Bill Text: HI SB2343 | 2018 | Regular Session | Introduced
Bill Title: Relating To Domestic Violence.
Spectrum: Partisan Bill (Democrat 12-0)
Status: (Engrossed - Dead) 2018-03-23 - Passed Second Reading and referred to the committee(s) on FIN with none voting aye with reservations; none voting no (0) and Representative(s) C. Lee, Lowen, McDermott, Souki, Tokioka excused (5). [SB2343 Detail]
Download: Hawaii-2018-SB2343-Introduced.html
|
THE SENATE |
S.B. NO. |
2343 |
|
TWENTY-NINTH LEGISLATURE, 2018 |
|
|
|
STATE OF HAWAII |
|
|
|
|
|
|
|
|
||
|
|
||
A BILL FOR AN ACT
relating to domestic violence.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that victims of domestic violence are in constant danger of death or physical harm. The legislature further finds that the danger faced by these victims is exacerbated by institutional inefficiencies at the state and county levels of government. Victims typically turn to police and the courts for protection, often to seek protective orders for themselves and their children. While victims expect that protective orders will be vigorously enforced and reported violations treated with urgency, the reality is that, far too often, the system falls short and victims are left to fend for themselves. In other instances, victims who received the benefit of a no-contact order or stay-away order imposed during the pendency of a criminal case are unaware that the order expires once the criminal court's jurisdiction has ended. Giving victims no recourse but to begin anew by petitioning for a separate protective order is far from ideal; persons who have already suffered the trauma of domestic violence should not be forced to undergo an additional court process simply to continue receiving the protection of the law.
The legislature is acutely aware that state and county government must urgently address this and other systemic problems such as lack of adequate offender accountability in order to keep victims of domestic violence meaningfully protected under the law. Failure to take action will only place victims in greater danger and raise the likelihood that a domestic violence fatality will occur.
The purpose of this Act is to strengthen the state and county responses to domestic violence and increase offender accountability by:
(1) Requiring that no-contact and stay-away orders issued in criminal cases involving abuse of a family or household member or a related enumerated offense be enforced regardless of whether the defendant signed a written acknowledgment of the order, provided that the defendant was informed on the record of the terms and conditions of the order, and requiring that these orders be automatically converted by the court to a new protective order that shall remain in effect for a fixed reasonable period as the court deems appropriate, unless the victim or witness in the case requests otherwise;
(2) Amending the offense of abuse of family or household member to provide for felony, misdemeanor, and petty misdemeanor penalties;
(3) Expanding the family court's jurisdiction over harassment cases, which is currently limited to those involving persons in current dating relationships, by including cases involving persons in former dating relationships;
(4) Requiring formal hearings to show that any court-ordered domestic violence intervention program or parenting classes were completed within a specified time frame and requiring the imposition of a period of incarceration as a penalty for failure to comply;
(5) Requiring that cases involving other enumerated offenses committed against a family or household member be heard by the family court, even if the case does not include a charge of abuse of family or household member, to appropriately reflect the broader spectrum of offenses committed in a domestic violence context and subject offenders to more thorough supervision; and
(6) Reducing congestion in the court system caused by a backlog of jury trial cases by repealing a provision that currently disqualifies persons charged with the offense of abuse of family or household member from receiving a deferred acceptance of guilty or no contest plea and specifying that the deferred acceptance shall be set aside if the defendant fails to complete a court-ordered domestic violence intervention program or parenting classes within the time frame specified by the court.
"§706- Post-conviction protective orders. A defendant in a case involving abuse of a family or household member under section 709-906 or any offense enumerated in section 709- who was subject to a no-contact or stay-away order imposed under section 804-7.1 or 706-624 during the pendency of the case and who is subsequently sentenced to a term of imprisonment shall immediately be subject to the terms and conditions of the prior order upon the defendant's conviction in that case. The prior order shall be automatically converted by the court prior to the expiration of the court's jurisdiction over the case to a new protective order that shall remain in effect for a fixed reasonable period as the court deems appropriate, unless the victim or witness in the case requests otherwise. The new protective order shall be documented, filed, and enforced in the same manner as a protective order issued under chapter 586."
