REPORT TITLE:
Restraining/Protective Orders


DESCRIPTION:
Providing uniform sentences upon a violation of a temporary
restraining order, protective order, or restraining order upon
divorce or annulment. (CD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        590
THE SENATE                              S.B. NO.           S.D. 1
TWENTIETH LEGISLATURE, 1999                                H.D. 1
STATE OF HAWAII                                            C.D. 1
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO RESTRAINING AND PROTECTIVE ORDERS.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  Section 586-4, Hawaii Revised Statutes, is
 
 2 amended by amending subsection (c) to read as follows:
 
 3      "(c)  When a temporary restraining order is granted pursuant
 
 4 to this chapter and the respondent or person to be restrained
 
 5 knows of the order, a knowing or intentional violation of the
 
 6 restraining order is a misdemeanor.  A person convicted under
 
 7 this section shall undergo domestic violence intervention at any
 
 8 available domestic violence program as ordered by the court.  The
 
 9 court additionally shall sentence a person convicted under this
 
10 section as follows:
 
11      (1)  For a first conviction for violation of the temporary
 
12           restraining order, the person shall serve a mandatory
 
13           minimum jail sentence of forty-eight hours and be fined
 
14           not less than $150 nor more than $500; provided that
 
15           the court shall not sentence a defendant to pay a fine
 
16           unless the defendant is or will be able to pay the
 
17           fine; and
 
18      (2)  For the second and any subsequent conviction for
 
19           violation of the temporary restraining order, the
 

 
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 1           person shall serve a mandatory minimum jail sentence of
 
 2           thirty days and be fined not less than $250 nor more
 
 3           than $1,000; provided that the court shall not sentence
 
 4           a defendant to pay a fine unless the defendant is or
 
 5           will be able to pay the fine.
 
 6      Upon conviction and sentencing of the defendant, the court
 
 7 shall order that the defendant immediately be incarcerated to
 
 8 serve the mandatory minimum sentence imposed; provided that the
 
 9 defendant may be admitted to bail pending appeal pursuant to
 
10 chapter 804.  The court may stay the imposition of the sentence
 
11 if special circumstances exist.
 
12      The court may suspend any jail sentence, except for the
 
13 mandatory sentences under paragraphs (1) and (2), upon condition
 
14 that the defendant remain alcohol and drug-free, conviction-free,
 
15 or complete court-ordered assessments or intervention.  Nothing
 
16 in this section shall be construed as limiting the discretion of
 
17 the judge to impose additional sanctions authorized in sentencing
 
18 for a misdemeanor."
 
19      SECTION 2.  Section 586-11, Hawaii Revised Statutes, is
 
20 amended to read as follows:
 
21      "586-11  Violation of an order for protection.  (a)
 
22 Whenever an order for protection is granted pursuant to this
 
23 chapter, a respondent or person to be restrained who knowingly or
 

 
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 1 intentionally violates the order for protection is guilty of a
 
 2 misdemeanor.  [The court shall sentence a violator to appropriate
 
 3 counseling and shall sentence a person convicted under this
 
 4 section as follows:]  A person convicted under this section shall
 
 5 undergo domestic violence intervention at any available domestic
 
 6 violence program as ordered by the court.  The court additionally
 
 7 shall sentence a person convicted under this section as follows:
 
 8      (1)  For a first conviction for violation of the order for
 
 9           protection:
 
10           (A)  That is in the nature of non-domestic abuse, [a
 
11                violator] the person may be sentenced to a jail
 
12                sentence of forty-eight hours and be fined not
 
13                more than $150; provided that the court shall not
 
14                sentence a defendant to pay a fine unless the
 
15                defendant is or will be able to pay the fine;
 
16           (B)  That is in the nature of domestic abuse, [a
 
17                violator] the person shall be sentenced to a
 
18                mandatory minimum jail sentence of not less than
 
19                forty-eight hours and be fined not less than $150
 
20                nor more than $500; provided that the court shall
 
21                not sentence a defendant to pay a fine unless the
 
22                defendant is or will be able to pay the fine;
 
23      (2)  For a second conviction for violation of the order for
 

 
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 1           protection:
 
 2           (A)  That is in the nature of non-domestic abuse, and
 
 3                occurs after a first conviction for violation of
 
 4                the same order that was in the nature of non-
 
 5                domestic abuse, [a violator] the person shall be
 
 6                sentenced to a mandatory minimum jail sentence of
 
 7                not less than forty-eight hours and be fined not
 
 8                more than $250; provided that the court shall not
 
 9                sentence a defendant to pay a fine unless the
 
10                defendant is or will be able to pay the fine;
 
