DV; Repeat Offenders

Clarifies the family or household member abuse law regarding
repeat offenders and eliminates a loophole for felony level

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

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  The purpose of this Act is to expressly restate,
 2 reiterate, and declare the intent of the legislature in enacting
 3 Act 172, Session Laws of Hawaii 1998, making a third or
 4 subsequent offense of abuse of family or household members a
 5 class C felony, was originally and is now to include any third or
 6 subsequent offense occurring within two years of a prior offense.
 7      SECTION 2.  Section 706-906, Hawaii Revised Statutes, is
 8 amended to read as follows:
 9      "709-906  Abuse of family or household members; penalty.
10 (1)  It shall be unlawful for any person, singly or in concert,
11 to physically abuse a family or household member or to refuse
12 compliance with the lawful order of a police officer under
13 subsection (4).  The police, in investigating any complaint of
14 abuse of a family or household member, upon request, may
15 transport the abused person to a hospital or safe shelter.
16      For the purposes of this section, "family or household
17 member" means spouses or reciprocal beneficiaries, former spouses
18 or reciprocal beneficiaries, persons who have a child in common,
19 parents, children, persons related by consanguinity, and persons

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

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

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 1      (e)  If the person so ordered refuses to comply with the
 2           order to leave the premises or returns to the premises
 3           before the expiration of the period of separation, or
 4           if the person so ordered initiates any contact with the
 5           abused person, the person shall be placed under arrest
 6           for the purpose of preventing further physical abuse or
 7           harm to the family or household member; and
 8      (f)  The police officer may seize all firearms and
 9           ammunition that the police officer has reasonable
10           grounds to believe were used or threatened to be used
11           in the commission of an offense under this section.
12      (5)  Abuse of a family or household member and refusal to
13 comply with the lawful order of a police officer under subsection
14 (4) are misdemeanors, except as specified in this section, and
15 the person shall be sentenced as follows:
16      (a)  For the first offense the person shall serve a minimum
17           jail sentence of forty-eight hours; [and]
18      (b)  For a second offense [and any other subsequent offense]
19           under this section that occurs within one year of the
20           [previous] first offense[,] under this section and any
21           other subsequent offense under this section that does
22           not qualify as a felony pursuant to paragraph (c), the
23           person shall be termed a "repeat offender" and serve a

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 1           minimum jail sentence of thirty days[.]; and
 2      (c)  For any third or subsequent offense under this section
 3           occurring within two years of any prior offense under
 4           this section, the person shall be charged with a class
 5           C felony and serve a minimum jail sentence of thirty
 6           days.
 7 Upon conviction and sentencing of the defendant, the court shall
 8 order that the defendant immediately be incarcerated to serve the
 9 mandatory minimum sentence imposed; provided that the defendant
10 may be admitted to bail pending appeal pursuant to chapter 804.
11 The court may stay the imposition of the sentence if special
12 circumstances exist.
13      (6)  Whenever a court sentences a person pursuant to
14 subsection (5), it also shall require that the offender undergo
15 any available domestic violence intervention programs ordered by
16 the court.  However, the court may suspend any portion of a jail
17 sentence, except for the mandatory sentences under subsection
18 (5)(a) and (b), upon the condition that the defendant remain
19 arrest-free and conviction-free or complete court-ordered
20 intervention.
21      [(7)  For any subsequent offense occurring within two years
22 after a second misdemeanor conviction, the person shall be
23 charged with a class C felony.

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 1      (8)] (7)  Any police officer who arrests a person pursuant
 2 to this section shall not be subject to any civil or criminal
 3 liability; provided that the police officer acts in good faith,
 4 upon reasonable belief, and does not exercise unreasonable force
 5 in effecting the arrest.
 6      [(9)] (8)  The family or household member who has been
 7 physically abused or harmed by another person may petition the
 8 family court, with the assistance of the prosecuting attorney of
 9 the applicable county, for a penal summons or arrest warrant to
10 issue forthwith or may file a criminal complaint through the
11 prosecuting attorney of the applicable county.
12      [(10)] (9)  The respondent shall be taken into custody and
13 brought before the family court at the first possible
14 opportunity.  The court may dismiss the petition or hold the
15 respondent in custody, subject to bail.  Where the petition is
16 not dismissed, a hearing shall be set.
17      [(11)] (10) This section shall not operate as a bar against
18 prosecution under any other section of this Code in lieu of
19 prosecution for abuse of a family or household member.
20      [(12)] (11)  It shall be the duty of the prosecuting
21 attorney of the applicable county to assist any victim under this
22 section in the preparation of the penal summons or arrest
23 warrant.

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 1      [(13)] (12)  This section shall not preclude the physically
 2 abused or harmed family or household member from pursuing any
 3 other remedy under law or in equity.
 4      [(14)] (13)  When a person is ordered by the court to
 5 undergo any domestic violence intervention, that person shall
 6 provide adequate proof of compliance with the court's order.  The
 7 court shall order a subsequent hearing at which the person is
 8 required to make an appearance, on a date certain, to determine
 9 whether the person has completed the ordered domestic violence
10 intervention.  The court may waive the subsequent hearing and
11 appearance where a court officer has established that the person
12 has completed the intervention ordered by the court."
13      SECTION 3.  This Act does not affect rights and duties that
14 matured, penalties that were incurred, and proceedings that were
15 begun, before its effective date.
16      SECTION 4.  Statutory material to be repealed is bracketed.
17 New statutory material is underscored.
18      SECTION 5.  This Act shall take effect upon its approval.
20                          INTRODUCED BY: _________________________