REPORT TITLE:
Abuse Family/Household Member


DESCRIPTION:
Creates 3 classifications of offense of abuse of family or
household member:  class C felony, misdemeanor, and petty
misdemeanor.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
THE SENATE                              S.B. NO.           2153
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO ABUSE OF FAMILY OR HOUSEHOLD MEMBERS.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  Chapter 709, Hawaii Revised Statutes, is amended
 
 2 by adding a new part to be appropriately designated and to read
 
 3 as follows:
 
 4           "PART  .  ABUSE OF FAMILY OR HOUSEHOLD MEMBER
 
 5      §709-A  Definition.  For the purposes of this part:
 
 6      "Dangerous instrument" has the same meaning as provided in
 
 7 section 707-700.
 
 8      "Family or household member" means spouses or reciprocal
 
 9 beneficiaries, former spouses or reciprocal beneficiaries,
 
10 persons who have a child in common, parents, children, persons
 
11 related by consanguinity, and persons jointly residing or
 
12 formerly residing in the same dwelling unit.
 
13      "Serious bodily injury" and "substantial bodily injury" have
 
14 the same meanings as provided in section 707-700.
 
15      "Terroristic threatening" has the same meaning as provided
 
16 in section 707-715(1).
 
17      §709-B  Abuse of family or household member in the first
 
18 degree.(1)  A person commits the offense of abuse of family or
 
19 household member in the first degree if:
 

 
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                                     S.B. NO.           2153
                                                        
                                                        

 
 1      (a)  The person:
 
 2           (i)  Intentionally or knowingly causes substantial
 
 3                bodily injury;
 
 4          (ii)  Recklessly causes serious bodily injury; or
 
 5         (iii)  Intentionally or knowingly causes bodily injury,
 
 6                with a dangerous instrument,
 
 7           to a family or household member;
 
 8      (b)  The person commits terroristic threatening by
 
 9           threatening a family or household member:
 
10           (i)  By word or conduct on more than one occasion for
 
11                the same or a similar purpose; or
 
12          (ii)  Using a dangerous instrument; or
 
13      (c)  The person commits an offense of abuse of family or
 
14           household member in the second degree subsequent to
 
15           having any combination of two or more prior
 
16           convictions, in this State or any other state or
 
17           federal jurisdiction, that are comparable to:
 
18           (i)  An offense of abuse of family or household member
 
19                in the first degree under this section;
 
20          (ii)  An offense of abuse of family or household member
 
21                in the second degree under section 709-C; or
 
22         (iii)  An offense of abuse of family or household member
 
23                under section 709-906 as it was in effect on
 

 
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                                     S.B. NO.           2153
                                                        
                                                        

 
 1                June 30, 2000.
 
 2      (2)  Abuse of family or household member in the first degree
 
 3 is a class C felony.
 
 4      (3)  Any person violating this section shall be sentenced to
 
 5 a mandatory minimum jail term of ninety days.
 
 6      (4)  Upon conviction and sentencing of the defendant, the
 
 7 court shall order that the defendant immediately be incarcerated
 
 8 to serve the mandatory minimum sentence imposed; provided that
 
 9 the defendant may be admitted to bail pending appeal pursuant to
 
10 chapter 804.  The court may stay the imposition of the sentence
 
11 if special circumstances exist.
 
12      §709-C  Abuse of family or household member in the second
 
13 degree.(1)  A person commits the offense of abuse of family or
 
14 household member in the second degree if:
 
15      (a)  The person:
 
16           (i)  Intentionally, knowingly, or recklessly causes
 
17                bodily injury to a family or household member; or
 
18          (ii)  Negligently causes bodily injury, with a dangerous
 
19                instrument, to a family or household member;
 
20      (b)  The person commits terroristic threatening by
 
21           threatening a family or household member other than as
 
22           provided under section 709-B(1)(b); or
 
23      (c)  The person, with intent to harass, annoy, or alarm a
 

 
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                                     S.B. NO.           2153
                                                        
                                                        

 
 1           family or household member, or in reckless disregard of
 
 2           the risk thereof, pursues or conducts surveillance upon
 
 3           the family or household member:
 
 4           (i)  Without legitimate purpose;
 
 5          (ii)  On more than one occasion for the same or a
 
 6                similar purpose; and
 
 7         (iii)  Under circumstances that would cause the family or
 
 8                household member to reasonably believe the actor
 
 9                intends to cause either bodily injury to the
 
10                family or household member or another or damage to
 
11                the property of the family or household member or
 
12                another.
 