SECTION 3. Chapter 709, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§709- Offenses other than abuse of family
or household members; family court jurisdiction. (1)
Cases involving any of the following enumerated offenses shall be heard
by the family court, even if no charge of abuse of a family or household member
pursuant to section 709-906 resulted; provided that the offense was committed
against a family or household member as defined in section 709-906:
(a) Section
707-701, murder in the first degree;
(b) Section
707-701.5, murder in the second degree;
(c) Section
707-702, manslaughter;
(d) Section
707-710, assault in the first degree;
(e) Section
707-711, assault in the second degree;
(f) Section
707-712, assault in the third degree;
(g) Section
707-716, terroristic threatening in the first degree;
(h) Section
707-717, terroristic threatening in the second degree;
(i) Section
707-720, kidnapping;
(j) Section
707-721, unlawful imprisonment in the first degree;
(k) Section 707-722,
unlawful imprisonment in the second degree;
(l) Section
708-810, burglary in the first degree;
(m) Section
708-812.55, unauthorized entry in a dwelling in the first degree;
(n) Section
708-812.6, unauthorized entry in a dwelling in the second degree;
(o) Section
708-813, criminal trespass in the first degree;
(p) Section
708-814, criminal trespass in the second degree;
(q) Section
708-814.5, criminal trespass onto public parks and recreational grounds;
(r) Section
708-816.5, entry upon the premises of a facility utilized as a sex, child, or
spouse abuse shelter;
(s) Section
708-820, criminal property damage in the first degree;
(t) Section
708-821, criminal property damage in the second degree;
(u) Section
708-822, criminal property damage in the third degree;
(v) Section
708-823, criminal property damage in the fourth degree;
(w) Section
708-823.5, aggravated criminal property damage;
(x) Section
708-836.5, unauthorized entry into motor vehicle in the first degree;
(y) Section
708-836.6, unauthorized entry into motor vehicle in the second degree;
(z) Section
708-8251, arson in the first degree;
(aa) Section 708-8252,
arson in the second degree;
(bb) Section 708-8253,
arson in the third degree;
(cc) Section 708-8254,
arson in the fourth degree;
(dd) Section 711-1106.4,
aggravated harassment by stalking; or
(ee) Section 711-1106.5, harassment by stalking.
(2) Sentencing in offenses enumerated in subsection (1) shall be as provided for in the respective underlying offenses; provided that a defendant shall additionally be subject to:
(a) The
requirements of section 709-906(6) with respect to completion of any available
domestic violence intervention program or parenting classes and penalties for
failure to complete the program or classes; and
(b) The requirements of section 709-906(13) with respect to a proof of compliance hearing."
SECTION 4. Section 571-14, Hawaii Revised Statutes, is amended by amending subsection (a) 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, 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;
(C) Any
violation of an order issued pursuant to chapter 586; [or]
(D) Any
violation of an order issued by a family court judge[.]; or
(E) Any violation of section 709-906 or section 709‑ .
In
any case within paragraph (1) or (2)[,] that does not involve abuse
of a family or household member under section 709-906 or an enumerated offense
under section 709- , 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 vulnerable 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."
