HB3379

SECTION 1. The legislature finds that domestic violence continues to be a major concern in our communities. The purpose of this Act is to amend various sections relating to abuse of a family or household member to separate and clarify felony and misdemeanor level abuse provisions and to prohibit and classify family and household member harassment cases for what they truly are: incidents of domestic violence.

This Act repeals section 709-906, Hawaii Revised Statutes, and substantially reenacts it by separating out the procedural provisions from the criminal offenses. The legislature intends all case law construing the existing section 709-906, Hawaii Revised Statutes, to remain applicable to the new provisions. The legislature also intends that cases arising from offenses committed before the repeal of section 709-906, Hawaii Revised Statutes, but charged or tried thereafter, shall not be terminated by the repeal because the new sections 709-C and 709‑D, Hawaii Revised Statutes created by this Act substantially reenact the provisions of section 709-906, Hawaii Revised Statutes, and are not ameliorative.

SECTION 2. Chapter 709, Hawaii Revised Statutes, is amended by designating sections 709-900 through 709-908 as part I, entitled:

"PART I. GENERAL PROVISIONS"

SECTION 3. Chapter 709, Hawaii Revised Statutes, is amended by adding a new part to read as follows:

"PART II. DOMESTIC VIOLENCE

§709-A Definitions. For the purposes of this part, "family or household member" means spouses or reciprocal beneficiaries, former spouses or reciprocal beneficiaries, persons who have a child in common, parents, children, persons related by consanguinity, and persons jointly residing or formerly residing in the same dwelling unit.

§709-B Special procedures for abuse of family or household members complaints. (1) Upon request, the police investigating any complaint of abuse of a family or household member may transport the abused person to a hospital or safe shelter.

(2) Any police officer, with or without a warrant, may arrest a person if the officer has probable cause to believe that the person is physically abusing, or has physically abused, a family or household member.

(3) A police officer who has reasonable grounds to believe that the person is physically abusing, or has physically abused, a family or household member shall prepare a written report.

(4) Any police officer, with or without a warrant, may take the following course of action where the officer has reasonable grounds to believe that physical abuse or harm was inflicted upon a family or household member, regardless of whether the physical abuse or harm occurred in the officer's presence:

(a) The police officer may make reasonable inquiry of the family or household member upon whom the officer believes physical abuse or harm has been inflicted and of other witnesses as there may be;

(b) Where the police officer has reasonable grounds to believe that there is probable danger of further physical abuse or harm being inflicted by a person upon a family or household member, the police officer lawfully may order the person to leave the premises for a period of separation of twenty-four hours, during which time the person shall not initiate any contact, either by telephone or in person, with the family or household member; provided that the person is allowed to enter the premises with police escort to collect any necessary personal effects;

(c) Where the police officer makes a finding of a danger of physical abuse or harm under paragraph (b) and the incident occurs after 12:00 p.m. on any Friday, or on any Saturday, Sunday, or legal holiday, the order to leave the premises and to initiate no further contact shall commence immediately and be in full force, but the twenty-four hour period shall be enlarged and extended until 4:30 p.m. on the first day following the weekend or legal holiday;

(d) All persons who are ordered to leave as provided in paragraph (b) shall be given a written warning, stating the date, time, and location of the warning and stating the penalties for violating the warning. A copy of the warning shall be retained by the police officer and attached to the written report which shall be submitted in all cases. A third copy of the warning citation shall be given to the abused person;

(e) If the person ordered to leave under paragraph (b) refuses to comply with the order or returns to the premises before the expiration of the period of separation, or if the person initiates any contact with the abused person during the period of separation, the person shall be placed under arrest for the purpose of preventing further physical abuse or harm to the family or household member; and

(f) The police officer may seize all firearms and ammunition that the police officer has probable cause to believe were used or threatened to be used in the commission of an offense under this section.

(5) In the event that a police officer investigating a complaint of domestic disturbance or abuse of family or household member does not believe that the person in question inflicted physical abuse or harm upon a family or household member, but has reasonable grounds to believe, based upon factors including property damage committed, threats made, or a known history of physical abuse or harm committed by the person, there is an immediate risk that the person will inflict physical abuse or harm upon a family or household member, the police officer:

(a) May order the person to leave the premises and issue a written warning as provided in subsection (4)(b), (c), and (d); and

(b) Shall prepare a written report if an order to leave is issued.

