Clarifies the basis for granting a temporary restraining order;
increases the duration of a temporary restraining order; allows
the service of a temporary restraining order by certified mail;
and includes "reckless" behavior as the basis for a misdemeanor
violation, in cases of harassment.

THE SENATE                              S.B. NO.           891
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  Section 604-10.5, Hawaii Revised Statutes, is
 2 amended by amending subsections (d), (e), and (f) to read as
 3 follows:
 4      "(d)  A petition for relief from harassment shall be in
 5 writing and shall allege that a [recent] past act or acts of
 6 harassment may have occurred, or that threats of harassment make
 7 it probable that acts of harassment may be imminent; and shall be
 8 accompanied by an affidavit made under oath or statement made
 9 under penalty of perjury stating the specific facts and
10 circumstances from which relief is sought.
11      (e)  Upon petition to a district court under this section,
12 the court may temporarily restrain [for a period of fifteen
13 days,] the person or persons named in the petition from harassing
14 the petitioner [if the alleged harassment has caused the
15 petitioner substantial emotional distress.] upon a determination
16 that there is probable cause to believe that a past act or acts
17 of harassment have occurred or that a threat or threats of
18 harassment may be imminent.  The court may issue an ex parte
19 temporary restraining order either in writing or orally[,];

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 1 provided that oral orders shall be reduced to writing by the
 2 close of the next court day following oral issuance.
 3      (f)  A temporary restraining order that is granted under
 4 this section shall remain in effect at the discretion of the
 5 court for a period not to exceed ninety days from the date the
 6 order is granted.  A hearing on the petition to enjoin harassment
 7 shall be held within fifteen days after it is [filed.] granted.
 8 In the event that service has not been effected, the court may
 9 set a new date for the hearing; provided that the new date shall
10 not exceed ninety days from the date the temporary restraining
11 order was granted.
12      The parties named in the petition may file or give oral
13 responses explaining, excusing, justifying, or denying the
14 alleged act or acts of harassment.  The court shall receive
15 [such] all evidence [as] that is relevant at the hearing, and may
16 make independent inquiry.
17      If the court finds by clear and convincing evidence that
18 harassment as defined in paragraph (1) of that definition exists,
19 it may enjoin for no more than three years further harassment of
20 the petitioner, or that harassment as defined in paragraph (2) of
21 that definition exists, it shall enjoin for no more than three
22 years further harassment of the petitioner; provided that this
23 paragraph shall not prohibit the court from issuing other

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 1 injunctions against the named parties even if the time to which
 2 the injunction applies exceeds a total of three years.
 3      Any order issued under this [subsection] section shall
 4 either be personally served upon the respondent, or served by
 5 certified mail.  A respondent who has been served with a
 6 temporary restraining order by personal service or certified mail
 7 shall be deemed to have notice of any subsequently issued
 8 injunction order, if the respondent fails to make an appearance
 9 at the hearing in which the injunction order is issued,  If the
10 respondent appears at the injunction hearing, the respondent
11 shall be given a copy of any order that is issued; provided that
12 if the record reflects that the respondent did not remain in
13 court to receive a copy of the order, the respondent shall be
14 deemed to have notice of the order without further service of the
15 order upon the respondent.
16      Where service of a restraining order or injunction has been
17 made or where the respondent is deemed to have received notice of
18 a restraining order or injunction order, any reckless, knowing,
19 or intentional violation of the restraining order or injunction
20 order shall subject the respondent to the provisions in
21 subsection (h).
22      Any order issued shall be personally served [by regular
23 mail] upon the chief of police of [each] the county[.] in which

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                                     S.B. NO.           891

 1 the order is issued by way of regular mail, facsimile
 2 transmission, or other similar means of transmission."
 3      SECTION 2.  Section 604-10.5, Hawaii Revised Statutes, is
 4 amended by amending subsection (h) to read as follows:
 5      "(h)  A reckless, knowing, or intentional violation of a
 6 restraining order or injunction issued pursuant to this section
 7 is a misdemeanor.  The court shall sentence a violator to
 8 appropriate counseling and shall sentence a person convicted
 9 under this section as follows:
10      (1)  For a violation of an injunction or restraining order
11           that occurs after a conviction for a violation of the
12           same injunction or restraining order, a violator shall
13           be sentenced to a mandatory minimum jail sentence of
14           not less than forty-eight hours; and
15      (2)  For any subsequent violation that occurs after a second
16           conviction for violation of the same injunction or
17           restraining order, the person shall be sentenced to a
18           mandatory minimum jail sentence of not less than thirty
19           days.
20      The court may suspend any jail sentence, except for the
21 mandatory sentences under paragraphs (1) and (2), upon
22 appropriate conditions, such as that the defendant remain alcohol
23 and drug-free, conviction-free, or complete court-ordered

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 1 assessments or counseling.  The court may suspend the mandatory
 2 sentences under paragraphs (1) and (2) where the violation of the
 3 injunction or restraining order does not involve violence or the
 4 threat of violence.  Nothing in this section shall be construed
 5 as limiting the discretion of the judge to impose additional
 6 sanctions authorized in sentencing for a misdemeanor offense."
 7      SECTION 3.  Statutory material to be repealed is bracketed.
 8 New statutory material is underscored.
 9      SECTION 4.  This Act shall take effect on July 1, 1999.
11                           INTRODUCED BY:_________________________