SECTION 5. Section 706-624, Hawaii Revised Statutes, is amended by amending subsection (2) to read as follows:
"(2)
Discretionary conditions. The
court may provide, as further conditions of a sentence of probation, to the
extent that the conditions are reasonably related to the factors set forth in
section 706-606 and to the extent that the conditions involve only deprivations
of liberty or property as are reasonably necessary for the purposes indicated
in section 706-606(2), that the defendant:
(a) Serve a term of imprisonment to be determined by the court at sentencing in class A felony cases under section 707-702, not exceeding two years in class A felony cases under part IV of chapter 712, not exceeding eighteen months in class B felony cases, not exceeding one year in class C felony cases, not exceeding six months in misdemeanor cases, and not exceeding five days in petty misdemeanor cases; provided that notwithstanding any other provision of law, any order of imprisonment under this subsection that provides for prison work release shall require the defendant to pay thirty per cent of the defendant's gross pay earned during the prison work release period to satisfy any restitution order. The payment shall be handled by the adult probation division and shall be paid to the victim on a monthly basis;
(b) Perform a specified number of hours of services to the community as described in section 706-605(1)(d);
(c) Support the defendant's dependents and meet other family responsibilities;
(d) Pay a fine imposed pursuant to section 706-605(1)(b);
(e) Work conscientiously at suitable employment or pursue conscientiously a course of study or vocational training that will equip the defendant for suitable employment;
(f) Refrain from engaging in a specified occupation, business, or profession bearing a reasonably direct relationship to the conduct constituting the crime or engage in the specified occupation, business, or profession only to a stated degree or under stated circumstances;
(g) Refrain from
frequenting specified kinds of places or from associating unnecessarily with
specified persons, including the victim of the crime, any witnesses, regardless
of whether they actually testified in the prosecution, law enforcement
officers, co-defendants, or other individuals with whom contact may adversely
affect the rehabilitation or reformation of the person convicted; provided
that:
(i) Where
the court prohibits a defendant from approaching or communicating with a
particular person or classes of persons or from going to certain described
geographical areas or premises under this paragraph, the resulting no-contact
or stay-away order shall be enforced regardless of whether the defendant signed
a written acknowledgment of the order, provided that the defendant was informed
on the record of the terms and conditions of the order in open court. A law enforcement officer who receives a
report of a defendant's alleged violation of a no-contact or stay-away order
shall not decline to enforce the order for lack of a written record evidencing
the defendant's knowledge of the order and shall exercise due diligence in
obtaining the court's confirmation that the defendant was informed of the order
and its terms and conditions in open court; and
(ii) A
no-contact or stay-away order imposed pursuant to this paragraph in a case
involving abuse of a family or household member under section 709-906 or any
offense enumerated in section 709- shall be
automatically converted by the court prior to the expiration of the defendant's
term of supervision to a new protective order that shall remain in effect for a
fixed reasonable period as the court deems appropriate, unless the victim or
witness in the case requests otherwise.
The new protective order shall be documented, filed, and enforced in the
same manner as a protective order issued under chapter 586.
(h) Refrain from use of alcohol or any use of narcotic drugs or controlled substances without a prescription;
(i) Refrain from possessing a firearm, ammunition, destructive device, or other dangerous weapon;
(j) Undergo available medical or mental health assessment and treatment, including assessment and treatment for substance abuse dependency, and remain in a specified facility if required for that purpose;
(k) Reside in a specified place or area or refrain from residing in a specified place or area;
(l) Submit to periodic urinalysis or other similar testing procedure;
(m) Refrain from entering specified geographical areas without the court's permission;
(n) Refrain from leaving the person's dwelling place except to go to and from the person's place of employment, the office of the person's physician or dentist, the probation office, or any other location as may be approved by the person's probation officer pursuant to court order. As used in this paragraph, "dwelling place" includes the person's yard or, in the case of condominiums, the common elements;
(o) Comply with a specified curfew;
(p) Submit to monitoring by an electronic monitoring device;
(q) Submit to a search by any probation officer, with or without a warrant, of the defendant's person, residence, vehicle, or other sites or property under the defendant's control, based upon the probation officer's reasonable suspicion that illicit substances or contraband may be found on the person or in the place to be searched;
(r) Sign a waiver of extradition and pay extradition costs as determined and ordered by the court;
(s) Comply with a service plan developed using current assessment tools; and
(t) Satisfy other reasonable conditions as the court may impose."