13      (2)  Except as provided in section 709-B(1)(c), abuse of
 
14 family or household member in the second degree is a misdemeanor.
 
15      (3)  Any person violating this section shall be sentenced as
 
16 follows:
 
17      (a)  For the first offense the person shall serve a minimum
 
18           jail term of forty-eight hours; and
 
19      (b)  For a second offense, the person shall serve a minimum
 
20           jail term of thirty days.
 
21      (4)  Upon conviction and sentencing of the defendant, the
 
22 court shall order that the defendant immediately be incarcerated
 
23 to serve the mandatory minimum sentence imposed; provided that
 

 
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                                     S.B. NO.           2153
                                                        
                                                        

 
 1 the defendant may be admitted to bail pending appeal pursuant to
 
 2 chapter 804.  The court may stay the imposition of the sentence
 
 3 if special circumstances exist.
 
 4      §709-D  Abuse of family or household member in the third
 
 5 degree.(1)  A person commits the offense of abuse of family or
 
 6 household member in the third degree if the person:
 
 7      (a)  With intent to harass, annoy, or alarm a family or
 
 8           household member:
 
 9           (i)  Strikes, shoves, kicks, or otherwise touches the
 
10                family or household member in an offensive manner
 
11                or subjects the family or household member to
 
12                offensive physical contact;
 
13          (ii)  Insults, taunts, or challenges a family or
 
14                household member in a manner likely to provoke an
 
15                immediate violent response or that would cause the
 
16                family or household member to reasonably believe
 
17                that the actor intends to cause either bodily
 
18                injury to the family or household member or
 
19                another or damage to the property of the family or
 
20                household member or another;
 
21         (iii)  Repeatedly makes telephone calls, facsimile, or
 
22                electronic mail transmissions to a family or
 
23                household member without purpose of legitimate
 

 
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                                     S.B. NO.           2153
                                                        
                                                        

 
 1                communication;
 
 2          (iv)  Repeatedly makes a communication to a family or
 
 3                household member anonymously or at an extremely
 
 4                inconvenient hour;
 
 5           (v)  Repeatedly makes communications, after being
 
 6                advised by the family or household member to whom
 
 7                the communication is directed that further
 
 8                communication is unwelcome; or
 
 9          (vi)  Makes a communication to a family or household
 
10                member using offensively coarse language that
 
11                would cause the family or household member to
 
12                reasonably believe that the actor intends to cause
 
13                either bodily injury to the family or household
 
14                member or another or damage to the property of the
 
15                family or household member or another;
 
16      (b)  With the intent to cause substantial harm or serious
 
17           inconvenience to a family or household member or in
 
18           reckless disregard of the risk of substantial harm or
 
19           serious inconvenience, engages in fighting or in
 
20           threatening, violent, or tumultuous behavior toward a
 
21           family or household member; or
 
22      (c)  With intent to harass, annoy, or alarm a family or
 
23           household member, or in reckless disregard of the risk
 

 
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                                     S.B. NO.           2153
                                                        
                                                        

 
 1           thereof, pursues or conducts surveillance upon the
 
 2           family or household member:
 
 3           (i)  Without legitimate purpose; and
 
 4          (ii)  Under circumstances that would cause the family or
 
 5                household member to reasonably believe the actor
 
 6                intends to cause either bodily injury to the
 
 7                family or household member or another or damage to
 
 8                the property of the family or household member or
 
 9                another.
 
10      (2)  Abuse of family or household member in the third degree
 
11 is a petty misdemeanor.
 
12      §709-E  Authorized actions of law enforcement officers with
 
13 respect to abuse of family or household member.(1)  Any police
 
14 officer, with or without a warrant, may arrest a person if the
 
15 officer has reasonable grounds to believe that the person is
 
16 abusing, or has abused, a family or household member and that the
 
17 person arrested is guilty of an offense of abuse of a family or
 
18 household member under this part.
 
