AN ACT CONCERNING DOMESTIC VIOLENCE.

It expands the circumstances under which a court may issue a standing criminal restraining order.

It establishes release procedures for police officers to follow when someone is arrested for committing a family violence crime. The bill absolves police officers of liability in any civil action for personal or property injuries resulting from the release conditions.

It makes family violence arrestees guilty of a crime if they intentionally violate a nonfinancial condition of release set by a police officer. It increases the penalty for violation of release conditions for anyone who is arrested for committing a felony and intentionally violates a nonfinancial condition of release set by a bail commissioner or court.

The bill allows law enforcement officers to seize any electronic defense weapon that is in plain view or possessed by the arrestee at a family violence crime site. They can already seize firearms. Just as with firearms, the bill requires the officers to return the weapons within seven days to their lawful owners if they are eligible to possess them and a court has not ordered otherwise.

Lastly, the bill specifies that stun guns and other conductive energy devices are types of electronic defense weapons. By law, it is illegal for anyone, other than a peace officer on official duty, to possess or carry these weapons in a motor vehicle or on his or her person.

*House Amendment “A” (1) requires police officers to immediately attempt to contact a bail commissioner after a family violence arrest, (2) gives the police options with respect to the arrestee's release when the commissioner is unavailable or cannot be contacted, (3) specifies that a person may be charged with violating bail conditions for a motor vehicle offense only if the offense carries a term of imprisonment, and (4) makes technical changes.

*House Amendment “B” authorizes police officers to release a family violence arrestee on a promise to appear before the duty to contact a bail commissioner attaches.

The bill makes a person guilty of 2^nd degree strangulation when he or she intentionally and actually impedes another person's breathing or blood circulation by restraining the person by the throat or neck. The crime is a class D felony, punishable by up to five years in prison, a $ 5,000 fine, or both.

A person commits 1^st degree strangulation if he or she (1) is a repeat offender of 2^nd degree strangulation or (2) commits 2^nd degree strangulation and either causes serious physical injury or uses or attempts to use a dangerous instrument. This crime is a class C felony, punishable by up to 10 years in prison, a $ 10,000 fine, or both.

A person commits 3^rd degree strangulation if he or she recklessly restrains another person by the throat or neck and impedes the person's breathing or blood circulation. This crime is a class A misdemeanor, punishable by up to one year in prison, a $ 2,000 fine, or both.

Under the bill, no one can be found guilty of strangulation and 1^st or 2^nd degree unlawful restraint or assault for the same incident; however, the person may be charged with all three crimes in the same information (charging document). “Assault” means:

1. 1^st, 2^nd, and 3^rd degree assault;

2. 1^st and 2^nd degree assault of a person who is aged, blind, disabled, pregnant, or mentally retarded;

3. 2^nd degree assault with a firearm;

4. 1^st degree assault of a Department of Correction employee;

5. assault of a pregnant woman; and

6. assault with a motor vehicle.

By law, courts can issue these orders, in addition to the sentence authorized by law, in certain criminal cases to protect crime victims from future harm. The orders may, among other things, prohibit the offender from restraining, threatening, harassing, assaulting, molesting, sexually assaulting, or attacking the victim, or entering the victim's home. The criminal cases covered are those involving the commission of, or attempt or conspiracy to commit:

1. murder;

2. 1^st and 2^nd degree assault;

3. 1^st and 2^nd degree assault of an aged, blind, disabled, pregnant, or mentally retarded person;

4. 2^nd and 3^rd degree assault with a firearm;

5. 2^nd degree assault with a firearm of an aged, blind, disabled, pregnant, or mentally retarded person;

6. 1^st, 2^nd, and 3^rd degree sexual assault;

7. aggravated 1^st degree sexual assault;

8. sexual assault in a spousal or cohabitating relationship;

9. stalking; and

10. criminal violation of a protective order.

Before issuing the order, the court must find that the (1) victim is a member of the offender's family or household member and (2) order will best serve the victim' and the public's interest given the history, character, nature, and circumstances of the crime. The orders are effective until a court modifies or revokes them for good cause. Violation of a standing criminal restraining order is punishable by up to five years in prison, a $ 5,000 fine, or both.