SECTION 6. 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]
law enforcement officer under subsection (4). The [police,] law enforcement
agency, 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:
"Bodily injury" means physical
pain, illness, or any impairment of physical condition.
"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 current or former 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.
"In the presence of a
minor" has the same meaning as in section 706-606.4.
(2)
Any [police] law enforcement officer, with or without a
warrant, may arrest a person if the officer has [reasonable grounds] probable
cause 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] law enforcement officer who has a reasonable
[grounds] suspicion [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] law enforcement 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]
law enforcement officer shall make reasonable inquiry of the family or
household member upon whom the officer [believes] reasonably suspects
physical abuse or harm has been inflicted and other witnesses as there may be;
(b) If the person [who]
whom the [police] law enforcement officer reasonably [believes]
suspects to have inflicted the abuse or created an imminent danger that
abuse will be inflicted is eighteen years of age or older, the [police]
law enforcement 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] a law enforcement 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]
whom the [police] law enforcement officer reasonably [believes]
suspects to have inflicted the abuse or created an imminent danger
that abuse will be inflicted is under the age of eighteen, the [police]
law enforcement 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] a law
enforcement 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] law enforcement 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]
law enforcement officer reasonably [believes] suspects [the
abuse] has been [inflicted;] abused or is in imminent danger of
being abused; 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] under 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] law enforcement 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]
law enforcement officer shall seize all firearms and ammunition that the
[police] law enforcement officer [has reasonable grounds to
believe] reasonably suspects were used or threatened to be used in
the commission of an offense under this section.
(5) The
degrees of and penalties for the offense of abuse of a family or household
member shall be as follows:
(a) Abuse
of a family or household member [and refusal] in the first
degree.
(i) It
shall be a class C felony to intentionally or knowingly impede the normal
breathing or circulation of the blood of a family or household member by
applying pressure on the throat or neck of the family or household member.
(ii) It
shall be a class C felony to intentionally or knowingly cause bodily injury to
a family or household member who is a minor, or in the presence of a minor when
the minor is a family or household member under fourteen years of age.
(b) Abuse
of a family or household member in the second degree. It shall be a misdemeanor, unless otherwise
specified, to intentionally, knowingly, or recklessly cause bodily injury to a
family or household member or to refuse to comply with the lawful order of
a [police] law enforcement officer under subsection (4) [are
misdemeanors] and the [person] defendant shall be sentenced
as follows:
[(a)] (i) For
the first offense of abuse of a family or household member in the second
degree the [person] defendant shall serve a minimum jail
sentence of forty-eight hours; [and]
[(b)] (ii) For
a second offense of abuse of a family or household member in the second
degree that occurs within [one year] five years of the first
conviction, the [person] defendant shall be termed a "repeat
offender" and serve a minimum jail sentence of thirty days[.];
and
(iii) For
a third or subsequent offense that occurs within ten years of a second or
subsequent conviction, the offense shall be a class C felony and the defendant
shall serve a minimum jail sentence of one hundred eighty 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.
(c) Abuse of a
family or household member in the third degree.
It shall be a petty misdemeanor for a person, with intent to harass,
annoy, or alarm a family or household member, to strike, shove, kick, or
otherwise touch the family or household member in an offensive manner or
subject the family or household member to offensive physical contact.
(6)
Whenever a court sentences a person pursuant to subsection (5), it also
shall require that the offender [undergo] complete within a specified
time frame any available domestic violence intervention programs and, if
the offense involved the presence of or abuse of a minor, any available
parenting classes ordered by the court.
The court shall immediately amend the defendant's sentence to the
maximum term of incarceration if:
(a) The defendant fails
to complete the domestic violence intervention program or parenting classes, if
applicable; or
(b) The defendant
violates 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 under subsection (5)[(a) and (b),] (b)(i),
(ii), and (iii), 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)
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)] (7) Any [police] law enforcement
officer who arrests a person pursuant to this section shall not be subject to
any civil or criminal liability; provided that the [police] law
enforcement officer acts in good faith, upon reasonable belief, and does
not exercise unreasonable force in effecting the arrest.
