2756-S.E AMS HAUG S5479.2

ESHB 2756 - S AMD TO S AMD (S-5376.2/98) - 944

By Senators Haugen, Roach and Fairley

    Beginning on page 1, line 7 of the amendment, strike all of section 1 and insert the following:

    "NEW SECTION. Sec. 1.  CITATION.  Sections 1 through 10 of this act may be known and cited as the Foreign Protection Order Full Faith and Credit Act.

NEW SECTION. Sec. 2.  LEGISLATIVE INTENT.  The problem of women fleeing across state lines to escape their abusers is epidemic in the United States.  In 1994, Congress enacted the Violence Against Women Act (VAWA) as Title IV of the Violent Crime Control and Law Enforcement Act (P.L. 103-322).  The VAWA provides for improved prevention and prosecution of violent crimes against women and children.  Section 2265 of the VAWA (Title IV, P.L. 103-322) provides for nation-wide enforcement of civil and criminal protection orders in state and tribal courts throughout the country. 

    The legislature finds that existing statutes may not provide an adequate mechanism for victims, police, prosecutors, and courts to enforce a foreign protection order in our state.  It is the intent of the legislature that the barriers faced by persons entitled to protection under a foreign protection order will be removed and that violations of foreign protection orders be criminally prosecuted in this state.

NEW SECTION. Sec. 3.  DEFINITIONS.  The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

    (1)  "Domestic or family violence" includes, but is not limited to, conduct when committed by one family member against another that is classified in the jurisdiction where the conduct occurred as a domestic violence crime or a crime committed in another jurisdiction that under the laws of this state would be classified as domestic violence under RCW 10.99.020.

    (2)  "Family or household members" means spouses, former spouses, persons who have a child in common regardless of whether they have been married or have lived together at any time, adult persons related by blood or marriage, adult persons who are presently residing together or who have resided together in the past, persons sixteen years of age or older who are presently residing together or who have resided together in the past and who have or have had a dating relationship, persons sixteen years of age or older with whom a person sixteen years of age or older has or has had a dating relationship, and persons who have a biological or legal parent‑child relationship, including stepparents and stepchildren and grandparents and grandchildren.

    (3) "Foreign protection order" means an injunction or other order  related to domestic or family violence, harassment, sexual abuse, or stalking, for the purpose of preventing violent or threatening acts or  harassment against, or contact or communication with or physical proximity to another person issued by a court of another state, territory, or possession of the United States, the Commonwealth of Puerto Rico, or the District of Columbia, or any United States military tribunal, or a tribal court, in a civil or criminal action.

    (4) "Harassment" includes, but is not limited to, conduct that is classified in the jurisdiction where the conduct occurred as harassment or a crime committed in another jurisdiction that under the laws of this state would be classified as harassment under RCW 9A.46.020.

    (5) "Judicial day" does not include Saturdays, Sundays, or legal holidays in Washington state.

    (6) "Person entitled to protection" means a person, regardless of whether the person was the moving party in the foreign jurisdiction, who is benefited by the foreign protection order.

    (7) "Person under restraint" means a person, regardless of whether the person was the responding party in the foreign jurisdiction, whose ability to contact or communicate with another person, or to be physically close to another person, is restricted by the foreign protection order. 

    (8) "Sexual abuse" includes, but is not limited to, conduct that is classified in the jurisdiction where the conduct occurred as a sex offense or a crime committed in another jurisdiction that under the laws of this state would be classified as a sex offense under RCW 9.94A.030.

    (9) "Stalking" includes, but is not limited to, conduct that is classified in the jurisdiction where the conduct occurred as stalking or a crime committed in another jurisdiction that under the laws of this state would be classified as stalking under RCW 9A.46.110.

    (10) "Washington court" includes the superior, district, and municipal courts of the state of Washington.

NEW SECTION. Sec. 4.  VALID FOREIGN PROTECTION ORDERS.  A foreign protection order is valid if the issuing court had jurisdiction over the parties and matter under the law of the state, territory, or possession, or tribe or United States military tribunal.  There is a presumption in favor of validity where an order appears authentic on its face.

NEW SECTION. Sec. 5.  ENFORCEABILITY HEARING.  (1) A person under restraint by a foreign protection order filed under section 6 of this act may request a hearing from a court of competent jurisdiction in this state on whether the foreign protection order may be enforced in this state.