19      (2)  The police, in investigating any complaint of abuse of
 
20 a family or household member, upon request, may transport the
 
21 abused person to a hospital or safe shelter.
 
22      (3)  Any police officer who has reasonable grounds to
 
23 believe either that abuse has been inflicted by one person upon a
 

 
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                                     S.B. NO.           2153
                                                        
                                                        

 
 1 family or household member, regardless of whether the abuse
 
 2 occurred in the officer's presence, or that abuse may be imminent
 
 3 may take the following further course of action, with or without
 
 4 a warrant:
 
 5      (a)  The police officer may make reasonable inquiry of the
 
 6           family or household member upon whom the officer
 
 7           believes abuse either has been inflicted or may be
 
 8           imminent;
 
 9      (b)  The police officer may make reasonable inquiry of any
 
10           other witnesses that may be present;
 
11      (c)  If the police officer has reasonable grounds to believe
 
12           that there is probable danger of imminent abuse being
 
13           inflicted by one person upon a family or household
 
14           member, the police officer lawfully may order the
 
15           person to leave the premises for a period of separation
 
16           of twenty-four hours, during which time the person
 
17           shall not initiate any contact, either by telephone or
 
18           in person, with the family or household member;
 
19           provided that the person is allowed to enter the
 
20           premises with police escort to collect any necessary
 
21           personal effects;
 
22      (d)  Where the police officer makes the finding referred to
 
23           in paragraph (c) and the incident occurs after 12:00
 

 
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                                     S.B. NO.           2153
                                                        
                                                        

 
 1           p.m. on any Friday or on any Saturday, Sunday, or legal
 
 2           holiday, the order to leave the premises and to
 
 3           initiate no further contact shall commence immediately
 
 4           and be in full force, but the twenty-four hour period
 
 5           shall be enlarged and extended until 4:30 p.m. on the
 
 6           first day following the weekend or legal holiday;
 
 7      (e)  The police officer shall give a written warning
 
 8           citation to any person ordered to leave premises
 
 9           pursuant to this section.  The written warning citation
 
10           shall state the date, time, and location of the warning
 
11           and the penalties for violating the warning.  The
 
12           police officer shall retain a copy of the warning
 
13           citation and attach it to the written report required
 
14           to be submitted in all cases.  The police officer shall
 
15           give a third copy of the warning citation to the
 
16           remaining family or household member;
 
17      (f)  If the person ordered to leave the premises refuses to
 
18           comply with the order or returns to the premises before
 
19           the expiration of the period of separation, or if the
 
20           person so ordered initiates any contact with the
 
21           remaining family or household member, the person shall
 
22           be placed under arrest for the purpose of preventing
 
23           abuse to the family or household member; and
 

 
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                                     S.B. NO.           2153
                                                        
                                                        

 
 1      (g)  The police officer may seize all firearms and
 
 2           ammunition that the police officer has reasonable
 
 3           grounds to believe were used or threatened to be used
 
 4           in the commission of an offense under this part.
 
 5      §709-F  Violation of a lawful order to leave the premises,
 
 6 penalty.(1)  Any violation of or refusal to comply with the
 
 7 lawful order of a police officer to leave the premises under
 
 8 section 709-E(3) is a misdemeanor.
 
 9      (2)  Any person violating this section shall be sentenced as
 
10 follows:
 
11      (a)  For the first offense the person shall serve a minimum
 
12           jail sentence of forty-eight hours; and
 
13      (b)  For a second offense and any other subsequent offense
 
14           that occurs within three years of the previous offense,
 
15           the person shall be termed a "repeat offender" and
 
16           serve a minimum jail sentence of thirty days.
 
17      (3)  Upon conviction and sentencing of the defendant, the
 
18 court shall order that the defendant immediately be incarcerated
 
19 to serve the mandatory minimum sentence imposed; provided that
 
20 the defendant may be admitted to bail pending appeal pursuant to
 
21 chapter 804.  The court may stay the imposition of the sentence
 
22 if special circumstances exist.
 
23      §709-G  Mandatory domestic violence intervention programs.
 

 
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                                     S.B. NO.           2153
                                                        
                                                        

 
 1 (1)  Whenever a court sentences a person pursuant to this part,
 
 2 it also shall require that the offender undergo any available
 
 3 domestic violence intervention programs ordered by the court.
 
