HB1765

SECTION 1. Section 709-906, Hawaii Revised Statutes, is amended to read as follows:

"§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:

"Business day" means any calendar day, except Saturday, Sunday, or any state holiday.

"Family or household member":

(a) Means spouses or reciprocal beneficiaries, former spouses or reciprocal beneficiaries, persons in a dating relationship as defined under section 586-1, 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; and

(b) Does not include those who are, or were, adult roommates or cohabitants only by virtue of an economic or contractual affiliation.

(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, shall take the following course of action, regardless of whether the physical abuse or harm occurred in the officer's presence:

(a) The police officer shall 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) If the person who the police officer reasonably believes to have inflicted the abuse is eighteen years of age or older, the police officer lawfully shall order the person to leave the premises for a period of separation, 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. The period of separation shall commence when the order is issued and shall expire at 6:00 p.m. on the second business day following the day the order was issued; provided that the day the order is issued shall not be included in the computation of the two business days;

(c) If the person who the police officer reasonably believes to have inflicted the abuse is under the age of eighteen, the police officer may order the person to leave the premises for a period of separation, during which time the person shall not initiate any contact with the family or household member by telephone or in person; provided that the person is allowed to enter the premises with police escort to collect any necessary personal effects. The period of separation shall commence when the order is issued and shall expire at 6:00 p.m. on the second business day following the day the order was issued; provided that the day the order is issued shall not be included in the computation of the two business days. The order of separation may be amended at any time by a judge of the family court. In determining whether to order a person under the age of eighteen to leave the premises, the police officer may consider the following factors:

(i) Age of the person;

(ii) Relationship between the person and the family or household member upon whom the police officer reasonably believes the abuse has been inflicted; and

(iii) Ability and willingness of the parent, guardian, or other authorized adult to maintain custody and control over the person;

(d) All persons who are ordered to leave [~~as stated above~~] pursuant to paragraphs (b) and (c) 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 shall 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~~] defendant shall be sentenced [~~as follows:~~

~~(a)~~ ~~For~~] for the first offense [~~the person shall~~] to 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) For a second offense that occurs within five years of the first conviction, the offense shall be a misdemeanor. Upon conviction for the second offense, the defendant shall be termed a "repeat offender".

(7) For a third or any subsequent offense that occurs within five years of a second or subsequent conviction, the offense shall be a class C felony. The prosecution may use the prior convictions as evidence in the prosecution of the instant offense.

[~~(6)~~] (8) Whenever a court sentences a [~~person~~] defendant pursuant to subsection (5), (6), or (7), it also shall require that the [~~offender~~] defendant undergo any available domestic violence intervention programs ordered by the court. As applicable, the court shall order that the defendant immediately be incarcerated to serve the mandatory sentence imposed for:

(a) Failure to complete the domestic violence intervention program; or

(b) Violation of any other condition of a sentence imposed pursuant to chapter 853, if applicable.

[~~However, the~~] The court may suspend any portion of a jail sentence, except for the mandatory [~~sentences~~] sentence under subsection [~~(5)(a) and (b),~~] (5), 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)~~] (9) 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)~~] (10) Where physical abuse occurs in the presence of a minor, as defined in section 706-606.4, and the minor is a family or household member less than fourteen years of age, abuse of a family or household member is a class C felony.

[~~(10)~~] (11) 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.

[~~(11)~~] (12) 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.

[~~(12)~~] (13) 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.

[~~(13)~~] (14) 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.

[~~(14)~~] (15) 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.

[~~(15)~~] (16) This section shall not preclude the physically abused or harmed family or household member from pursuing any other remedy under law or in equity.

[~~(16)~~] (17) 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 2. (a) The judiciary, in cooperation with the prosecutor and police department of each county, shall annually compile and report statistics regarding arrests, charges, and convictions or other dispositions made based on section 709-906, Hawaii Revised Statutes.

(b) The statistical report shall include but not be limited to:

(1) From the police department of each county:

(A) The number of arrests made pursuant to section 709-906, Hawaii Revised Statutes;

(B) The number of cases based on arrests made pursuant to section 709-906, Hawaii Revised Statutes, referred to the county prosecutor;

(C) The number of investigations relating to section 709-906, Hawaii Revised Statutes, that are pending as of June 30, 2018, 2019, and 2020; and

(D) The number of cases relating to section 709-906, Hawaii Revised Statutes, that were closed and not referred to the county prosecutor for further action;

(2) From the prosecutor of each county:

(A) The number of cases based on arrests made pursuant to section 709-906, Hawaii Revised Statutes, that were referred by the police department for charging;

(B) The number of charges based on section 709-906, Hawaii Revised Statutes;

(C) The number of charges made pursuant to section 709-906, Hawaii Revised Statutes, that were amended and a description of the amendments made to those charges;

(D) The number of cases relating to section 709-906, Hawaii Revised Statutes, that are pending as of June 30, 2018, 2019, and 2020; and

(E) The number of cases relating to section 709-906, Hawaii Revised Statutes, that were closed or no further action was taken by the prosecutor; and

(3) From the judiciary:

(A) A compilation and analysis of the statistics received from the police department of each county under paragraph (1) and the prosecutor of each county under paragraph (2);

(B) The number of cases that resulted in convictions under section 709-906, Hawaii Revised Statutes, and were dismissed, and any other dispositions; and

(C) A comparative analysis of the number of arrests, charges, and convictions made based on section 709-906, Hawaii Revised Statutes, compiled prior and subsequent to the effective date of this Act.

(c) The judiciary shall submit a written report of its findings, including any proposed legislation, to the legislature no later than twenty days prior to the convening of the regular sessions of 2019, 2020, and 2021.

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval; provided that on June 30, 2021, this Act shall be repealed and section 709-906, Hawaii Revised Statutes, shall be reenacted in the form in which it read on the day prior to the effective date of this Act.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	1765
TWENTY-NINTH LEGISLATURE, 2018
STATE OF HAWAII