11           (B)  That is in the nature of domestic abuse, and
 
12                occurs after a first conviction for violation of
 
13                the same order that was in the nature of domestic
 
14                abuse, [a violator] the person shall be sentenced
 
15                to a mandatory minimum jail sentence of not less
 
16                than thirty days and be fined not less than $250
 
17                nor more than $1,000; provided that the court
 
18                shall not sentence a defendant to pay a fine
 
19                unless the defendant is or will be able to pay the
 
20                fine;
 
21           (C)  That is in the nature of non-domestic abuse, and
 
22                occurs after a first conviction for violation of
 
23                the same order that was in the nature of domestic
 

 
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 1                abuse, [a violator] the person shall be sentenced
 
 2                to a mandatory minimum jail sentence of not less
 
 3                than forty-eight hours[, unless the court, in
 
 4                writing, finds that the violation does not warrant
 
 5                a jail sentence and provides the reasons for its
 
 6                decision] and be fined not more than $250;
 
 7                provided that the court shall not sentence a
 
 8                defendant to pay a fine unless the defendant is or
 
 9                will be able to pay the fine;
 
10           (D)  That is in the nature of domestic abuse, and
 
11                occurs after a first conviction for violation of
 
12                the same order that is in the nature of non-
 
13                domestic abuse, [a violator] the person shall be
 
14                sentenced to a mandatory minimum jail sentence of
 
15                not less than forty-eight hours and be fined not
 
16                more than $150; provided that the court shall not
 
17                sentence a defendant to pay a fine unless the
 
18                defendant is or will be able to pay the fine;
 
19      (3)  For any subsequent violation that occurs after a second
 
20           conviction for violation of the same order for
 
21           protection, [the court shall impose] the person shall
 
22           be sentenced to a mandatory minimum jail sentence of
 
23           not less than thirty days [imprisonment] and be fined
 

 
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 1           not less than $250 nor more than $1,000; provided that
 
 2           the court shall not sentence a defendant to pay a fine
 
 3           unless the defendant is or will be able to pay the
 
 4           fine.
 
 5      Upon conviction and sentencing of the defendant, the court
 
 6 shall order that the defendant immediately be incarcerated to
 
 7 serve the mandatory minimum sentence imposed; provided that the
 
 8 defendant may be admitted to bail pending appeal pursuant to
 
 9 chapter 804.  The court may stay the imposition of the sentence
 
10 if special circumstances exist.
 
11      The court may suspend any jail sentence under subparagraphs
 
12 (1)(A) and (2)(C), upon [appropriate conditions] condition [such
 
13 as] that the defendant remain alcohol and drug-free, conviction-
 
14 free, or complete court-ordered assessments or [counseling]
 
15 intervention.  Nothing in this section shall be construed as
 
16 limiting the discretion of the judge to impose additional
 
17 sanctions authorized in sentencing for a misdemeanor offense.
 
18 All remedies for the enforcement of judgments shall apply to this
 
19 chapter.
 
20      (b)  Any fines collected pursuant to subsection (a) shall be
 
21 deposited into the spouse and child abuse special account
 
22 established under section 601-3.6."
 
23      SECTION 3.  Section 580-10, Hawaii Revised Statutes, is
 

 
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 1 amended to read as follows:
 
 2      "580-10  Restraining orders; appointment of master.(a)
 
 3 When a complaint for annulment, divorce, or separation, is filed
 
 4 in this State, the court, on an application by either party,
 
 5 supported by affidavit or a statement made under penalty of
 
 6 perjury, without a hearing, may enjoin and restrain each of the
 
 7 parties to that action from transferring, encumbering, wasting,
 
 8 or otherwise disposing of any of their property, whether real,
 
 9 personal, or mixed, over and above current income, except as
 
10 necessary for the ordinary course of a business or for usual
 
11 current living expenses, without the consent and concurrence of
 
12 the other party to such action for divorce, or further specific
 
13 order of the court.  Where such restraining orders are issued
 
14 against the other party to the action, such person shall be
 
15 served promptly with the order and shall be entitled to a prompt
 
16 hearing to show cause why such order should not be enforced.
 
17      (b)  In all actions for annulment, divorce, or separation,
 
18 the court shall have the power to issue such restraining orders
 
19 against a person or persons not a party to the action, as shall
 
20 be reasonably required during the pendency of such action, to
 
21 preserve the estates of the parties.  Where such restraining
 
22 orders are issued against a person or persons not a party to the
 
23 action, such persons shall be promptly served with the order and
 

 
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 1 shall be entitled to a prompt hearing within a reasonable time to
 
 2 show cause why such order should not be enforced.
 
