Text: HF00140 Text: HF00142 Text: HF00100 - HF00199 Text: HF Index Bills and Amendments: General Index Bill History: General Index
PAG LIN 1 1 Section 1. Section 236.5, subsection 2, unnumbered 1 2 paragraph 2, Code 1995, is amended to read as follows: 1 3 An order for counseling, aprotectionprotective order or 1 4 approved consent agreement shall be fora fixed period of time1 5not to exceed one yearan indefinite period of time.The1 6court may amend its order or a consent agreement at any time1 7upon a petition filed by either party and after notice and1 8hearing.The order shall specify a period, which shall not be 1 9 less than fifteen days nor more than one year, during which 1 10 the defendant is prohibited from petitioning the court for an 1 11 amendment or revocation of the order. An order shall not be 1 12 terminated at the request of the defendant without a finding 1 13 by the court based on a preponderance of the evidence, that 1 14 the defendant is no longer a danger to the plaintiff and 1 15 family or household members. The plaintiff may petition the 1 16 court at any time for an amendment or revocation of the order. 1 17 Sec. 2. Section 236.5, subsection 2, unnumbered paragraph 1 18 3, Code 1995, is amended to read as follows: 1 19 The order shall state whether a person is to betaken into1 20custodyarrested by a peace officer for a violation of the 1 21 terms stated in the order. 1 22 Sec. 3. Section 236.5, subsection 4, Code 1995, is amended 1 23 to read as follows: 1 24 4. A certified copy of any order or approved consent 1 25 agreement shall be issued to the plaintiff, the defendant and 1 26 the county sheriff having jurisdiction to enforce the order or 1 27 consent agreement,andthe twenty-four hour dispatcher for the 1 28 county sheriff, and the statewide protective order registry 1 29 established in section 236.19. Any subsequent amendment or 1 30 revocation of an order or consent agreement shall be forwarded 1 31 by the clerk to all individuals,andthe county sheriff, and 1 32 the statewide registry previously notified. The clerk shall 1 33 notify the county sheriff and the twenty-four hour dispatcher 1 34 for the county sheriff in writing so that the county sheriff 1 35 and the county sheriff's dispatcher receive written notice 2 1 within six hours of filing the order, approved consent 2 2 agreement, amendment, or revocation. The clerk may fulfill 2 3 this requirement by sending the notice by facsimile or other 2 4 electronic transmission which reproduces the notice in writing 2 5 within six hours of filing the order. The county sheriff's 2 6 dispatcher shall notify all law enforcement agencies having 2 7 jurisdiction over the matter and the twenty-four hour 2 8 dispatcher for the law enforcement agencies upon notification 2 9 by the clerk. The clerk shall send or deliver a written copy 2 10 of any such document to the law enforcement agencies and the 2 11 twenty-four hour dispatcher within twenty-four hours of filing 2 12 the document. 2 13 Sec. 4. Section 236.8, Code 1995, is amended to read as 2 14 follows: 2 15 236.8CONTEMPT &endash; HEARINGSVIOLATION OF COURT ORDERS &endash; 2 16 PENALTY. 2 17The court may hold a party in contempt for a violation2 18 Violation of an order or court-approved consent agreement 2 19 entered under this chapter,forviolation of a temporary or 2 20 permanent protective order or order to vacate the homestead 2 21 under chapter 598, orforviolation of any order that 2 22 establishes conditions of release or is a protective order or 2 23 sentencing order in a criminal prosecution arising from a 2 24 domestic abuse assault by a defendant is a serious 2 25 misdemeanor.If held in contempt, the defendant shall serve a2 26jail sentence. Any jail sentence of more than one day imposed2 27under this section shall be served on consecutive days.2 28A hearing in a contempt proceeding brought pursuant to this2 29section shall be held not less than five and not more than2 30fifteen days after the issuance of a rule to show cause, as2 31set by the court.2 32 Sec. 5. Section 236.11, Code 1995, is amended to read as 2 33 follows: 2 34 236.11 DUTIES OF PEACE OFFICER &endash; MAGISTRATE. 