    (2) The court shall review the foreign protection order to determine whether the statute or ordinance under which the order was entered prohibits conduct that would permit the entry of an order in this state.  If the court determines the prohibited conduct would permit entry of an order in this state, the foreign protection order shall be enforced in any subsequent proceeding and will be treated as valid by all peace officers.  If the court determines that the foreign protection order is invalid, the court shall issue an order declaring that the foreign protection order shall not be enforced.

    (3) In arrest and criminal proceedings, a foreign protection order is valid unless it has been determined invalid by a proceeding under subsection (2) of this section, and no defense exists that the conduct on which the foreign protection order was issued is not recognized as the basis for entry of a protection order in this state.

NEW SECTION. Sec. 6.  FILING OF FOREIGN PROTECTION ORDERS.  (1) A person entitled to protection who has a valid foreign protection order may file that order by presenting a certified, authenticated, or exemplified copy of the foreign protection order to a clerk of the court of a Washington court in which the person entitled to protection resides or to a clerk of the court of a Washington court where the person entitled to protection believes enforcement may be necessary.

    (2) Filing of a foreign protection order with a court and entry of the foreign protection order into any computer‑based criminal intelligence information system available in this state used by law enforcement agencies to list outstanding warrants are not prerequisites for enforcement of the foreign protection order.

    (3) The court shall accept the filing of a foreign protection order without a fee or cost.

    (4) The clerk of the court shall provide information to a person entitled to protection of the availability of domestic violence, sexual abuse, and other services to victims in the community where the court is located and in the state.

    (5) The clerk of the court shall assist the person entitled to protection in completing an information form that must include, but need not be limited to, the following:

    (a) The name of the person entitled to protection and any other protected parties;

    (b) The name and address of the person who is subject to the restraint provisions of the foreign protection order;

    (c) The date the foreign protection order was entered;

    (d) The date the foreign protection order expires;

    (e) The relief granted under . . . . . . . . . . (specify the relief awarded and citations thereto, and designate which of the violations are arrestable offenses);

    (f) The judicial district and contact information for court administration for the court in which the foreign protection order was entered;

    (g) The Social Security number, date of birth, and description of the person subject to the restraint provisions of the foreign protection order;

    (h) Whether the person who is subject to the restraint provisions of the foreign protection order is believed to be armed and dangerous;

    (i) Whether the person who is subject to the restraint provisions of the foreign protection order was served with the order, and if so, the method used to serve the order.

    An inability to answer any of the above questions does not preclude the filing or enforcement of a foreign protection order.

    (6) The clerk of the court shall provide the person entitled to protection with a copy bearing proof of filing with the court.

    (7) Any assistance provided by the clerk under this section does not constitute the practice of law.  The clerk is not liable for any incomplete or incorrect information that he or she is provided.

NEW SECTION. Sec. 7.  TRANSMITTAL OF FILED FOREIGN PROTECTION ORDERS TO LAW ENFORCEMENT AGENCY.  (1) The clerk of the court shall forward a copy of a foreign protection order that is filed under this chapter on or before the next judicial day to the county sheriff along with the completed information form.

    Upon receipt of a filed foreign protection order, the county sheriff shall immediately enter the foreign protection order into any computer‑based criminal intelligence information system available in this state used by law enforcement agencies to list outstanding warrants.  The foreign protection order must remain in the computer for the period stated in the order.  The county sheriff shall only expunge from the computer‑based criminal intelligence information system foreign protection orders that are expired, vacated, or superseded.  Entry into the law enforcement information system constitutes notice to all law enforcement agencies of the existence of the foreign protection order.  The foreign protection order is fully enforceable in any county in the state.

    (2) The information entered into the computer‑based criminal intelligence information system must include, if available, notice to law enforcement whether the foreign protection order was served and the method of service.

NEW SECTION. Sec. 8.  PEACE OFFICER IMMUNITY.  A peace officer or a peace officer's legal advisor may not be held criminally or civilly liable for making an arrest under this chapter if the peace officer or the peace officer's legal advisor acted in good faith and without malice.

NEW SECTION. Sec. 9.  FEES NOT PERMITTED.  A public agency may not charge a fee for filing or preparation of certified, authenticated, or exemplified copies to a person entitled to protection who seeks relief under this chapter or to a foreign prosecutor or a foreign law enforcement agency seeking to enforce a protection order entered by a Washington court.  A person entitled to protection and foreign prosecutors or law enforcement agencies must be provided the necessary number of certified, authenticated, or exemplified copies at no cost.