 3      (c)  In all actions for annulment, divorce, or separation,
 
 4 the court shall have the power to appoint a master, or masters,
 
 5 to make preliminary findings and to report to the court on any
 
 6 issue.  The written reports of a master shall be available to
 
 7 interested parties and may be received in evidence if no
 
 8 objection is made; or if objection is made, may be received in
 
 9 evidence provided the person or persons responsible for the
 
10 reports are available for cross-examination as to any matter
 
11 contained therein.  When a report is received in evidence, any
 
12 party may introduce other evidence supplementing, supporting,
 
13 modifying, or rebutting the whole or any part of the report.
 
14      (d)  Whenever it is made to appear to the court after the
 
15 filing of any complaint, that there are reasonable grounds to
 
16 believe that a party thereto may inflict physical abuse upon,
 
17 threaten by words or conduct, or harass the other party, the
 
18 court may issue a restraining order to prevent such physical
 
19 abuse, threats, or harassment, and shall enjoy in respect thereof
 
20 the powers pertaining to a court of equity.  Where necessary, the
 
21 order may require either or both of the parties involved to leave
 
22 the marital residence during the period of the order, and may
 
23 also restrain the party to whom it is directed from contacting,
 

 
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 1 threatening, or physically abusing the children or other relative
 
 2 of the spouse who may be residing with that spouse at the time of
 
 3 the granting of the restraining order.  The order may also
 
 4 restrain a party's agents, servants, employees, attorneys, or
 
 5 other persons in active concert or participation with the
 
 6 respective party.
 
 7      (1)  A knowing or intentional violation of a restraining
 
 8           order issued pursuant to this section is a misdemeanor.
 
 9           [The court shall sentence a violator to appropriate
 
10           counseling and shall sentence a person convicted under
 
11           this section as follows:]  A person convicted under
 
12           this section shall undergo domestic violence
 
13           intervention at any available domestic violence program
 
14           as ordered by the court.  The court additionally shall
 
15           sentence a person convicted under this section as
 
16           follows:
 
17           (A)  For a first conviction for violation of the
 
18                restraining order, the person shall serve a
 
19                mandatory minimum jail sentence of forty-eight
 
20                hours[;] and be fined not less than $150 nor more
 
21                than $500; provided that the court shall not
 
22                sentence a defendant to pay a fine unless the
 
23                defendant is or will be able to pay the fine; and
 

 
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 1           (B)  For the second and any subsequent conviction for
 
 2                violation of the restraining order, the person
 
 3                shall serve a mandatory minimum jail sentence of
 
 4                thirty days[.] and be fined not less than $250 nor
 
 5                more than $1,000; provided that the court shall
 
 6                not sentence a defendant to pay a fine unless the
 
 7                defendant is or will be able to pay the fine. 
 
 8      Upon conviction and sentencing of the defendant, the court
 
 9 shall order that the defendant immediately be incarcerated to
 
10 serve the mandatory minimum sentence imposed; provided that the
 
11 defendant may be admitted to bail pending appeal pursuant to
 
12 chapter 804.  The court may stay the imposition of the sentence
 
13 if special circumstances exist.
 
14      The court may suspend any jail sentence, except for the
 
15 mandatory sentences under subparagraphs (A) and (B), upon
 
16 [appropriate conditions such as] condition that the defendant
 
17 remain alcohol and drug-free, conviction-free or complete court-
 
18 ordered assessments or [counseling] intervention.  Nothing in
 
19 this section shall be construed as limiting the discretion of the
 
20 judge to impose additional sanctions authorized in sentencing for
 
21 a misdemeanor offense.  All remedies for the enforcement of
 
22 judgments[, equitable as well as legal, including civil
 
23 contempt,] shall apply to this section.
 

 
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 1      (2)  Any law enforcement officer shall enforce a restraining
 
 2           order issued pursuant to this subsection, including
 
 3           lawfully ordering the restrained party to voluntarily
 
 4           leave for a three-hour cooling off period, or, with or
 
 5           without a warrant, where the law enforcement officer
 
 6           has reasonable grounds to believe that the restrained
 
 7           party has violated the restraining order, arresting the
 
 8           restrained party. 
 
 9      (e)  Any fines collected pursuant to subsection (d) shall be
 
10 deposited into the spouse and child abuse special account
 
11 established under section 601-3.6."
 
12      SECTION 4.  Section 601-3.6, Hawaii Revised Statutes, is
 
13 amended by amending subsection (c) to read as follows:
 
14      "(c)  The account shall consist of fees remitted pursuant to
 
15 sections 338-14.5 and 572-5, fines collected pursuant to
 
16 [section] sections 586-4(c), 580-10, and 586-11, interest and
 
17 investment earnings, grants, donations, and contributions from
 
18 private or public sources.  All realizations of the account shall
 
19 be subject to the conditions specified in subsection (b)."
 
20      SECTION 5.  Statutory material to be repealed is bracketed.
 
21 New statutory material is underscored.
 
22      SECTION 6.  This Act shall take effect upon its approval.