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. (SD1)

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


                   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
 
20           person shall serve a mandatory minimum jail sentence of
 

 
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 1           thirty days and be fined not less than $250 nor more
 
 2           than $1,000; provided that the court shall not sentence
 
 3           a defendant to pay a fine unless the defendant is or
 
 4           will be able to pay the fine.  Upon conviction and
 
 5           sentencing of the defendant, the court shall order that
 
 6           the defendant immediately be incarcerated to serve the
 
 7           mandatory minimum sentence imposed; provided that the
 
 8           defendant may be admitted to bail pending appeal
 
 9           pursuant to chapter 804.  The court may stay the
 
10           imposition of the sentence if special circumstances
 
11           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." SECTION 2.  Section 586-5.5, Hawaii Revised
 
19 Statutes, is amended to read as follows:
 
20      "§586-5.5  Protective order; additional orders.(a)  If
 
21 after hearing all relevant evidence, the court finds that the
 
22 respondent has failed to show cause why the order should not be
 

 
 
 
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 1 continued and that a protective order is necessary to prevent
 
 2 domestic abuse or a recurrence of abuse, the court may order that
 
 3 a protective order be issued for such further period as the court
 
 4 deems appropriate, not to exceed three years from the date the
 
 5 protective order is granted.
 
 6      The protective order may include all orders stated in the
 
 7 temporary restraining order and may provide for further relief as
 
 8 the court deems necessary to prevent domestic abuse or a
 
 9 recurrence of abuse, including orders establishing temporary
 
10 visitation and custody with regard to minor children of the
 
11 parties and orders to either or both parties to participate in
 
12 domestic violence intervention services.  If the court finds that
 
13 the party meets the requirements under section 334-59(a)(2), the
 
14 court further may order that the party be taken to the nearest
 
15 facility for emergency examination and treatment.
 
16      (b)  A protective order may be extended for a period not to
 
17 exceed three years from the expiration of the preceding
 
18 protective order.  Upon application by a person or agency capable
 
19 of petitioning under section 586-3, the court shall hold a
 
20 hearing to determine whether the protective order should be
 
21 extended.  In making a determination, the court shall consider
 
22 evidence of abuse and threats of abuse that occurred prior to the
 

 
 
 
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 1 initial restraining order and whether good cause exists to extend
 
 2 the protective order.
 
 3      The extended protective order may include all orders stated
 
 4 in the preceding restraining order and may provide such further
 
 5 relief as the court deems necessary to prevent domestic abuse or
 
 6 a recurrence of abuse, including orders establishing temporary
 
 7 visitation and custody with regard to minor children of the
 
 8 parties and orders to either or both parties to participate in
 
 9 domestic violence intervention services.  The court may terminate
 
10 the extended protective order at any time with the mutual consent
 
11 of the parties.
 
12      (c)  When a protective order is granted pursuant to this
 
13 chapter and the respondent or person to be restrained knows of
 
14 the order, a knowing or intentional violation of the restraining
 
15 order is a misdemeanor.  A person convicted under this section
 
16 shall undergo domestic violence intervention at any available
 
17 domestic violence program as ordered by the court.  The court
 
18 additionally shall sentence a person convicted under this section
 
19 as follows:
 
20      (1)  For a first conviction for violation of the protective
 
21           order, the person shall serve a mandatory minimum jail
 
22           sentence of forty-eight hours and be fined not less
 
23           than $150 nor more than $500; provided that the court
 

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

 
 
 
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 1      (d)  Any fines collected pursuant to subsection (c) shall be
 
 2 deposited into the spouse and child abuse special account
 
 3 established under section 601-3.6."
 
 4      SECTION 3.  Section 580-10, Hawaii Revised Statutes, is
 
 5 amended to read as follows:
 
 6      "§580-10  Restraining orders; appointment of master.(a)
 
 7 When a complaint for annulment, divorce, or separation, is filed
 
 8 in this State, the court, on an application by either party,
 
 9 supported by affidavit or a statement made under penalty of
 
10 perjury, without a hearing, may enjoin and restrain each of the
 
11 parties to that action from transferring, encumbering, wasting,
 
12 or otherwise disposing of any of their property, whether real,
 
13 personal, or mixed, over and above current income, except as
 
14 necessary for the ordinary course of a business or for usual
 
15 current living expenses, without the consent and concurrence of
 
16 the other party to such action for divorce, or further specific
 
17 order of the court.  Where such restraining orders are issued
 
18 against the other party to the action, such person shall be
 
19 served promptly with the order and shall be entitled to a prompt
 
20 hearing to show cause why such order should not be enforced.
 
21      (b)  In all actions for annulment, divorce, or separation,
 
22 the court shall have the power to issue such restraining orders
 
23 against a person or persons not a party to the action, as shall
 
24 be reasonably required during the pendency of such action, to
 

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

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

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

 
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 1           as limiting the discretion of the judge to impose
 
 2           additional sanctions authorized in sentencing for a
 
 3           misdemeanor offense.  [All remedies for the enforcement
 
 4           of judgments, equitable as well as legal, including
 
 5           civil contempt, shall apply to this section.]
 
 6      (2)  Any law enforcement officer shall enforce a restraining
 
 7           order issued pursuant to this subsection, including
 
 8           lawfully ordering the restrained party to voluntarily
 
 9           leave for a three-hour cooling off period, or, with or
 
10           without a warrant, where the law enforcement officer
 
11           has reasonable grounds to believe that the restrained
 
12           party has violated the restraining order, arresting the
 
13           restrained party. 
 
14      (e)  Any fines collected pursuant to subsection (d) shall be
 
15 deposited into the spouse and child abuse special account
 
16 established under section 601-3.6."
 
17      SECTION 4.  Statutory material to be repealed is bracketed.
 
18 New statutory material is underscored.
 
19      SECTION 5.  This Act shall take effect upon its approval.