NEW SECTION. Sec. 10.  VIOLATION OF FOREIGN ORDERS.  (1) Whenever a foreign protection order is granted to a person entitled to protection and the person under restraint knows of the foreign protection order, a violation of a provision prohibiting the person under restraint from contacting or communicating with another person, or of a provision excluding the person under restraint from a residence, workplace, school, or day care, or a violation of any provision for which the foreign protection order specifically indicates that a violation will be a crime, is a gross misdemeanor except as provided in subsections (3) and (4) of this section.  Upon conviction, and in addition to any other penalties provided by law, the court may require the person under restraint to submit to electronic monitoring.  The court shall specify who will provide the electronic monitoring services, and the terms under which the monitoring will be performed.  The order also may include a requirement that the person under restraint pay the costs of the monitoring.  The court shall consider the ability of the convicted person to pay for electronic monitoring.

    (2) A peace officer shall arrest without a warrant and take into custody a person when the peace officer has probable cause to believe that a foreign protection order has been issued of which the person under restraint has knowledge and the person under restraint has violated a provision of the foreign protection order that prohibits the person under restraint from contacting or communicating with another person, or a provision that excludes the person under restraint from a residence, workplace, school, or day care, or a violation of any provision for which the foreign protection order specifically indicates that a violation will be a crime.  Presence of the order in the law enforcement computer‑based criminal intelligence information system is not the only means of establishing knowledge of the order.

    (3) An assault that is a violation of a valid foreign protection order that does not amount to assault in the first or second degree under RCW 9A.36.011 or 9A.36.021 is a class C felony, and conduct in violation of a valid foreign protection order issued under this chapter that is reckless and creates a substantial risk of death or serious physical injury to another person is a class C felony.

    (4) A violation of a valid foreign protection order is a class C felony if the offender has at least two previous convictions for violating the provisions of a no‑contact order issued under chapter 10.99 RCW, a domestic violence protection order issued under chapter 26.09, 26.10, 26.26, or 26.50 RCW, or a federal or out‑of‑state order that is comparable to a no‑contact or protection order issued under Washington law.  The previous convictions may involve the same person entitled to protection or other person entitled to protection specifically protected by the no‑contact orders or protection orders the offender violated.

    Sec. 11.  RCW 10.31.100 and 1997 c 66 s 10 are each amended to read as follows:

    A police officer having probable cause to believe that a person has committed or is committing a felony shall have the authority to arrest the person without a warrant.  A police officer may arrest a person without a warrant for committing a misdemeanor or gross misdemeanor only when the offense is committed in the presence of the officer, except as provided in subsections (1) through (10) of this section.

    (1) Any police officer having probable cause to believe that a person has committed or is committing a misdemeanor or gross misdemeanor, involving physical harm or threats of harm to any person or property or the unlawful taking of property or involving the use or possession of cannabis, or involving the acquisition, possession, or consumption of alcohol by a person under the age of twenty-one years under RCW 66.44.270, or involving criminal trespass under RCW 9A.52.070 or 9A.52.080, shall have the authority to arrest the person.

    (2) A police officer shall arrest and take into custody, pending release on bail, personal recognizance, or court order, a person without a warrant when the officer has probable cause to believe that:

    (a) An order has been issued of which the person has knowledge under RCW 10.99.040(2), 10.99.050, 26.09.050, 26.09.060, 26.10.040, 26.10.115, 26.44.063, chapter 26.26 RCW, or chapter 26.50 RCW restraining the person and the person has violated the terms of the order restraining the person from:  (i) Acts or threats of violence; (ii) contacting another person; (iii) intentionally coming within a specified distance of a location specified in the order; or ((restraining the person from)) (iv) going onto the grounds of ((or)), entering, or coming within a specified distance of a residence, workplace, school, or day care or, in the case of an order issued under RCW 26.44.063, imposing any other restrictions or conditions upon the person; or

    (b) A foreign protection order, as defined in section 3 of this act, has been issued of which the person under restraint has knowledge and the person under restraint has violated a provision of the foreign protection order prohibiting the person under restraint from contacting or communicating with another person, or of a provision excluding the person under restraint from a residence, workplace, school, or day care, or a violation of any provision for which the foreign protection order specifically indicates that a violation will be a crime; or