 4 However, the court may suspend any portion of a jail sentence,
 
 5 except for any mandatory sentences, upon the condition that the
 
 6 defendant remains arrest-free and conviction-free and complete
 
 7 court-ordered intervention.
 
 8      (2)  When a person is ordered by the court to undergo any
 
 9 domestic violence intervention, that person shall provide
 
10 adequate proof of compliance with the court's order.  The court
 
11 shall order a subsequent hearing at which the person is required
 
12 to make an appearance, on a date certain, to determine whether
 
13 the person has completed the ordered domestic violence
 
14 intervention; provided that the court may waive the subsequent
 
15 hearing and appearance if a court officer has established that
 
16 the person has completed the intervention ordered by the court.
 
17      §709-H  Right of victim of abuse of family or household
 
18 member; assistance of prosecuting attorney.(1)  A family or
 
19 household member who has been abused by another person may
 
20 petition the family court, with the assistance of the prosecuting
 
21 attorney of the applicable county, for a penal summons or arrest
 
22 warrant to issue forthwith or may file a criminal complaint
 
23 through the prosecuting attorney of the applicable county.  In
 

 
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                                     S.B. NO.           2153
                                                        
                                                        

 
 1 such instance, the respondent shall be taken into custody and
 
 2 brought before the family court at the first possible
 
 3 opportunity.  The court may dismiss the petition or hold the
 
 4 respondent in custody, subject to bail.  If the petition is not
 
 5 dismissed, a hearing shall be set.
 
 6      (2)  It shall be the duty of the prosecuting attorney of the
 
 7 applicable county to assist any family or household member under
 
 8 this part in the preparation of the penal summons or arrest
 
 9 warrant.
 
10      (3)  This part shall not preclude the abused family or
 
11 household member from pursuing any other remedy under law or in
 
12 equity.
 
13      §709-I  Good faith immunity.  Any police officer who arrests
 
14 a person pursuant to this part shall not be subject to any civil
 
15 or criminal liability; provided that the police officer acts in
 
16 good faith, upon reasonable belief, and does not exercise
 
17 unreasonable force in effecting the arrest.
 
18      §709-J  Interpretation.  This part shall not operate as a
 
19 bar against prosecution under any other section of this Code in
 
20 lieu of prosecution for abuse of a family or household member
 
21 under this part.
 
22      SECTION 2.  Chapter 706, Hawaii Revised Statutes, is amended
 
23 by adding a new section to be appropriately designated and to
 

 
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                                     S.B. NO.           2153
                                                        
                                                        

 
 1 read as follows:
 
 2      "§706-    Enhanced sentencing for felony offenses against a
 
 3 family or household member.  (1)  Whenever a person is convicted
 
 4 of a felony offense under chapter 707 or section 708-820, 708-
 
 5 821, or 709-B and the trier of fact has made a determination that
 
 6 the offense involves a family or household member as defined in
 
 7 section 709-A, the court shall sentence the person to a mandatory
 
 8 minimum term of imprisonment of ninety days.  Nothing in this
 
 9 section shall be construed to prevent a court from imposing a
 
10 longer term of imprisonment otherwise authorized by law.
 
11      (2)  Whenever a court sentences a person pursuant to this
 
12 section, it also shall require that the person undergo any
 
13 available domestic violence intervention programs ordered by the
 
14 court.  However, the court may suspend any portion of a jail
 
15 sentence, except for any mandatory sentences, upon the condition
 
16 that the person remains arrest-free and conviction-free and
 
17 complete court-ordered intervention.
 
18      (3)  When a person is ordered by the court to undergo any
 
19 domestic violence intervention, that person shall provide
 
20 adequate proof of compliance with the court's order.  The court
 
21 shall order a subsequent hearing at which the person is required
 
22 to make an appearance, on a date certain, to determine whether
 
23 the person has completed the ordered domestic violence
 

 
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                                     S.B. NO.           2153
                                                        
                                                        

 
 1 intervention; provided that the court may waive the subsequent
 
 2 hearing and appearance if a court officer has established that
 
 3 the person has completed the intervention ordered by the court."
 