(6) Any police officer who arrests a person pursuant to this part shall not be subject to any civil or criminal liability therefor; provided that the police officer acts in good faith, upon reasonable belief, and does not exercise unreasonable force in effecting the arrest.

(7) The family or household member who has been physically abused or harmed by another person may petition the court, with the assistance of the prosecuting attorney of the applicable county, for a penal summons or arrest warrant to issue forthwith or may file a criminal complaint through the prosecuting attorney of the applicable county.

(8) The person shall be taken into custody and brought before the court at the first possible opportunity. The court may dismiss the petition or hold the person in custody, subject to bail. Where the petition is not dismissed, a hearing shall be set.

(9) It shall be the duty of the prosecuting attorney of the applicable county to assist a victim of an offense under this part in the preparation of the penal summons or arrest warrant.

(10) This part shall not operate as a bar against prosecution under any other section of the penal code in lieu of prosecution for abuse of a family or household member.

(11) This part shall not preclude the physically abused or harmed family or household member from pursuing any other remedy under law or in equity.

(12) When a person is ordered by the court to undergo any domestic violence intervention, that person shall provide adequate proof of compliance with the court's order. The court shall order a subsequent hearing at which the person is required to make an appearance, on a date certain, to determine whether the person has completed the ordered domestic violence intervention. The court may waive the subsequent hearing and appearance where a court officer has established that the person has completed the intervention approved by the court.

§709-C Abuse of a family or household member in the first degree; penalty. (1) A person commits the offense of abuse of a family or household member in the first degree if the person:

(a) Intentionally, knowingly, or recklessly physically abuses a family or household member, and the person has two or more convictions under this section or section 709-906, 709-D, or 709-E, in any combination, and the instant offense is committed within two years of the most recent conviction;

(b) Intentionally, knowingly, or recklessly violates an order to leave issued to the person by a police officer pursuant to section 709-B, and the person has two or more convictions under this section or section 709-906, 709-D, or 709-E, in any combination, and the instant offense is committed within two years of the most recent conviction;

(c) Intentionally, knowingly, or recklessly physically abuses a family or household member by impeding the normal circulation of the blood of the family or household member by applying pressure on the throat or the neck, or by impeding the normal breathing of the family or household member by any means.

(2) Abuse of a family or household member in the first degree is a class C felony. The court, at a minimum, shall sentence the person who has been convicted of this offense to:

(a) An indeterminate term of imprisonment of five years, pursuant to section 706-660; or

(b) A term of probation of five years, with conditions to include a term of imprisonment of not less than thirty days, without possibility of suspension of sentence, and successful completion of a domestic violence intervention program.

(3) Upon conviction and sentencing of the defendant, the court shall order that the defendant immediately be incarcerated to serve the mandatory minimum sentence imposed; provided that the defendant may be admitted to bail pending appeal pursuant to chapter 804.

§709-D Abuse of a family or household member in the second degree; penalty. (1) A person commits the offense of abuse of a family or household member in the second degree if the person:

(a) Intentionally, knowingly, or recklessly physically abuses a family or household member; or

(b) Intentionally, knowingly, or recklessly violates an order to leave issued to the person by a police officer pursuant to section 709-B.

(2) Abuse of a family or household member in the second degree is a misdemeanor and the person shall be sentenced as follows:

(a) For a first offense, the person shall serve a minimum jail sentence of forty-eight hours; and

(b) For an offense that occurs within five years of a previous conviction for abuse of a family or household member in any degree, the person shall be termed a "repeat offender" and serve a minimum jail sentence of thirty days.

(4) Whenever a court sentences a person for abuse of a family or household member in the second degree it also shall require the person to undergo any available domestic violence intervention programs approved by the court.

§709-E Abuse of a family or household member in the third degree; penalty. (1) A person commits the offense of abuse of a family or household member in the third degree if, with intent to harass, annoy, or alarm a family or household member, the person strikes, shoves, or kicks the family or household member in an offensive manner or subjects the family or household member to offensive physical contact.