[(11)]
(8) 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)] (9) 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)] (10) 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)] (11) 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)] (12) 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)] (13) [When a person is] A defendant
ordered by the court to [undergo any] complete a domestic
violence intervention program or parenting classes under subsection (6) [that
person] shall provide adequate proof of compliance with the court's
order. The court shall order a
subsequent hearing at which the [person] defendant is required to
make an appearance, on a date certain, to determine whether the [person]
defendant has satisfactorily completed the ordered domestic
violence intervention[.] program or parenting classes within the time
frame specified by the court under subsection (6). The court may waive the subsequent hearing
and appearance where a court officer has established that the [person] defendant
has completed the intervention ordered by the court.
(14)
At the initial appearance in any prosecution under this section, the
court shall enter an order requiring that the defendant and the complaining
witness refrain from contacting one another until the prosecution has
terminated, subject to any reasonable conditions imposed by the court."
SECTION 7. Section 804-7.1, Hawaii Revised Statutes, is amended to read as follows:
"§804-7.1 Conditions of
release on bail, recognizance, or supervised release. Upon a showing that there exists a danger
that the defendant will commit a serious crime or will seek to intimidate
witnesses, or will otherwise unlawfully interfere with the orderly
administration of justice, the judicial officer named in section 804-5 may deny
the defendant's release on bail, recognizance, or supervised release.
Upon
the defendant's release on bail, recognizance, or supervised release, however,
the court may enter an order:
(1) Prohibiting the defendant from approaching or communicating with particular persons or classes of persons, except that no such order should be deemed to prohibit any lawful and ethical activity of defendant's counsel;
(2) Prohibiting the defendant from going to certain described geographical areas or premises;
(3) Prohibiting the defendant from possessing any dangerous weapon, engaging in certain described activities, or indulging in intoxicating liquors or certain drugs;
(4) Requiring the defendant to report regularly to and remain under the supervision of an officer of the court;
(5) Requiring the defendant to maintain employment, or, if unemployed, to actively seek employment, or attend an educational or vocational institution;
(6) Requiring the defendant to comply with a specified curfew;
(7) Requiring the defendant to seek and maintain mental health treatment or testing, including treatment for drug or alcohol dependency, or to remain in a specified institution for that purpose;
(8) Requiring the defendant to remain in the jurisdiction of the judicial circuit in which the charges are pending unless approval is obtained from a court of competent jurisdiction to leave the jurisdiction of the court;
(9) Requiring the defendant to satisfy any other condition reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person or community; or
(10) Imposing any combination of conditions listed above.
The
judicial officer may revoke a defendant's bail upon proof that the defendant
has breached any of the conditions imposed.
Where
the court prohibits a defendant from approaching or communicating with a
particular person or classes of persons under paragraph (1) or from going to
certain described geographical areas or premises under paragraph (2), the
resulting no-contact or stay-away order shall be enforced regardless of whether
the defendant signed a written acknowledgment of the order, provided that the
defendant was informed on the record of the terms and
conditions of the order in open court.
A law enforcement officer who receives a report of a defendant's alleged
violation of a no-contact or stay-away order shall not decline to enforce the
order for lack of a written record evidencing the defendant's knowledge of the
order and shall exercise due diligence in obtaining the court's confirmation
that the defendant was informed of the order and its terms and conditions in
open court."