 4      SECTION 3.  Section 706-606.5, Hawaii Revised Statutes, is
 
 5 amended by amending subsection (1) to read as follows:
 
 6      "(1)  Notwithstanding section 706-669 and any other law to
 
 7 the contrary, any person convicted of murder in the second
 
 8 degree, any class A felony, any class B felony, or any of the
 
 9 following class C felonies:  section 188-23 relating to
 
10 possession or use of explosives, electrofishing devices, and
 
11 poisonous substances in state waters; section 707-703 relating to
 
12 negligent homicide in the first degree; 707-711 relating to
 
13 assault in the second degree; 707-713 relating to reckless
 
14 endangering in the first degree; 707-716 relating to terroristic
 
15 threatening in the first degree; 707-721 relating to unlawful
 
16 imprisonment in the first degree; 707-732 relating to sexual
 
17 assault or rape in the third degree; 707-735 relating to sodomy
 
18 in the third degree; 707-736 relating to sexual abuse in the
 
19 first degree; 707-751 relating to promoting child abuse in the
 
20 second degree; 707-766 relating to extortion in the second
 
21 degree; 708-811 relating to burglary in the second degree;
 
22 708-821 relating to criminal property damage in the second
 
23 degree; 708-831 relating to theft in the first degree as amended
 

 
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                                     S.B. NO.           2153
                                                        
                                                        

 
 1 by Act 68, Session Laws of Hawaii 1981; 708-831 relating to theft
 
 2 in the second degree; 708-835.5 relating to theft of livestock;
 
 3 708-836 relating to unauthorized control of propelled vehicle;
 
 4 708-852 relating to forgery in the second degree; 708-854
 
 5 relating to criminal possession of a forgery device; 708-875
 
 6 relating to trademark counterfeiting; section 709-B relating to
 
 7 abuse of family or household member in the first degree; 710-1071
 
 8 relating to intimidating a witness; 711-1103 relating to riot;
 
 9 712-1203 relating to promoting prostitution in the second degree;
 
10 712-1221 relating to gambling in the first degree; 712-1224
 
11 relating to possession of gambling records in the first degree;
 
12 712-1243 relating to promoting a dangerous drug in the third
 
13 degree; 712-1247 relating to promoting a detrimental drug in the
 
14 first degree; 134-7 relating to ownership or possession of
 
15 firearms or ammunition by persons convicted of certain crimes;
 
16 134-8 relating to ownership, etc., of prohibited weapons; 134-9
 
17 relating to permits to carry, or who is convicted of attempting
 
18 to commit murder in the second degree, any class A felony, any
 
19 class B felony, or any of the class C felony offenses enumerated
 
20 above and who has a prior conviction or prior convictions for the
 
21 following felonies, including an attempt to commit the same:
 
22 murder, murder in the first or second degree, a class A felony, a
 
23 class B felony, any of the class C felony offenses enumerated
 

 
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                                     S.B. NO.           2153
                                                        
                                                        

 
 1 above, or any felony conviction of another jurisdiction shall be
 
 2 sentenced to a mandatory minimum period of imprisonment without
 
 3 possibility of parole during such period as follows:
 
 4      (a)  One prior felony conviction:
 
 5           (i)  Where the instant conviction is for murder in the
 
 6                second degree or attempted murder in the second
 
 7                degree--ten years;
 
 8          (ii)  Where the instant conviction is for a class A
 
 9                felony--six years, eight months;
 
10         (iii)  Where the instant conviction is for a class B
 
11                felony--three years, four months;
 
12          (iv)  Where the instant conviction is for a class C
 
13                felony offense enumerated above--one year, eight
 
14                months;
 
15      (b)  Two prior felony convictions:
 
16           (i)  Where the instant conviction is for murder in the
 
17                second degree or attempted murder in the second
 
18                degree--twenty years;
 
19          (ii)  Where the instant conviction is for a class A
 
20                felony--thirteen years, four months;
 
21         (iii)  Where the instant conviction is for a class B
 
22                felony--six years, eight months;
 
23          (iv)  Where the instant conviction is for a class C
 

 
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                                     S.B. NO.           2153
                                                        
                                                        

 
 1                felony offense enumerated above--three years, four
 
 2                months;
 
 3      (c)  Three or more prior felony convictions:
 
 4           (i)  Where the instant conviction is for murder in the
 
 5                second degree or attempted murder in the second
 
 6                degree--thirty years;
 
 7          (ii)  Where the instant conviction is for a class A
 
 8                felony--twenty years;
 
 9         (iii)  Where the instant conviction is for a class B
 
10                felony--ten years;
 
11          (iv)  Where the instant conviction is for a class C
 
12                felony offense enumerated above--five years."
 