(2) For purposes of this section, the State is not required to prove beyond a reasonable doubt that pain or injury actually occurred as a result of the striking, shoving, kicking, or offensive physical contact.

(3) Abuse of a family or household member in the third degree is a petty misdemeanor.

(4) Any person convicted of the offense of abuse of a family or household member in the third degree within five years of being convicted of a prior offense of abuse of a family or household member in any degree shall be sentenced to serve a minimum term of imprisonment of forty-eight hours.

(5) Whenever a court sentences a person for abuse of a family or household member in the third degree, it also shall require the person to undergo any available domestic violence intervention programs approved by the court."

SECTION 4. Section 134-11, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Sections 134-7 to 134-9 and 134-21 to 134-27, except section 134-7(f), shall not apply:

(1) To state and county law enforcement officers; provided that such persons are not convicted of an offense involving abuse of a family or household member under [~~section~~] sections 709-906[;], 709-C, 709-D, or 709-E;

(2) To members of the armed forces of the State and of the United States and mail carriers while in the performance of their respective duties if those duties require them to be armed;

(3) To regularly enrolled members of any organization duly authorized to purchase or receive the weapons from the United States or from the State; provided the members are either at, or going to or from, their places of assembly or target practice;

(4) To persons employed by the State, or subdivisions thereof, or the United States while in the performance of their respective duties or while going to and from their respective places of duty if those duties require them to be armed;

(5) To aliens employed by the State, or subdivisions thereof, or the United States while in the performance of their respective duties or while going to and from their respective places of duty if those duties require them to be armed; and

(6) To police officers on official assignment in Hawaii from any state which by compact permits police officers from Hawaii while on official assignment in that state to carry firearms without registration. The governor of the State or the governor's duly authorized representative may enter into compacts with other states to carry out this paragraph."

SECTION 5. Section 351-32, Hawaii Revised Statutes, is amended to read as follows:

"§351-32 Violent crimes. The crimes to which part III of this chapter applies are the following and no other:

(1) Murder in the first degree (section 707-701);

(2) Murder in the second degree (section 707-701.5);

(3) Manslaughter (section 707-702);

(4) Negligent homicide in the first degree (section 707-702.5);

(5) Negligent homicide in the second degree (section 707-703);

(6) Negligent injury in the first degree (section 707-705);

(7) Negligent injury in the second degree (section 707-706);

(8) Assault in the first degree (section 707-710);

(9) Assault in the second degree (section 707-711);

(10) Assault in the third degree (section 707-712);

(11) Kidnapping (section 707-720);

(12) Sexual assault in the first degree (section 707-730);

(13) Sexual assault in the second degree (section 707-731);

(14) Sexual assault in the third degree (section 707-732);

(15) Sexual assault in the fourth degree (section 707-733);

(16) Abuse of family [[]or[]] household member (section 709-906); [~~and~~]

(17) Abuse of a family or household member in the first degree (section 709-C);

(18) Abuse of a family or household member in the second degree (section 709-D);

(19) Abuse of a family or household member in the third degree (section 709-E); and

[~~(17)~~] (20) Terrorism, as defined in Title 18 United States Code section 2331."

SECTION 6. Section 571-14, Hawaii Revised Statutes, is amended by amending subsections (a), (b), and (c) to read as follows:

"(a) Except as provided in sections 603-21.5 and 604-8, the court shall have exclusive original jurisdiction:

(1) To try any offense committed against a child by the child's parent or guardian or by any other person having the child's legal or physical custody, and any violation of section 707-726, 707-727, 709-902, 709-903, 709-903.5, 709-904, 709-905, 709-906, 709-C, 709-D, 709-E, or 302A-1135, whether or not included in other provisions of this paragraph or paragraph (2);

(2) To try any adult charged with:

(A) Deserting, abandoning, or failing to provide support for any person in violation of law;

(B) An offense, other than a felony, against the person of the defendant's husband or wife;

(D) Any violation of an order issued by a family court judge.