2 35 A peace officer shall use every reasonable means to enforce 3 1 an order or court-approved consent agreement entered under 3 2 this chapter, a temporary or permanent protective order or 3 3 order to vacate the homestead under chapter 598, or any order 3 4 that establishes conditions of release or is a protective 3 5 order or sentencing order in a criminal prosecution arising 3 6 from a domestic abuse assault. If a peace officer has reason 3 7 to believe that domestic abuse has occurred, the peace officer 3 8 shall ask the abused person if any prior orders exist, and 3 9 shall contact the twenty-four hour dispatcher to inquire if 3 10 any prior orders exist. If a peace officer has probable cause 3 11 to believe that a person has violated an order or approved 3 12 consent agreement entered under this chapter, a temporary or 3 13 permanent protective order or order to vacate the homestead 3 14 under chapter 598, or any order establishing conditions of 3 15 release or a protective or sentencing order in a criminal 3 16 prosecution arising from a domestic abuse assault, the peace 3 17 officer shalltakearrest the personinto custodyand shall 3 18 take the person without unnecessary delay before the nearest 3 19 or most accessible magistrate in the judicial district in 3 20 which the person wastaken into custodyarrested. The 3 21 magistrate shall make an initial preliminary determination 3 22 whether there is probable cause to believe that an order or 3 23 consent agreement existed and that the persontaken into3 24custodyarrested has violated its terms. The magistrate's 3 25 decision shall be entered in the record. 3 26 If a peace officer has probable cause to believe that a 3 27 person has violated an order or approved consent agreement 3 28 entered under this chapter, a temporary or permanent 3 29 protective order or order to vacate the homestead under 3 30 chapter 598, or any order establishing conditions of release 3 31 or a protective or sentencing order in a criminal prosecution 3 32 arising from a domestic abuse assault, and the peace officer 3 33 is unable totakearrest the personinto custodywithin 3 34 twenty-four hours of making the probable cause determination, 3 35 the peace officer shall either request a magistrate to make a 4 1 determination as to whether a rule to show cause or arrest 4 2 warrant should be issued, or refer the matter to the county 4 3 attorney. 4 4 If the magistrate finds probable cause, the magistrate 4 5 shall order the person to appear before the court which issued 4 6 the original order or approved the consent agreement, 4 7 whichever was allegedly violated, at a specified time not less 4 8 than five days nor more than fifteen days after the initial 4 9 appearance under this section. The magistrate shall cause the 4 10 original court to be notified of the contents of the 4 11 magistrate's order. 4 12 A peace officer shall not be held civilly or criminally 4 13 liable for acting pursuant to this section provided that the 4 14 peace officer acts in good faith, on probable cause, and the 4 15 officer's acts do not constitute a willful and wanton 4 16 disregard for the rights or safety of another. 4 17 Sec. 6. Section 236.12, Code 1995, is amended by adding 4 18 the following new subsection: 4 19 NEW SUBSECTION. 2A. A peace officer shall seize a 4 20 dangerous weapon displayed or used in an assault when 4 21 arresting a person under subsection 2, paragraph "d", and any 4 22 firearms owned or possessed by the person. A law enforcement 4 23 agency or peace officer shall not return possession of the 4 24 dangerous weapon or firearms to the person arrested if the 4 25 person is subject to an order or approved consent agreement 4 26 entered under this chapter, a temporary or permanent 4 27 protective order or order to vacate the homestead under 4 28 chapter 598, or an order establishing conditions of release or 4 29 a protective or sentencing order in a criminal prosecution 4 30 arising from a domestic abuse assault. 4 31 Sec. 7. Section 236.14, Code 1995, is amended to read as 4 32 follows: 4 33 236.14 INITIAL APPEARANCE REQUIRED &endash; CONTACT TO BE 4 34 PROHIBITED &endash; EXTENSION OF NO-CONTACT ORDER. 4 35 1. Notwithstanding chapters 804 and 805, a persontaken5 1into custody pursuant to section 236.11 orarrested pursuant 5 2 to section 236.11 or 236.12 may be released on bail or 5 3 otherwise only after an initial appearance before a magistrate 5 4 as provided in chapter 804 and the rules of criminal procedure 5 5 or section 236.11, whichever is applicable. 