THE SENATE

S.B. NO.

1047

THIRTIETH LEGISLATURE, 2019

 

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 purpose of this Act is to establish a five-year pilot project to strengthen state and county responses to domestic violence and increase offender accountability by:

(1) Amending the offense of abuse of family or household members to provide for a lesser included petty misdemeanor offense and penalties;

(2) Reducing congestion in the court system caused by a backlog of jury trial cases by repealing a provision that would otherwise disqualify persons charged with the misdemeanor offense of abuse of a family or household member in the second degree from receiving a deferred acceptance of guilty plea under certain conditions, 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; and

(3) Requiring data collection and reporting to determine the effectiveness of the pilot project by county police departments, prosecutors, and the judiciary on the number of arrests, charges, and convictions relating to domestic violence.

SECTION 2. 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 officer under subsection (4). The police, 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:

"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 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.

(2) Any police officer, with or without a warrant, may arrest a person if the officer has reasonable grounds 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 officer who has reasonable grounds 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 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 officer shall make reasonable inquiry of the family or household member upon whom the officer believes physical abuse or harm has been inflicted and other witnesses as there may be;

(b) If the person who the police officer reasonably believes to have inflicted the abuse is eighteen years of age or older, the police 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 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 the police officer reasonably believes to have inflicted the abuse is under the age of eighteen, the police 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 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 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 officer reasonably believes the abuse has been inflicted; 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 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 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 officer shall seize all firearms and ammunition that the police officer has reasonable grounds to believe were used or threatened to be used in the commission of an offense under this section.

(5) The 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 to comply with the lawful order of a police officer under subsection (4) are misdemeanors and the person shall be sentenced as follows:

[(a)] (i) For the first offense the person shall serve a minimum jail sentence of forty-eight hours; and

[(b)] (ii) For a second offense that occurs within one year of the first conviction, the person shall be termed a "repeat offender" and serve a minimum jail sentence of thirty days[.]; and

(b) It shall be a petty misdemeanor for a person to intentionally or knowingly strike, shove, kick, or otherwise touch a family or household member in an offensive manner or subject the family member or household member to offensive physical contact; and the person shall be sentenced as provided in sections 706-640 and 706-663; provided that the court shall not defer accepting the plea of nolo contendere under section 853-1 for any offense under this subsection.

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.

(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 amend the defendant's sentence to the maximum term of incarceration and, if applicable, set aside a deferred acceptance of guilty plea or nolo contendere plea granted under chapter 853, if:

(a) The defendant fails to complete the domestic violence intervention program or parenting classes, if applicable; provided that after hearing all the relevant evidence, the court finds that the defendant has failed to show good cause why the defendant has not timely completed the domestic violence intervention program or parenting classes; or

(b) The defendant violates any other condition of a sentence imposed pursuant to chapter 853, if applicable.

However, the court may suspend any portion of a jail sentence, except for the mandatory sentences under subsection [(5)(a) and (b),] (5)(a)(i) and (ii), 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) Any police officer who arrests a person pursuant to this section shall not be subject to any civil or criminal liability; provided that the police officer acts in good faith, upon reasonable belief, and does not exercise unreasonable force in effecting the arrest.

(11) 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) 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) 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) 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) 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) When a person is ordered by the court to undergo any domestic violence intervention, that person shall provide adequate proof of compliance with the court's order. The court shall order a subsequent hearing at which the person is required to make an appearance, on a date certain, to determine whether the person has completed the ordered domestic violence intervention. The court may waive the subsequent hearing and appearance where a court officer has established that the person has completed the intervention ordered by the court.

(17) Notwithstanding any provision of law to the contrary, the court may accept a deferred plea pursuant to chapter 853 for misdemeanor or petty misdemeanor offenses of abuse of a family or household member when the defendant:

(a) Has no prior conviction; or

(b) Has not been previously granted deferred acceptance of guilty plea or nolo contendere plea status,

for any offense under this section within the previous five years."

SECTION 3. 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 offenses described in section 709‑906(17);

(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 4. No later than twenty days prior to the convening of the regular sessions of 2020, 2021, 2022, 2023, and 2024, the judiciary shall submit a report to the legislature that includes:

(1) The number of persons arrested by each county police department for misdemeanor and petty misdemeanor abuse of family or household members, the number of arrests for each offense that were transferred to the respective county prosecutor's office by the police department, the number of arrests still under investigation, and the number of cases closed by the police department; provided that each county police department shall submit this information to the judiciary no later than forty days prior to the convening of each regular session;

(2) For cases referred to the respective county prosecutor's office, the number of abuse of family or household members cases in which the offender was charged with an offense under section 709-906, Hawaii Revised Statutes; the number of cases in which the offender was charged with a different offense, by category; the number of cases referred to the respective police department; the number of cases in which prosecution was not pursued; and the number of cases in which the defendant moved for deferred acceptance of a guilty plea; provided that the department of the prosecuting attorney of the city and county of Honolulu, prosecuting attorney's office of the county of Hawaii, office of the prosecuting attorney of the county of Kauai, and department of the prosecuting attorney of the county of Maui shall submit this information to the judiciary no later than forty days prior to the convening of each regular session; and

(3) For cases filed with the judiciary involving offenses under section 709-906, Hawaii Revised Statutes, the outcome of each case, including the number of cases dismissed, by category; the number found not guilty; the number found guilty; and other outcomes, by category; provided that, in addition, in cases in which an offender was required to complete a domestic violence intervention program, the report shall include the number of cases in which the program was completed or not completed and the consequences for failure to complete the program, by category.

SECTION 5. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 7. This Act shall take effect upon its approval, and shall be repealed on June 30, 2024; provided that sections 709-906 and 853-4, Hawaii Revised Statutes, shall be reenacted in the form in which they read on the day prior to the effective date of this Act.

 

INTRODUCED BY:

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Report Title:

Abuse of Family or Household Members; Penalties; Degrees of Offense; Protective Orders; Enforcement; Pilot Project

 

Description:

Amends the offense of abuse of family or household members to provide for misdemeanor and petty misdemeanor penalties. Allows the granting of a deferred acceptance of guilty plea in cases involving misdemeanor and petty misdemeanor abuse of a family or household member if certain conditions are met. Requires the judiciary to submit annual reports to the legislature on the number and outcome of abuse of family or household members cases. Repeals June 30, 2024.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.