In any case within paragraph (1) or (2), the court, in its discretion, may waive its jurisdiction over the offense charged;

(3) In all proceedings under chapter 580, and in all proceedings under chapter 584;

(4) In proceedings under chapter 575, the Uniform Desertion and Nonsupport Act, and under chapter 576B, the Uniform Interstate Family Support Act;

(5) For commitment of an adult alleged to be mentally defective or mentally ill;

(6) In all proceedings for support between parent and child or between husband and wife;

(7) In all proceedings for pre-trial detention or waiver of jurisdiction over an adult who was a child at the time of an alleged criminal act as provided in section 571-13 or 571-22;

(8) In all proceedings under chapter 586, Domestic Abuse Protective Orders; and

(9) For the protection of dependent adults under chapter 346, part X.

In any case within paragraph (3), (4), or (6), the attorney general, through the child support enforcement agency, may exercise concurrent jurisdiction as provided in chapter 576E.

(b) The court shall have concurrent jurisdiction with the district court over violations of sections 707-712, 707-717, 707-722, 708-822, 708-823, 710-1010.5, 711-1106, and 711-1106.5 when multiple offenses are charged through complaint or indictment and at least one offense is a violation of an order issued pursuant to chapter 586 or a violation of [~~section~~] section 709-906[.], 709-D, or 709-E.

(c) The court shall have concurrent jurisdiction with the circuit court over violations of [~~section 711-1106.4.~~] sections 709-C and 711-1106.4."

SECTION 7. Section 586-1, Hawaii Revised Statutes, is amended by amending the definition of "domestic abuse" to read as follows:

""Domestic abuse" means:

(1) Physical harm, bodily injury, assault, or the threat of imminent physical harm, bodily injury, or assault, extreme psychological abuse or malicious property damage between family or household members; or

(2) Any act which would constitute an offense under section 709-906, 709-C, 709-D, or 709-E, or under part V or VI of chapter 707 committed against a minor family or household member by an adult family or household member."

SECTION 8. Section 603-21.5, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) The several circuit courts shall have concurrent jurisdiction with the family court over:

(1) Any felony under section 571-14, violation of an order issued pursuant to chapter 586, or a violation of section 709-906, 709-C, or 709-D when multiple offenses are charged through complaint or indictment and at least one other offense is a criminal offense under subsection (a)(1);

(2) Any felony under section 571-14 when multiple offenses are charged through complaint or indictment and at least one other offense is a violation of an order issued pursuant to chapter 586, a violation of section 709-906, 709-C, or 709-D, or a misdemeanor under the jurisdiction of section 604-8;

(3) Any violation of section 711-1106.4; and

(4) Guardianships and related proceedings concerning incapacitated adults pursuant to article V of chapter 560. "

SECTION 9. Section 604-8, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) The district court shall have concurrent jurisdiction with the family court of any violation of an order issued pursuant to chapter 586 or any violation of section 709-906, 709-D, or 709-E when multiple offenses are charged and at least one other offense is a criminal offense within the jurisdiction of the district courts."

SECTION 10. Section 706-606.4, Hawaii Revised Statutes, is amended by amending subsection (2) to read as follows:

"(2) As used in this section:

"Family or household member" has the same meaning as defined in section [~~709-906.~~] 709-A.

"In the presence of a minor" means in the actual physical presence of a child or knowing that a child is present and may hear or see the offense.

"Offense" means a violation of section 707-710 (assault in the first degree), 707-711 (assault in the second degree), 707-730 (sexual assault in the first degree), 707-731 (sexual assault in the second degree), 707-732 (sexual assault in the third degree), or 709-906 (abuse of family or household members)[.], 709-C (abuse of a family or household member in the first degree, 709-D (abuse of a family or household member in the second degree, or 709-E (abuse of a family or household member in the third degree."

SECTION 11. Section 706-623, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) When the court has sentenced a defendant to be placed on probation, the period of probation shall be as follows, unless the court enters the reason therefor on the record and sentences the defendant to a shorter period of probation:

(a) Ten years upon conviction of a class A felony;

(b) Five years upon conviction of a class B or class C felony;

(c) One year upon conviction of a misdemeanor; except that upon a conviction under section 586-4, 586-11, [or] 709‑906, or 709-D, the court may sentence the defendant to a period of probation not exceeding two years; or

(d) Six months upon conviction of a petty misdemeanor; provided that up to one year may be imposed upon a finding of good cause[.] or upon a conviction under section 709-E.

