HB 176: RELATING TO DOMESTIC ABUSE PROTECTIVE ORDERS.

A BILL FOR AN ACT

relating to Domestic abuse protective orders.

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

     SECTION 1.  Section 586-4, Hawaii Revised Statutes, is amended by amending subsection (e) to read as follows:

     "(e)  When a temporary restraining order is granted and the respondent or person to be restrained knows of the order, a knowing or intentional violation of the restraining order is a misdemeanor.  A person convicted under this section shall be ordered by the court to complete an assessment at any available domestic violence program and shall complete a domestic violence intervention or anger management course as determined by the domestic violence program.  The court additionally shall sentence a person convicted under this section as follows:

     (1)  Except as provided in paragraph (2), for a first conviction for a violation of the temporary restraining order, the person shall serve a mandatory minimum jail sentence of [forty-eight hours] fifteen days and be fined no less than [$150] $300 nor more than $500;

     (2)  For a first conviction for a violation of the temporary restraining order, if the person has a prior conviction for any of the following felonies:

          (A)  Section 707-701 relating to murder in the first degree;

          (B)  Section 707-701.5 relating to murder in the second degree;

          (C)  Section 707-710 relating to assault in the first degree;

          (D)  Section 707-711 relating to assault in the second degree;

          (E)  Section 707-720 relating to kidnapping;

          (F)  Section 707-721 relating to unlawful imprisonment in the first degree;

          (G)  Section 707-730 relating to sexual assault in the first degree;

          (H)  Section 707-731 relating to sexual assault in the second degree;

          (I)  Section 707-732 relating to sexual assault in the third degree;

          (J)  Section 707-733.6 relating to continuous sexual assault of a minor under the age of fourteen years;

          (K)  Section 707-750 relating to promoting child abuse in the first degree;

          (L)  Section 708-810 relating to burglary in the first degree;

          (M)  Section 708-811 relating to burglary in the second degree;

          (N)  Section 709-906 relating to abuse of family or household members; or

          (O)  Section 711-1106.4 relating to aggravated harassment by stalking;

          and if any of these offenses has been committed against a family or household member as defined in section 586-1, the person shall serve a mandatory minimum term of imprisonment of [fifteen] thirty days and be fined no less than [$150] $350 nor more than $600; and

     (3)  For the second and any subsequent conviction for a violation of the temporary restraining order, the person shall serve a mandatory minimum jail sentence of [thirty] forty-five days and be fined no less than [$250] $500 nor more than $1,000;

provided that the court shall not sentence a defendant to pay a fine [unless] if, after conducting a financial review, the court determines the defendant is or will be [able] unable to pay the fine.

     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.

     The court may suspend any jail sentence, except for the mandatory sentences under paragraphs (1), (2), and (3) upon condition that the defendant remain alcohol- and drug-free, conviction-free, [or] and complete court-ordered assessments or intervention.  Nothing in this section shall be construed as limiting the discretion of the judge to impose additional sanctions authorized in sentencing for a misdemeanor."

     SECTION 2.  Section 586-11, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  Whenever an order for protection is granted pursuant to this chapter, a respondent or person to be restrained who knowingly or intentionally violates the order for protection shall be guilty of a misdemeanor.  A person convicted under this section shall be ordered by the court to complete an assessment at any available domestic violence program and shall complete a domestic violence intervention or anger management course as determined by the domestic violence program.  The court additionally shall sentence a person convicted under this section as follows:

     (1)  For a first conviction for violation of the order for protection[:

          (A)  That is in the nature of non-domestic abuse, the person may be sentenced to a jail sentence of forty-eight hours and be fined no more than $150; or

          (B)  That is in the nature of domestic abuse], the person shall be sentenced to a mandatory minimum jail sentence of no less than [forty-eight hours] thirty days and be fined no less than [$150] $300 nor more than $500;

     (2)  For [a] the second and any subsequent conviction for violation of the order for protection[:

          (A)  That is in the nature of non-domestic abuse, and occurs after a first conviction for violation of the same order that was in the nature of non-domestic abuse, the person shall be sentenced to a mandatory minimum jail sentence of no less than forty-eight hours and be fined no more than $250;

          (B)  That is in the nature of domestic abuse, and] that occurs after a first conviction for violation of the same order [that was in the nature of domestic abuse,] or conviction for a violation of the temporary restraining order as defined in section 586-4(e), the person shall be sentenced to a mandatory minimum jail sentence of no less than [thirty] forty-five days and be fined no less than [$250] $500 nor more than $1,000;

         [(C)  That is in the nature of non-domestic abuse, and occurs after a first conviction for violation of the same order that was in the nature of domestic abuse, the person shall be sentenced to a mandatory minimum jail sentence of no less than forty-eight hours and be fined no more than $250; or

          (D)  That is in the nature of domestic abuse, and occurs after a first conviction for violation of the same order that is in the nature of non-domestic abuse, the person shall be sentenced to a mandatory minimum jail sentence of no less than forty-eight hours and be fined no more than $150; and

     (3)  For any subsequent violation that occurs after a second conviction for violation of the same order for protection, the person shall be sentenced to a mandatory minimum jail sentence of not less than thirty days and be fined not less than $250 nor more than $1,000;]

provided that the court shall not sentence a defendant to pay a fine [unless] if, after conducting a financial review, the court determines the defendant is or will be [able] unable to pay the fine.

     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.

     The court may suspend any jail sentence under subparagraphs (1)(A) and (2)(C), upon condition that the defendant remain alcohol- and drug-free, conviction-free, [or] and complete court-ordered assessments or intervention.  Nothing in this section shall be construed as limiting the discretion of the judge to impose additional sanctions authorized in sentencing for a misdemeanor offense.  All remedies for the enforcement of judgments shall apply to this chapter."

     SECTION 3.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 4.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 5.  This Act shall take effect upon its approval.

Report Title:

Temporary Restraining Order; Order for Protection; Penalties

Amends:

Increases the penalties imposed on individuals convicted for violation of a temporary restraining order and order for protection.  Clarifies that the court shall not sentence a defendant to pay a fine for violating a temporary restraining order or order for protection if, after conducting a financial review, the court determines the defendant is or will be unable to pay the fine.  Specifies that the court may suspend certain jail sentence for violation of a temporary restraining order or order for protection upon condition that the defendant remain alcohol- and drug-free, conviction-free, and complete court-ordered assessments or intervention.

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