The bill permits the court to issue the order under the same conditions stated above when a person is convicted of attempting or conspiring to commit:

1. 1^st or 2^nd degree harassment,

2. criminal violation of a restraining order,

3. criminal violation of a standing criminal restraining order, or

4. a family violence crime (see BACKGROUND).

The bill also permits a court to issue a standing criminal restraining order when a person is convicted of any crime against a family or household member, rather than just the ones listed. In these cases, the court may issue the order for good cause shown and does not have to find the order to be in the best interest of the victim or the public. “Family or household members” are spouses, former spouses, parents and their children, people age 18 or older related by blood or marriage, people age 16 or older either living together or who have lived together, people who have a child together, and people in, or who once were in, a dating relationship.

By law, when a person is taken into custody for a bailable family violence offense and a court has not ordered otherwise, a police officer must interview the person and then determine the terms and conditions of release and release anyone who posts a bond in an amount the officer sets. If the person cannot post bail, the officer notifies the bail commissioner, who determines the appropriate bail.

The bill prohibits any statement an arrestee makes in a bail interview from being admitted as evidence in any proceeding related to the incident for which bail was set.

The bill permits a police officer to release anyone arrested for a family violence crime on a written promise to appear. If the officer does not release the arrestee, he or she must make reasonable efforts to immediately contact a bail commissioner to set the conditions of release. If the officer is unable to contact a bail commissioner or the commissioner is unavailable to promptly perform his duties, the police officer must (1) release the arrestee on a written promise to appear, (2) set a bond amount and release any arrestee who posts it, or (3) set nonfinancial release conditions that require an arrestee to:

1. avoid all contact with the alleged victim;

2. comply with any restrictions on travel, associations, or living accommodations that directly relate to the victim's protection; or

3. refrain from using or possessing a dangerous weapon, intoxicant, or controlled substance.

Each officer must state, and swear to, these nonfinancial conditions of release on a form prescribed by the Judicial Branch. The form must also state (1) the officer's efforts to contact a bail commissioner, (2) the officer's basis for imposing specific conditions, and (3) whether a translation service or an interpreter was used to communicate with a non-English-speaking arrestee.

The arrestee must immediately receive a copy of the bail conditions and a copy of the entire form must be provided to his or her attorney at arraignment. The conditions are effective until the arrestee is arraigned, at which time the court must determine whether to issue a protective order. The bill requires the court to “conduct a hearing” at which defendants have a right to be heard “with respect to the issuance of protective orders” (see COMMENT).

Under current law, a person charged with a felony, misdemeanor, or certain motor vehicle offenses violates a condition of release when he or she intentionally contacts a crime victim or uses or possesses a dangerous weapon in violation of his or her release conditions. The crime covers motor vehicle violations that subject offenders to a term of imprisonment. The crime is a class A misdemeanor (see penalty above).

The bill separates the crime into two. It makes it 2^nd degree violation of release conditions for a person (1) charged with a misdemeanor or motor vehicle violation that carries a term of imprisonment and (2) released on nonfinancial conditions set by a bail commissioner, court, or police officer in family violence cases to intentionally violate one or more of the conditions. This crime is a class A misdemeanor (see penalty above). The bill makes it 1^st degree violation of release conditions and increases the penalty by changing the classification to a D felony if the arrestee is charged with a felony.

A “family violence crime” is an incident between family or household members that either causes physical injury or creates fear that physical injury is about to occur, but does not include verbal abuse or arguments.

An electronic defense weapon is one capable of immobilizing, but not killing or seriously injuring, a person through the use of an electronic impulse or current.

Restraining and protective orders are court-issued, civil and criminal orders, respectively, typically issued to protect victims of family violence crimes from threatened or further harm. These orders may, among other things, prohibit the respondents from restraining, threatening, harassing, assaulting, molesting, sexually assaulting, or attacking the victim, or entering the victim's home. Restraining orders are generally effective for six months. Protective orders are a condition of bail or other release from custody.

The bill requires the court to “conduct a hearing” at which defendants have a right to be heard “with respect to the issuance of protective orders. ” However, these orders are, by law, issued as a condition of bail or release.

Yea

Nay

(04/12/2007)

Yea

Nay

(05/08/2007)