The court, on application of a probation officer, on application of the defendant, or on its own motion, may discharge the defendant at any time. Prior to granting early discharge, the court shall afford the prosecuting attorney an opportunity to be heard. The terms of probation provided in this part, other than in this section, shall not apply to sentences of probation imposed under section 706-606.3."

SECTION 12. Section 806-73, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) A probation officer shall investigate any case referred to the probation officer for investigation by the court in which the probation officer is serving and report thereon to the court. The probation officer shall instruct each defendant placed on probation under the probation officer's supervision of the terms and conditions of the defendant's probation. The probation officer shall keep informed concerning the conduct and condition of the defendant and report thereon to the court, and shall use all suitable methods to aid the defendant and bring about an improvement in the defendant's conduct and condition. The probation officer shall keep these records and perform other duties as the court may direct. Upon written request, the victim, or the parent or guardian of a minor victim or incapacitated victim, of a defendant who has been placed on probation for an offense under [~~sections~~] section 580-10(d)(1), [[]586-4(e)[]], 586-11(a), [or] 709-906, 709-C, 709-D, or 709-E, may be notified by the defendant's probation officer when the probation officer has any information relating to the safety and welfare of the victim. No probation officer shall be subject to civil liability or criminal culpability for any disclosure or non-disclosure, under this section, if the probation officer acts in good faith and upon reasonable belief."

SECTION 13. Section 806-83, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Criminal charges may be instituted by written information for a felony when the charge is a class C felony under section 19-3.5 (voter fraud); section 128D-10 (knowing releases); section 132D-14(a)(1), (2)(A), and (3) (penalties for failure to comply with requirements of sections 132D-7, 132D‑10, and 132D-16); section 134-24 (place to keep unloaded firearms other than pistols and revolvers); section 134-7(a) and (b) (ownership or possession prohibited); section 134-8 (prohibited ownership); section 134-9 (licenses to carry); section 134-17(a) (relating to false information or evidence concerning psychiatric or criminal history); section 134-51 (deadly weapons); section 134-52 (switchblade knives); section 134-53 (butterfly knives); section 188-23 (possession or use of explosives, electrofishing devices, and poisonous substances in state waters prohibited); section 231-34 (attempt to evade or defeat tax); section 231-36 (false and fraudulent statements); section 245-37 (sale or purchase of packages of cigarettes without stamps); section 245-38 (vending unstamped cigarettes); section 245-51 (sale of export cigarettes prohibited); section 245-52 (alteration of packaging prohibited); section 291C-12.5 (accidents involving substantial bodily injury); section 291E‑61.5 (habitually operating a vehicle under the influence of an intoxicant); section 329-41 (prohibited acts B); section 329‑42 (prohibited acts C); section 329-43.5 (prohibited acts related to drug paraphernalia); section 329C-2 (manufacture, distribution, or possession with intent to distribute an imitation controlled substance to a person under eighteen years of age); section 346-34(d)(2) and (e) (fraud involving food stamps or coupons with a value exceeding $300); section 346-43.5 (medical assistance fraud); section 383-141 (falsely obtaining benefits); section 431:10C-307.7 (insurance fraud); section 482D-7 (violation of fineness standards and stamping requirements); section 485A-301 (registration of securities); section 485A-401 (registration of broker-dealers); section 485A-402 (registration of agents); section 485A-403 (registration of investment advisors); section 485A-404 (registration of investment advisor representatives); section 485A-405 (registration of federal covered investment advisors); section 485A-501 (general fraud); section 485A-502 (prohibited conduct in providing investment advice); section 707-703 (negligent homicide in the second degree); section 707‑705 (negligent injury in the first degree); section 707-711 (assault in the second degree); section 707-713 (reckless endangering in the first degree); section 707-721 (unlawful imprisonment in the first degree); section 707-726 (custodial interference in the first degree); section 707-757 (electronic enticement of a child in the second degree); section 707-766 (extortion in the second degree); section 708-811 (burglary in the second degree); section 708-821 (criminal property damage in the second degree); section 708-831 (theft in the second degree); section 708-833.5 (shoplifting); section 708-835.5 (theft of livestock); section 708-836 (unauthorized control of propelled vehicle); section 708-836.5 (unauthorized entry into motor vehicle); section 708-839.5 (theft of utility services); section 708-839.8 (identity theft in the third degree); section 708-852 (forgery in the second degree); section 708-854 (criminal possession of a forgery device); section 708-858 (suppressing a testamentary or recordable instrument); section 708-875 (trademark counterfeiting); section 708-891.5 (computer fraud in the second degree); section 708-892.5 (computer damage in the second degree); section 708-895.6 (unauthorized computer access in the second degree); section 708-8100 (fraudulent use of a credit card); section 708-8102 (theft/forgery of credit cards); section 708-8103 (credit card fraud by a provider of goods or services); section 708-8104 (possession of unauthorized credit card machinery or incomplete cards); section 708-8200 (cable television service fraud in the first degree); section 708-8202 (telecommunication service fraud in the first degree); section 709-903.5 (endangering the welfare of a minor in the first degree); section 709-906 (abuse of family or household members); section 709-C (abuse of family or household members in the first degree); section 710-1016.3 (obtaining a government-issued identification document under false pretenses in the first degree); section 710-1016.6 (impersonating a law enforcement officer in the first degree); section 710-1017.5 (sale or manufacture of deceptive identification document); section 710‑1018 (securing the proceeds of an offense); section 710-1021 (escape in the second degree); section 710-1023 (promoting prison contraband in the second degree); section 710‑1024 (bail jumping in the first degree); section 710-1029 (hindering prosecution in the first degree); section 710-1060 (perjury); section 710-1072.5 (obstruction of justice); section 711-1103 (riot); section 711-1109.3 (cruelty to animals/fighting dogs); section 711-1110.9 (violation of privacy in the first degree); section 711-1112 (interference with the operator of a public transit vehicle); section 712-1221 (promoting gambling in the first degree); section 712-1222.5 (promoting gambling aboard ships); section 712-1224 (possession of gambling records in the first degree); section 712-1243 (promoting a dangerous drug in the third degree); section 712-1246 (promoting a harmful drug in the third degree); section 712-1247 (promoting a detrimental drug in the first degree); section 712-1249.6 (promoting a controlled substance in, on, or near schools or school vehicles); section 803-42 (interception, access, and disclosure of wire, oral, or electronic communications, use of pen register, trap and trace device, and mobile tracking device prohibited); or section 846E-9(b) (failure to comply with covered offender registration requirements)."

