. Both of the above criteria for supervision under the compact have been satisfied and it appears that any transfer of the offender to another state must be under the terms of the Compact and its’ rules.

Rule(s): Opinion #: Date Issued: Requested By:	3.101 7-2004 11.24.04 Wisconsin	Rejection of Transfers Based on Outstanding Warrants. May a state reject a transfer request from an offender, who is a resident of that state and has verified employment, when there are warrants or pending charges in the receiving state?”	Intent of 3.101 is that while the sending state controls the decision of whether or not to transfer an offender under the Compact, the receiving state has no discretion as to whether or not to accept the case as long as the offender satisfies the criteria provided in this rule. If the sending state has taken no action on these warrants and has not specifically determined these warrants or pending charges to be a basis for revocation proceedings, then the transfer application should not be rejected only on this basis.

Rule(s): Opinion #: Date Issued: Requested By:	N/A MA Proposal 08.11.04 Massachusetts	Consider adoption of an emergency rule under Section 2.109 of the Rules pertaining to the supervision of offenders from the Commonwealth of Massachusetts.	The Compact statute does not provide for an alternative means of compact membership and the previous “transition period” for the applicability of the rules under the predecessor compact are now “null and void” based on the explicit provisions of the compact statutes of the member states.

Rule(s): Opinion #: Date Issued: Requested By:	2.106 4-2004 06.30.04 Florida	Clarification as to the eligibility for transfer of supervision of an offender subject to “deferred sentences” pursuant to Section 2.106 of the amended rule adopted March 12, 2004.	In determining the eligibility of an offender and the application of the ICAOS, one must look not at the legal definitions but rather the legal action taken by a court of competent jurisdiction or paroling authorities. To find otherwise would lead to disruptions in the smooth movement of offenders, the equitable application of the ICAOS to the states, and the uniform application of the rules.

Rule(s): Opinion #: Date Issued: Requested By:	2.106 Legal Opinion 06.30.04 Florida	Clarification as to the eligibility for transfer of supervision of an offender subject to “deferred sentences” pursuant to Section 2.106 of the amended rule adopted by the ICAOS at its special meeting for the Commission on March 12, 2004.	In determining the eligibility of an offender and the application of the ICAOS, one must look not at the legal definitions but rather the legal action taken by a court of competent jurisdiction or paroling authorities.

Rule(s): Opinion #: Date Issued: Requested By:	2.110, 3.102, & 4-106 (Note: Transition Rule) 3-2004 04.15.04 Utah	Issuing travel permits to the Receiving state during the investigation period.	Once an application has been made under the Compact an offender may not travel to the Receiving State without the Receiving State’s permission.