5 6 2. When a person arrested for a domestic abuse assault, or 5 7taken into custody for contempt proceedingspursuant to 5 8 section 236.11, is brought before a magistrate and the 5 9 magistrate finds probable cause to believe that domestic abuse 5 10 or a violation of an order or consent agreement has occurred 5 11 and that the presence of the alleged abuser in the victim's 5 12 residence poses a threat to the safety of the alleged victim, 5 13 persons residing with the alleged victim, or members of the 5 14 alleged victim's immediate family, the magistrate shall enter 5 15 an order which shall require the alleged abuser to have no 5 16 contact with the alleged victim, persons residing with the 5 17 alleged victim, or members of the alleged victim's immediate 5 18 family, and to refrain from harassing the alleged victim, 5 19 persons residing with the alleged victim, or members of the 5 20 alleged victim's immediate family, in addition to any other 5 21 conditions of release determined and imposed by the magistrate 5 22 under section 811.2. A no-contact order requiring the alleged 5 23 abuser to have no contact with the alleged victim's children 5 24 shall prevail over any existing order awarding custody or 5 25 visitation rights, which may be in conflict with the no- 5 26 contact order. 5 27 The court order shall contain the court's directives 5 28 restricting the defendant from having contact with the victim 5 29 or the victim's relatives. 5 30 The clerk of the court or other person designated by the 5 31 court shall provide a copy of this order to the victim 5 32 pursuant to chapter 910A. The order has force and effect 5 33 until it ismodified or terminatedamended or revoked by 5 34 subsequent court actionin the contempt proceeding orby the 5 35 criminal or juvenile courtactionand is reviewable in the 6 1 manner prescribed in section 811.2. If a defendant is 6 2 convicted for, receives a deferred judgment for, or pleads 6 3 guilty to a violation of section 708.2A, the court shall 6 4 modify the no-contact order issued by the magistrate to 6 5 provide that the no-contact order shall continue in effect for 6 6aan indefinite periodof one yearfrom the date that the 6 7 judgment is entered or the deferred judgment is granted, 6 8 regardless of whether the defendant is placed on probation. 6 9 The order shall specify a period, which shall not be less than 6 10 fifteen days, nor more than one year, during which the 6 11 defendant is prohibited from petitioning for amendment or 6 12 revocation of the order.Upon an application by the state6 13which is filed within ninety days prior to the expiration of6 14the modified no-contact order, theThe courtshall modify and6 15extendmay amend or revoke the no-contact orderfor an6 16additional period of one year,only if the court finds that 6 17 the defendantcontinues to pose aposes no threat to the 6 18 safety of the victim, persons residing with the victim, or 6 19 members of the victim's immediate family.The number of6 20modifications extending the no-contact order permitted by this6 21subsection is not limited.The state or the victim may 6 22 petition for amendment or revocation of the order at any time. 6 23 The clerk of the district court shall also provide notice 6 24 and copies of the no-contact order to the applicable law 6 25 enforcement agencies and the twenty-four hour dispatcher for 6 26 the law enforcement agencies and the statewide protective 6 27 order registry established in section 236.19, in the manner 6 28 provided for protective orders under section 236.5. The clerk 6 29 shall provide notice and copies of modifications or vacations 6 30 of these orders in the same manner. 6 31 Violation of this no-contact order, including modified no- 6 32 contact orders, ispunishable by summary contempt proceedings6 33 a serious misdemeanor.A hearing in a contempt proceeding6 34brought pursuant to this section shall be held not less than6 35five and not more than fifteen days after the issuance of a7 1rule to show cause, as set by the court.Ifheld in contempt7 2 convicted for violation of a no-contact order or a modified 7 3 no-contact order, the person shall be confined in the county 7 4 jail for a minimum of seven days. A jail sentence imposed 7 5 pursuant to this paragraph shall be served on consecutive 7 6 days. No portion of the mandatory minimum term of confinement 7 7 imposed by this section shall be deferred or suspended. A 7 8 deferred judgment, deferred sentence, or suspended sentence 7 9 shall not be entered for violation of a no-contact order or a 7 10 modified no-contact order, and the court shall not impose a 7 11 fine in lieu ofthe minimuma sentence of confinement, 7 12 although a fine may be imposed in addition tothe minimum7 13sentenceconfinement. 