13      SECTION 4.  Section 709-906, Hawaii Revised Statutes, is
 
14 repealed.
 
15      ["§709-906  Abuse of family or household members; penalty.
 
16 (1)  It shall be unlawful for any person, singly or in concert,
 
17 to physically abuse a family or household member or to refuse
 
18 compliance with the lawful order of a police officer under
 
19 subsection (4).  The police, in investigating any complaint of
 
20 abuse of a family or household member, upon request, may
 
21 transport the abused person to a hospital or safe shelter.
 
22      For the purposes of this section, "family or household
 
23 member" means spouses or reciprocal beneficiaries, former spouses
 

 
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                                     S.B. NO.           2153
                                                        
                                                        

 
 1 or reciprocal beneficiaries, persons who have a child in common,
 
 2 parents, children, persons related by consanguinity, and persons
 
 3 jointly residing or formerly residing in the same dwelling unit.
 
 4      (2)  Any police officer, with or without a warrant, may
 
 5 arrest a person if the officer has reasonable grounds to believe
 
 6 that the person is physically abusing, or has physically abused,
 
 7 a family or household member and that the person arrested is
 
 8 guilty thereof.
 
 9      (3)  A police officer who has reasonable grounds to believe
 
10 that the person is physically abusing, or has physically abused,
 
11 a family or household member shall prepare a written report.
 
12      (4)  Any police officer, with or without a warrant, may take
 
13 the following course of action where the officer has reasonable
 
14 grounds to believe that there was physical abuse or harm
 
15 inflicted by one person upon a family or household member,
 
16 regardless of whether the physical abuse or harm occurred in the
 
17 officer's presence:
 
18      (a)  The police officer may make reasonable inquiry of the
 
19           family or household member upon whom the officer
 
20           believes physical abuse or harm has been inflicted and
 
21           other witnesses as there may be;
 
22      (b)  Where the police officer has reasonable grounds to
 
23           believe that there is probable danger of further
 

 
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                                     S.B. NO.           2153
                                                        
                                                        

 
 1           physical abuse or harm being inflicted by one person
 
 2           upon a family or household member, the police officer
 
 3           lawfully may order the person to leave the premises for
 
 4           a period of separation of twenty-four hours, during
 
 5           which time the person shall not initiate any contact,
 
 6           either by telephone or in person, with the family or
 
 7           household member; provided that the person is allowed
 
 8           to enter the premises with police escort to collect any
 
 9           necessary personal effects;
 
10      (c)  Where the police officer makes the finding referred to
 
11           in paragraph (b) and the incident occurs after 12:00
 
12           p.m. on any Friday, or on any Saturday, Sunday, or
 
13           legal holiday, the order to leave the premises and to
 
14           initiate no further contact shall commence immediately
 
15           and be in full force, but the twenty-four hour period
 
16           shall be enlarged and extended until 4:30 p.m. on the
 
17           first day following the weekend or legal holiday;
 
18      (d)  All persons who are ordered to leave as stated above
 
19           shall be given a written warning citation stating the
 
20           date, time, and location of the warning and stating the
 
21           penalties for violating the warning.  A copy of the
 
22           warning citation shall be retained by the police
 
23           officer and attached to a written report which shall be
 

 
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                                     S.B. NO.           2153
                                                        
                                                        

 
 1           submitted in all cases.  A third copy of the warning
 
 2           citation shall be given to the abused person;
 
 3      (e)  If the person so ordered refuses to comply with the
 
 4           order to leave the premises or returns to the premises
 
 5           before the expiration of the period of separation, or
 
 6           if the person so ordered initiates any contact with the
 
 7           abused person, the person shall be placed under arrest
 
 8           for the purpose of preventing further physical abuse or
 
 9           harm to the family or household member; and
 
10      (f)  The police officer may seize all firearms and
 
11           ammunition that the police officer has reasonable
 
12           grounds to believe were used or threatened to be used
 
13           in the commission of an offense under this section.
 