SECTION 14. Section 709-906, Hawaii Revised Statutes, is repealed.

["~~§709-906 Abuse of family or household members; penalty.~~ (1) It shall be unlawful for any person, singly or in concert, to physically abuse a family or household member or to refuse compliance with the lawful order of a police officer under subsection (4). The police, in investigating any complaint of abuse of a family or household member, upon request, may transport the abused person to a hospital or safe shelter.

For the purposes of this section, "family or household member" means spouses or reciprocal beneficiaries, former spouses or reciprocal beneficiaries, persons who have a child in common, parents, children, persons related by consanguinity, and persons jointly residing or formerly residing in the same dwelling unit.

(2) Any police officer, with or without a warrant, may arrest a person if the officer has reasonable grounds to believe that the person is physically abusing, or has physically abused, a family or household member and that the person arrested is guilty thereof.

~~(3) A police officer who has reasonable grounds to believe that the person is physically abusing, or has physically abused, a family or household member shall prepare a written report.~~

(4) Any police officer, with or without a warrant, may take the following course of action where the officer has reasonable grounds to believe that there was physical abuse or harm inflicted by one person upon a family or household member, regardless of whether the physical abuse or harm occurred in the officer's presence:

~~(a)~~ ~~The police officer may make reasonable inquiry of the family or household member upon whom the officer believes physical abuse or harm has been inflicted and other witnesses as there may be;~~

~~(b)~~ Where the police officer has reasonable grounds to believe that there is probable danger of further physical abuse or harm being inflicted by one person upon a family or household member, the police officer lawfully may order the person to leave the premises for a period of separation of twenty-four hours, during which time the person shall not initiate any contact, either by telephone or in person, with the family or household member; provided that the person is allowed to enter the premises with police escort to collect any necessary personal effects;