SECTION 8. Section 853-4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) This chapter shall not apply when:
(1) The offense charged involves the intentional, knowing, reckless, or negligent killing of another person;
(2) The offense charged is:
(A) A felony that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person; or
(B) A misdemeanor or petty misdemeanor that carries a mandatory minimum sentence and that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person;
provided that the
prohibition in this paragraph shall not apply to the offense of abuse of family
or household members under section 709-906;
(3) The offense charged involves a conspiracy or solicitation to intentionally, knowingly, or recklessly kill another person or to cause serious bodily injury to another person;
(4) The offense charged is a class A felony;
(5) The offense charged is nonprobationable;
(6) The defendant has been convicted of any offense defined as a felony by the Hawaii Penal Code or has been convicted for any conduct that if perpetrated in this State would be punishable as a felony;
(7) The defendant is found to be a law violator or delinquent child for the commission of any offense defined as a felony by the Hawaii Penal Code or for any conduct that if perpetrated in this State would constitute a felony;
(8) The defendant has a prior conviction for a felony committed in any state, federal, or foreign jurisdiction;
(9) A firearm was used in the commission of the offense charged;
(10) The defendant is charged with the distribution of a dangerous, harmful, or detrimental drug to a minor;
(11) The defendant has been charged with a felony offense and has been previously granted deferred acceptance of guilty plea or no contest plea for a prior offense, regardless of whether the period of deferral has already expired;
(12) The defendant has been charged with a misdemeanor offense and has been previously granted deferred acceptance of guilty plea or no contest plea for a prior felony, misdemeanor, or petty misdemeanor for which the period of deferral has not yet expired;
(13) The offense charged is:
(A) Escape in the first degree;
(B) Escape in the second degree;
(C) Promoting prison contraband in the first degree;
(D) Promoting prison contraband in the second degree;
(E) Bail jumping in the first degree;
(F) Bail jumping in the second degree;
(G) Bribery;
(H) Bribery of or by a witness;
(I) Intimidating a witness;
(J) Bribery of or by a juror;
(K) Intimidating a juror;
(L) Jury tampering;
(M) Promoting prostitution;
(N) Abuse of family or household member;
(O) Sexual assault in the second degree;
(P) Sexual assault in the third degree;
(Q) A violation of an order issued pursuant to chapter 586;
(R) Promoting child abuse in the second degree;
(S) Promoting child abuse in the third degree;
(T) Electronic
enticement of a child in the first degree;
(U) Electronic enticement of a child in the second degree;
(V) Prostitution pursuant to section 712-1200(1)(b);
(W) Street solicitation of prostitution under section 712-1207(1)(b);
(X) Solicitation of prostitution near schools or public parks under section 712-1209;
(Y) Habitual solicitation of prostitution under section 712-1209.5; or
(Z) Solicitation of a minor for prostitution under section 712-1209.1;
(14) The defendant has been charged with:
(A) Knowingly or intentionally falsifying any report required under chapter 11, part XIII with the intent to circumvent the law or deceive the campaign spending commission; or
(B) Violating section 11-352 or 11-353; or
(15) The defendant holds a commercial driver's license and has been charged with violating a traffic control law, other than a parking law, in connection with the operation of any type of motor vehicle."
SECTION 9. The judiciary shall adopt rules no later than January 1, 2019, to effectuate the purposes of this Act.
SECTION 10. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 11. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
SECTION 12. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 13. This Act shall take effect on January 1, 2019.
|
INTRODUCED BY: |
_____________________________ |
|
|
|
Report Title:
Abuse of Family or Household Members; Penalties; Degrees of Offense; Protective Orders; Enforcement; Family Court; Jurisdiction
Description:
Amends the offense of abuse of family or household members to provide for felony, misdemeanor, and petty misdemeanor penalties. Expands the family court's jurisdiction over certain enumerated offenses committed against family or household members. Repeals the prohibition on deferred acceptance of guilty or no contest pleas in cases involving abuse of family or household members. Requires that no-contact and stay-away orders issued during the pendency of a criminal case or as a condition of probation be enforced regardless of whether the defendant signed a written acknowledgment of the order, provided that the defendant was informed on the record of the terms and conditions of the order in open court. Requires that no-contact and stay-away orders issued during the pendency of trial cases involving abuse of family or household members or certain enumerated offenses be automatically converted after the defendant's conviction to a new protective order that shall remain in effect for a fixed reasonable period as the court deems appropriate, unless the victim or witness requests otherwise.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.
