REFERENCE TITLE: domestic violence; households; treatment programs

 

 

 

 

State of Arizona

House of Representatives

Fifty-third Legislature

Second Regular Session

2018

 

 

HB 2570

 

Introduced by

Representatives Benally: Alston, Blanc, Bolding, Butler, Campbell, Cardenas, Carter, Chávez, Descheenie, Engel, Epstein, Espinoza, Gabaldón, Gonzales, John, Martinez, Navarrete, Peten, Powers Hannley, Saldate, Salman

 

 

AN ACT

 

amending sections 13‑3601 and 13‑3601.01, Arizona Revised Statutes; relating to domestic violence.

 

 

(TEXT OF BILL BEGINS ON NEXT PAGE)

 


Be it enacted by the Legislature of the State of Arizona:

Section 1.  Section 13-3601, Arizona Revised Statutes, is amended to read:

START_STATUTE13-3601.  Domestic violence; definition; classification; sentencing option; arrest and procedure for violation; weapon seizure

A.  "Domestic violence" means any act that is a dangerous crime against children as defined in section 13‑705 or an offense prescribed in section 13‑1102, 13‑1103, 13‑1104, 13‑1105, 13‑1201, 13‑1202, 13‑1203, 13‑1204, 13‑1302, 13‑1303, 13‑1304, 13‑1406, 13‑1425, 13‑1502, 13‑1503, 13‑1504, 13‑1602 or 13‑2810, section 13‑2904, subsection A, paragraph 1, 2, 3 or 6, section 13‑2910, subsection A, paragraph 8 or 9, section 13‑2915, subsection A, paragraph 3 or section 13‑2916, 13‑2921, 13‑2921.01, 13‑2923, 13‑3019, 13‑3601.02 or 13‑3623, if any of the following applies:

1.  The relationship between the victim and the defendant is one of marriage or former marriage or of persons residing or having resided in the same household and the persons in the same household are or were in a familial, sexual or romantic relationship.

2.  The victim and the defendant have a child in common.

3.  The victim or the defendant is pregnant by the other party.

4.  The victim is related to the defendant or the defendant's spouse by blood or court order as a parent, grandparent, child, grandchild, brother or sister or by marriage as a parent‑in‑law, grandparent‑in‑law, stepparent, step‑grandparent, stepchild, step‑grandchild, brother‑in‑law or sister‑in‑law.

5.  The victim is a child who resides or has resided in the same household as the defendant and is related by blood to a former spouse of the defendant or to a person who resides or who has resided in the same household as the defendant.

6.  The relationship between the victim and the defendant is currently or was previously a romantic or sexual relationship.  The following factors may be considered in determining whether the relationship between the victim and the defendant is currently or was previously a romantic or sexual relationship:

(a)  The type of relationship.

(b)  The length of the relationship.

(c)  The frequency of the interaction between the victim and the defendant.

(d)  If the relationship has terminated, the length of time since the termination.

B.  A peace officer, with or without a warrant, may arrest a person if the officer has probable cause to believe that domestic violence has been committed and the officer has probable cause to believe that the person to be arrested has committed the offense, whether the offense is a felony or a misdemeanor and whether the offense was committed within or without the presence of the peace officer.  In cases of domestic violence involving the infliction of physical injury or involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument, the peace officer shall arrest a person who is at least fifteen years of age, with or without a warrant, if the officer has probable cause to believe that the offense has been committed and the officer has probable cause to believe that the person to be arrested has committed the offense, whether the offense was committed within or without the presence of the peace officer, unless the officer has reasonable grounds to believe that the circumstances at the time are such that the victim will be protected from further injury.  Failure to make an arrest does not give rise to civil liability except pursuant to section 12‑820.02.  In order to arrest both parties, the peace officer shall have probable cause to believe that both parties independently have committed an act of domestic violence.  An act of self‑defense that is justified under chapter 4 of this title is not deemed to be an act of domestic violence.  The release procedures available under section 13‑3883, subsection A, paragraph 4 and section 13‑3903 are not applicable to arrests made pursuant to this subsection.

C.  A peace officer may question the persons who are present to determine if a firearm is present on the premises.  On learning or observing that a firearm is present on the premises, the peace officer may temporarily seize the firearm if the firearm is in plain view or was found pursuant to a consent to search and if the officer reasonably believes that the firearm would expose the victim or another person in the household to a risk of serious bodily injury or death.  A firearm that is owned or possessed by the victim shall not be seized unless there is probable cause to believe that both parties independently have committed an act of domestic violence.

D.  If a firearm is seized pursuant to subsection C of this section, the peace officer shall give the owner or possessor of the firearm a receipt for each seized firearm.  The receipt shall indicate the identification or serial number or other identifying characteristic of each seized firearm. Each seized firearm shall be held for at least seventy‑two hours by the law enforcement agency that seized the firearm.

E.  If a firearm is seized pursuant to subsection C of this section, the victim shall be notified by a peace officer before the firearm is released from temporary custody.

F.  If there is reasonable cause to believe that returning a firearm to the owner or possessor may endanger the victim, the person who reported the assault or threat or another person in the household, the prosecutor shall file a notice of intent to retain the firearm in the appropriate superior, justice or municipal court.  The prosecutor shall serve notice on the owner or possessor of the firearm by certified mail.  The notice shall state that the firearm will be retained for not more than six months following the date of seizure.  On receipt of the notice, the owner or possessor may request a hearing for the return of the firearm, to dispute the grounds for seizure or to request an earlier return date.  The court shall hold the hearing within ten days after receiving the owner's or possessor's request for a hearing.  At the hearing, unless the court determines that the return of the firearm may endanger the victim, the person who reported the assault or threat or another person in the household, the court shall order the return of the firearm to the owner or possessor.