14      (5)  Abuse of a family or household member and refusal to
 
15 comply with the lawful order of a police officer under subsection
 
16 (4) are misdemeanors and the person shall be sentenced as
 
17 follows:
 
18      (a)  For the first offense the person shall serve a minimum
 
19           jail sentence of forty-eight hours; and
 
20      (b)  For a second offense and any other subsequent offense
 
21           that occurs within one year of the previous offense,
 
22           the person shall be termed a "repeat offender" and
 
23           serve a minimum jail sentence of thirty days.
 

 
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                                     S.B. NO.           2153
                                                        
                                                        

 
 1 Upon conviction and sentencing of the defendant, the court shall
 
 2 order that the defendant immediately be incarcerated to serve the
 
 3 mandatory minimum sentence imposed; provided that the defendant
 
 4 may be admitted to bail pending appeal pursuant to chapter 804.
 
 5 The court may stay the imposition of the sentence if special
 
 6 circumstances exist.
 
 7      (6)  Whenever a court sentences a person pursuant to
 
 8 subsection (5), it also shall require that the offender undergo
 
 9 any available domestic violence intervention programs ordered by
 
10 the court.  However, the court may suspend any portion of a jail
 
11 sentence, except for the mandatory sentences under subsection
 
12 (5)(a) and (b), upon the condition that the defendant remain
 
13 arrest-free and conviction-free or complete court-ordered
 
14 intervention.
 
15      (7)  For any subsequent offense occurring within two years
 
16 after a second misdemeanor conviction, the person shall be
 
17 charged with a class C felony.
 
18      (8)  Any police officer who arrests a person pursuant to
 
19 this section shall not be subject to any civil or criminal
 
20 liability; provided that the police officer acts in good faith,
 
21 upon reasonable belief, and does not exercise unreasonable force
 
22 in effecting the arrest.
 
23      (9)  The family or household member who has been physically
 

 
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                                     S.B. NO.           2153
                                                        
                                                        

 
 1 abused or harmed by another person may petition the family court,
 
 2 with the assistance of the prosecuting attorney of the applicable
 
 3 county, for a penal summons or arrest warrant to issue forthwith
 
 4 or may file a criminal complaint through the prosecuting attorney
 
 5 of the applicable county.
 
 6      (10)  The respondent shall be taken into custody and brought
 
 7 before the family court at the first possible opportunity.  The
 
 8 court may dismiss the petition or hold the respondent in custody,
 
 9 subject to bail.  Where the petition is not dismissed, a hearing
 
10 shall be set.
 
11      (11) This section shall not operate as a bar against
 
12 prosecution under any other section of this Code in lieu of
 
13 prosecution for abuse of a family or household member.
 
14      (12)  It shall be the duty of the prosecuting attorney of
 
15 the applicable county to assist any victim under this section in
 
16 the preparation of the penal summons or arrest warrant.
 
17      (13)  This section shall not preclude the physically abused
 
18 or harmed family or household member from pursuing any other
 
19 remedy under law or in equity.
 
20      (14)  When a person is ordered by the court to undergo any
 
21 domestic violence intervention, that person shall provide
 
22 adequate proof of compliance with the court's order.  The court
 
23 shall order a subsequent hearing at which the person is required
 

 
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                                     S.B. NO.           2153
                                                        
                                                        

 
 1 to make an appearance, on a date certain, to determine whether
 
 2 the person has completed the ordered domestic violence
 
 3 intervention.  The court may waive the subsequent hearing and
 
 4 appearance where a court officer has established that the person
 
 5 has completed the intervention ordered by the court."]
 
 6      SECTION 5.  This Act does not affect rights and duties that
 
 7 matured, penalties that were incurred, and proceedings that were
 
 8 begun, before its effective date.
 
 9      SECTION 6.  Statutory material to be repealed is bracketed.
 
10 New statutory material is underscored.
 
11      SECTION 7.  This Act shall take effect on July 1, 2000. 
 
12 
 
13                           INTRODUCED BY:_________________________