PA 07-123—sHB 7313
Judiciary Committee
Public Safety and Security Committee
AN ACT CONCERNING DOMESTIC VIOLENCE
SUMMARY: This act establishes three new crimes of strangulation.
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 act 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 act 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 already can seize firearms. Just as with firearms, the act 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 act 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 carry these weapons in a motor vehicle or on his or her person.
EFFECTIVE DATE: October 1, 2007
STRANGULATION
The act makes a person guilty of 2nd 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 (see Table on Penalties).
A person commits 1st degree strangulation, a class C felony, if he or she (1) is a repeat offender of 2nd degree strangulation or (2) commits 2nd degree strangulation and either causes serious physical injury or uses or attempts to use a dangerous instrument.
A person commits 3rd degree strangulation, a class A misdemeanor, if he or she recklessly restrains another person by the throat or neck and impedes the person's breathing or blood circulation.
Under the act, no one can be found guilty of strangulation and 1st or 2nd 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. 1st, 2nd, and 3rd degree assault;
2. 1st and 2nd degree assault of a person who is aged, blind, disabled, pregnant, or mentally retarded;
3. 2nd degree assault with a firearm;
4. 1st degree assault of a Department of Correction employee;
5. assault of a pregnant woman; or
6. assault with a motor vehicle.
STANDING CRIMINAL RESTRAINING ORDER
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. 1st and 2nd degree assault;
3. 1st and 2nd degree assault of an aged, blind, disabled, pregnant, or mentally retarded person;
4. 2nd and 3rd degree assault with a firearm;
5. 2nd degree assault with a firearm of an aged, blind, disabled, pregnant, or mentally retarded person;
6. 1st, 2nd, and 3rd degree sexual assault;
7. aggravated 1st 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's 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 act 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. 1st or 2nd 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 act 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.
RELEASE OF FAMILY VIOLENCE CRIME ARRESTEES
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.
Bail Statements
The act 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.
Release Procedure
If a person is arrested for a family violence offense and the police officer does not intend to impose certain specified conditions of release (see below), the act requires the police officer to (1) release the arrestee on a written promise to appear or (2) set a bond amount and release any arrestee who posts it.
If the arrestee is not released, the act requires the police officer to 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 or (2) set a bond amount and release any arrestee who posts it. The officer may 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 also must 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 an arrestee who does not speak English.
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 after conducting a hearing at which defendants have a right to be heard.
Penalties for Violating Bail Conditions
The act broadens the acts that constitute violations of release conditions and increases the penalty for the more serious offenses. Under prior law, a person charged with a felony, misdemeanor, or certain motor vehicle offenses violated a condition of release when he or she intentionally contacted a crime victim or used or possessed a dangerous weapon in violation of his or her release conditions. The crime covered motor vehicle violations that subject offenders to a term of imprisonment. The crime was a class A misdemeanor.
The act makes it 2nd 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. The crime is a class A misdemeanor. The act makes it 1st degree violation of release conditions when an arrestee is charged with a felony and increases the penalty by changing the classification to a D felony.
BACKGROUND
Family Violence Crime
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.
Electronic Defense Weapon
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
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.
OLR Tracking: SNE: KM: PF: RO