G.  A peace officer is not liable for any act or omission in the good faith exercise of the officer's duties under subsections C, D, E and F of this section.

H.  Each indictment, information, complaint, summons or warrant that is issued and that involves domestic violence shall state that the offense involved domestic violence and shall be designated by the letters DV.  A domestic violence charge shall not be dismissed or a domestic violence conviction shall not be set aside for failure to comply with this subsection.

I.  A person who is arrested pursuant to subsection B of this section may be released from custody in accordance with the Arizona rules of criminal procedure or any other applicable statute.  Any order for release, with or without an appearance bond, shall include pretrial release conditions that are necessary to provide for the protection of the alleged victim and other specifically designated persons and may provide for additional conditions that the court deems appropriate, including participation in any counseling programs available to the defendant.

J.  When a peace officer responds to a call alleging that domestic violence has been or may be committed, the officer shall inform in writing any alleged or potential victim of the procedures and resources available for the protection of the victim including:

1.  An order of protection pursuant to section 13‑3602, an injunction pursuant to section 25‑315 and an injunction against harassment pursuant to section 12‑1809.

2.  The emergency telephone number for the local police agency.

3.  Telephone numbers for emergency services in the local community.

4.  Websites for local resources related to domestic violence.

K.  A peace officer is not civilly liable for noncompliance with subsection J of this section.

L.  If a person is convicted of an offense involving domestic violence and the victim was pregnant at the time of the commission of the offense, at the time of sentencing the court shall take into consideration the fact that the victim was pregnant and may increase the sentence.

M.  An offense that is included in domestic violence carries the classification prescribed in the section of this title in which the offense is classified.  If the defendant committed a felony offense listed in subsection A of this section against a pregnant victim and knew that the victim was pregnant or if the defendant committed a felony offense causing physical injury to a pregnant victim and knew that the victim was pregnant, the maximum sentence otherwise authorized for that violation shall be increased by up to two years.

N.  When a peace officer responds to a call alleging that domestic violence has been or may be committed, the officer shall determine if a minor is present.  If a minor is present, the peace officer shall conduct a child welfare check to determine if the child is safe and if the child might be a victim of domestic violence or child abuse. END_STATUTE

Sec. 2.  Section 13-3601.01, Arizona Revised Statutes, is amended to read:

START_STATUTE13-3601.01.  Domestic violence; treatment; definitions

A.  The judge shall order a person who is convicted of a misdemeanor domestic violence offense to complete a domestic violence offender treatment program that is provided by a facility approved by the court pursuant to rules adopted by the supreme court, the department of health services, the United States department of veterans affairs or a probation department if any of the following applies:

1.  The relationship between the victim and the defendant is one of marriage or former marriage.

2.  The victim and the defendant have a child in common.

3.  The victim or the defendant is pregnant by the other party.

4.  The relationship between the victim and the defendant is currently or was previously a romantic or sexual relationship as determined by the factors included in section 13‑3601, subsection A, paragraph 6.

B.  The judge may order a person who is convicted of a misdemeanor domestic violence offense to complete a treatment program other than a domestic violence offender treatment program if the relationship between the persons is different than the relationships that are listed in subsection A of this section.

C.  If a person has previously been ordered to complete completed a domestic violence offender treatment program pursuant to this section and is convicted of a subsequent misdemeanor domestic violence offense, the judge shall may order the person to complete a domestic violence offender treatment programunless The judge deems that shall consider alternative sanctions are more appropriate or other alternative options for domestic violence offender treatment.  If a person has failed to complete a domestic violence offender treatment program ordered pursuant to subsection A of this section, the judge shall order the person to complete a domestic violence offender treatment program before ordering additional sanctions or other alternative options.

D.  The department of health services supreme court shall adopt and enforce guidelines that establish standards for domestic violence offender treatment program approval.

B.  E.  On conviction of a misdemeanor domestic violence offense, if a person within a period of sixty months has previously been convicted of a violation of a domestic violence offense or is convicted of a misdemeanor domestic violence offense and has previously been convicted of an act in another state, a court of the United States or a tribal court that if committed in this state would be a domestic violence offense, the judge may order the person to be placed on supervised probation and the person may be incarcerated as a condition of probation.  If the court orders supervised probation, the court may conduct an intake assessment when the person begins the term of probation and may conduct a discharge summary when the person is released from probation.  If the person is incarcerated and the court receives confirmation that the person is employed or is a student, the court, on pronouncement of any jail sentence, may provide in the sentence that the person, if the person is employed or is a student and can continue the person's employment or studies, may continue the employment or studies for not more than twelve hours a day nor more than five days a week.  The person shall spend the remaining day, days or parts of days in jail until the sentence is served and shall be allowed out of jail only long enough to complete the actual hours of employment or studies.

C.  F.  A person who is ordered to complete a domestic violence offender treatment program shall pay the cost of the program.

D.  G.  If a person is ordered to attend a domestic violence offender treatment program pursuant to this section, the program shall report to the court whether the person has attended the program and has successfully completed the program.

E.  H.  For the purposes of this section, prior convictions for misdemeanor domestic violence offenses apply to convictions for offenses that were committed on or after January 1, 1999.

F.  I.  For the purposes of this section:

1.  "Domestic violence offender treatment program" means a treatment program that is provided by a facility that is approved by the United state department of veterans affairs or a probation department or by the court pursuant to rules adopted by the supreme court.

2.  "Domestic violence offense" means an offense involving domestic violence as defined in section 13‑3601.END_STATUTE