~~(c)~~ Where the police officer makes the finding referred to in paragraph (b) and the incident occurs after 12:00 p.m. on any Friday, or on any Saturday, Sunday, or legal holiday, the order to leave the premises and to initiate no further contact shall commence immediately and be in full force, but the twenty-four hour period shall be enlarged and extended until 4:30 p.m. on the first day following the weekend or legal holiday;

~~(d)~~ All persons who are ordered to leave as stated above shall be given a written warning citation stating the date, time, and location of the warning and stating the penalties for violating the warning. A copy of the warning citation shall be retained by the police officer and attached to a written report which shall be submitted in all cases. A third copy of the warning citation shall be given to the abused person;

~~(e)~~ If the person so ordered refuses to comply with the order to leave the premises or returns to the premises before the expiration of the period of separation, or if the person so ordered initiates any contact with the abused person, the person shall be placed under arrest for the purpose of preventing further physical abuse or harm to the family or household member; and

~~(f)~~ The police officer may seize all firearms and ammunition that the police officer has reasonable grounds to believe were used or threatened to be used in the commission of an offense under this section.

~~(5) Abuse of a family or household member and refusal to comply with the lawful order of a police officer under subsection (4) are misdemeanors and the person shall be sentenced as follows:~~

~~(a)~~ ~~For the first offense the person shall serve a minimum jail sentence of forty-eight hours; and~~

~~(b)~~ ~~For a second offense that occurs within one year of the first conviction, the person shall be termed a "repeat offender" and serve a minimum jail sentence of thirty days.~~

Upon conviction and sentencing of the defendant, the court shall order that the defendant immediately be incarcerated to serve the mandatory minimum sentence imposed; provided that the defendant may be admitted to bail pending appeal pursuant to chapter 804. The court may stay the imposition of the sentence if special circumstances exist.

(6) Whenever a court sentences a person pursuant to subsection (5), it also shall require that the offender undergo any available domestic violence intervention programs ordered by the court. However, the court may suspend any portion of a jail sentence, except for the mandatory sentences under subsection (5)(a) and (b), upon the condition that the defendant remain arrest-free and conviction-free or complete court-ordered intervention.

~~(7) For a third or any subsequent offense that occurs within two years of a second or subsequent conviction, the offense shall be a class C felony.~~

(8) Where the physical abuse consists of intentionally or knowingly impeding the normal breathing or circulation of the blood of the family or household member by applying pressure on the throat or the neck, abuse of a family or household member is a class C felony.

(9) Any police officer who arrests a person pursuant to this section shall not be subject to any civil or criminal liability; provided that the police officer acts in good faith, upon reasonable belief, and does not exercise unreasonable force in effecting the arrest.

(10) The family or household member who has been physically abused or harmed by another person may petition the family court, with the assistance of the prosecuting attorney of the applicable county, for a penal summons or arrest warrant to issue forthwith or may file a criminal complaint through the prosecuting attorney of the applicable county.

(11) The respondent shall be taken into custody and brought before the family court at the first possible opportunity. The court may dismiss the petition or hold the respondent in custody, subject to bail. Where the petition is not dismissed, a hearing shall be set.

~~(12) This section shall not operate as a bar against prosecution under any other section of this Code in lieu of prosecution for abuse of a family or household member.~~

~~(13) It shall be the duty of the prosecuting attorney of the applicable county to assist any victim under this section in the preparation of the penal summons or arrest warrant.~~

~~(14) This section shall not preclude the physically abused or harmed family or household member from pursuing any other remedy under law or in equity.~~

(15) When a person is ordered by the court to undergo any domestic violence intervention, that person shall provide adequate proof of compliance with the court's order. The court shall order a subsequent hearing at which the person is required to make an appearance, on a date certain, to determine whether the person has completed the ordered domestic violence intervention. The court may waive the subsequent hearing and appearance where a court officer has established that the person has completed the intervention ordered by the court."]

SECTION 15. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 16. In codifying the new sections added by section 3 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 17. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 18. This Act shall take effect on July 1, 2008.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	3379
TWENTY-FOURTH LEGISLATURE, 2008
STATE OF HAWAII