7 14 3. This section shall not be construed to limit a pretrial 7 15 release order issued pursuant to chapter 811. 7 16 Sec. 8. NEW SECTION. 236.19 STATEWIDE PROTECTIVE ORDER 7 17 REGISTRY. 7 18 A central registry of protective orders is established in 7 19 the department of public safety. The registry shall be 7 20 staffed and accessible on a continuous basis for use by law 7 21 enforcement agencies and peace officers. The registry shall 7 22 contain the following: 7 23 1. Orders and court-approved consent agreements entered 7 24 under this chapter. 7 25 2. Temporary and permanent protective orders and orders to 7 26 vacate the homestead entered under chapter 598. 7 27 3. Orders establishing conditions of release, protective 7 28 orders, and sentencing orders in criminal prosecutions arising 7 29 from a domestic abuse assault. 7 30 The registry may be colocated with another department of 7 31 public safety facility which operates twenty-four hours a day 7 32 on a year-round basis. 7 33 Sec. 9. Section 598.41, Code 1995, is amended by adding 7 34 the following new subsection: 7 35 NEW SUBSECTION. 4A. The court shall not award joint 8 1 custody where there is a history of domestic abuse in the 8 2 family unless the person who committed the domestic abuse 8 3 proves by a preponderance of the evidence that the person is 8 4 no longer a danger to other family members. 8 5 Sec. 10. Section 598.42, Code 1995, is amended to read as 8 6 follows: 8 7 598.42 NOTICE OF CERTAIN ORDERS BY CLERK OF COURT. 8 8 The clerk of the district court shall provide notice and 8 9 copies of temporary or permanent protective orders and orders 8 10 to vacate the homestead entered pursuant to this chapter to 8 11 the applicable law enforcement agencies,andthe twenty-four 8 12 hour dispatcher for the law enforcement agencies, and the 8 13 statewide protective order registry established in section 8 14 236.19 in the manner provided for protective orders under 8 15 section 236.5. The clerk shall provide notice and copies of 8 16 modifications or vacations of these orders in the same manner. 8 17 Sec. 11. Section 708.2A, subsection 6, Code 1995, is 8 18 amended to read as follows: 8 19 6. The clerk of the district court shall provide notice 8 20 and copies of a judgment entered under this section to the 8 21 applicable law enforcement agencies,andthe twenty-four hour 8 22 dispatcher for the law enforcement agencies, and the statewide 8 23 protective order registry established in section 236.19 in the 8 24 manner provided for protective orders under section 236.5. 8 25 The clerk shall provide notice and copies of modifications of 8 26 the judgment in the same manner. 8 27 Sec. 12. Section 804.7, subsection 5, Code 1995, is 8 28 amended to read as follows: 8 29 5. If the peace officer has reasonable grounds for 8 30 believing that domestic abuse, as defined in section 236.2, 8 31 has occurred and has reasonable grounds for believing that the 8 32 person to be arrested has committed it or if the peace officer 8 33 has reasonable grounds for believing that the person to be 8 34 arrested violated section 236.8. 8 35 Sec. 13. Section 907.3, subsection 1, paragraph i, Code 9 1 1995, is amended to read as follows: 9 2 i. The offense is afinding of contempt pursuant to9 3section 236.8 or 236.14violation of section 236.8. 9 4 Sec. 14. Section 907.3, subsections 2 and 3, Code 1995, 9 5 are amended to read as follows: 9 6 2. At the time of or after pronouncing judgment and with 9 7 the consent of the defendant, the court may defer the sentence 9 8 and assign the defendant to the judicial district department 9 9 of correctional services. However, the court shall not defer 9 10 the sentence for a violation of section 708.2A if the 9 11 defendant has previously received a deferred judgment or 9 12 sentence for a violation of section 708.2 or 708.2A which was 9 13 issued on a domestic abuse assault, or if similar relief was 9 14 granted anywhere in the United States concerning that 9 15 jurisdiction's statutes which substantially correspond to 9 16 domestic abuse assault as provided in section 708.2A. In 9 17 addition, the court shall not defer a sentence if it is 9 18 imposed forcontempt pursuant toa violation of section 236.8 9 19or 236.14. Upon a showing that the defendant is not 9 20 fulfilling the conditions of probation, the court may revoke 9 21 probation and impose any sentence authorized by law. Before 9 22 taking such action, the court shall give the defendant an 9 23 opportunity to be heard on any matter relevant to the proposed 9 24 action. Upon violation of the conditions of probation, the 9 25 court may proceed as provided in chapter 908. 9 26 3. By record entry at the time of or after sentencing, the 9 27 court may suspend the sentence and place the defendant on 9 28 probation upon such terms and conditions as it may require 9 29 including commitment to an alternate jail facility or a 9 30 community correctional residential treatment facility for a 9 31 specific number of days to be followed by a term of probation 9 32 as specified in section 907.7. A person so committed who has 9 33 probation revoked shall be given credit for such time served. 9 34 However, the court shall not suspend the minimum term of two 9 35 days imposed pursuant to section 708.2A, and the court shall 10 1 not suspend a sentence imposed pursuant to section 236.8or10 2236.14 for contempt. 10 3 Sec. 15. Section 910A.11, subsection 5, Code 1995, is 10 4 amended to read as follows: 10 5 5. The clerk of the district court shall provide notice 10 6 and copies of restraining orders issued pursuant to this 10 7 section in a criminal case involving an alleged violation of 10 8 section 708.2A to the applicable law enforcement agencies,and10 9 the twenty-four hour dispatcher for the law enforcement 10 10 agencies, and the statewide protective order registry 10 11 established in section 236.19, in the manner provided for 10 12 protective orders under section 236.5. The clerk shall 10 13 provide notice and copies of modifications or vacations of 10 14 these orders in the same manner. 10 15 EXPLANATION 10 16 This bill provides that protective orders in domestic abuse 10 17 cases shall remain in effect until the court finds that the 10 18 defendant no longer poses a threat of further domestic abuse. 10 19 Also, the court is to specify a minimum period, between 15 10 20 days and one year, during which the defendant cannot petition 10 21 the court to modify or terminate the order. The plaintiff or 10 22 the state in a domestic abuse action, or the victim of 10 23 domestic abuse, may petition the court at any time for a 10 24 modification or termination of the order. 10 25 The bill establishes a statewide registry for protective 10 26 orders in the department of public safety, which is to be 10 27 accessible to law enforcement agencies and officers 24-hours- 10 28 a-day on a year-round basis. 10 29 The bill also changes the punishment for violation of 10 30 protective orders entered as a result of domestic abuse or 10 31 dissolution of marriage from contempt to a serious 10 32 misdemeanor. A person convicted of violating a protective 10 33 order shall be sentenced to the same seven-day jail 10 34 confinement which the person would receive currently for 10 35 contempt. This sentence cannot be deferred or suspended. 11 1 The bill also requires law enforcement officers to seize a 11 2 dangerous weapon displayed or used in the commission of a 11 3 domestic abuse assault and all firearms to which the person 11 4 arrested possesses or owns. The dangerous weapons and 11 5 firearms shall not be returned to the person from whom they 11 6 were seized while the person is subject to a protective order. 11 7 Further, the bill provides that a court shall not award 11 8 joint custody as part of a marriage dissolution in cases with 11 9 a history of domestic abuse unless the court finds that there 11 10 is no further danger of domestic abuse. 11 11 The bill may contain a state mandate under chapter 25B. 11 12 LSB 1403HH 76 11 13 mk/jw/5
Text: HF00140 Text: HF00142 Text: HF00100 - HF00199 Text: HF Index Bills and Amendments: General Index Bill History: General Index
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