(c) The person is sixteen years or older and within the preceding four hours has assaulted a family or household member as defined in RCW 10.99.020 and the officer believes:  (i) A felonious assault has occurred; (ii) an assault has occurred which has resulted in bodily injury to the victim, whether the injury is observable by the responding officer or not; or (iii) that any physical action has occurred which was intended to cause another person reasonably to fear imminent serious bodily injury or death.  Bodily injury means physical pain, illness, or an impairment of physical condition.  When the officer has probable cause to believe that family or household members have assaulted each other, the officer is not required to arrest both persons.  The officer shall arrest the person whom the officer believes to be the primary physical aggressor.  In making this determination, the officer shall make every reasonable effort to consider:  (A) The intent to protect victims of domestic violence under RCW 10.99.010; (B) the comparative extent of injuries inflicted or serious threats creating fear of physical injury; and (C) the history of domestic violence between the persons involved.

    (3) Any police officer having probable cause to believe that a person has committed or is committing a violation of any of the following traffic laws shall have the authority to arrest the person:

    (a) RCW 46.52.010, relating to duty on striking an unattended car or other property;

    (b) RCW 46.52.020, relating to duty in case of injury to or death of a person or damage to an attended vehicle;

    (c) RCW 46.61.500 or 46.61.530, relating to reckless driving or racing of vehicles;

    (d) RCW 46.61.502 or 46.61.504, relating to persons under the influence of intoxicating liquor or drugs;

    (e) RCW 46.20.342, relating to driving a motor vehicle while operator's license is suspended or revoked;

    (f) RCW 46.61.5249, relating to operating a motor vehicle in a negligent manner.

    (4) A law enforcement officer investigating at the scene of a motor vehicle accident may arrest the driver of a motor vehicle involved in the accident if the officer has probable cause to believe that the driver has committed in connection with the accident a violation of any traffic law or regulation.

    (5) Any police officer having probable cause to believe that a person has committed or is committing a violation of RCW 88.12.025 shall have the authority to arrest the person.

    (6) An officer may act upon the request of a law enforcement officer in whose presence a traffic infraction was committed, to stop, detain, arrest, or issue a notice of traffic infraction to the driver who is believed to have committed the infraction.  The request by the witnessing officer shall give an officer the authority to take appropriate action under the laws of the state of Washington.

    (7) Any police officer having probable cause to believe that a person has committed or is committing any act of indecent exposure, as defined in RCW 9A.88.010, may arrest the person.

    (8) A police officer may arrest and take into custody, pending release on bail, personal recognizance, or court order, a person without a warrant when the officer has probable cause to believe that an order has been issued of which the person has knowledge under chapter 10.14 RCW and the person has violated the terms of that order.

    (9) Any police officer having probable cause to believe that a person has, within twenty-four hours of the alleged violation, committed a violation of RCW 9A.50.020 may arrest such person.

    (10) A police officer having probable cause to believe that a person illegally possesses or illegally has possessed a firearm or other dangerous weapon on private or public elementary or secondary school premises shall have the authority to arrest the person.

    For purposes of this subsection, the term "firearm" has the meaning defined in RCW 9.41.010 and the term "dangerous weapon" has the meaning defined in RCW 9.41.250 and 9.41.280(1) (c) through (e).

    (11) Except as specifically provided in subsections (2), (3), (4), and (6) of this section, nothing in this section extends or otherwise affects the powers of arrest prescribed in Title 46 RCW.

    (12) No police officer may be held criminally or civilly liable for making an arrest pursuant to RCW 10.31.100 (2) or (8) if the police officer acts in good faith and without malice."

    Renumber the sections following consecutively and correct any internal references accordingly.

ESHB 2756 - S AMD TO S AMD (S-5376.2/98)

By Senator

    On page 32, after line 2 of the amendment, insert the following:

    "NEW SECTION. Sec. 30.  Sections 1 through 10 and 31 of this act constitute a new chapter in Title 26 RCW.

NEW SECTION. Sec. 31.  CAPTIONS NOT LAW.  Captions used in this chapter are not part of the law.

NEW SECTION. Sec. 32.  If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected."

ESHB 2756 - S AMD TO S AMD (S-5376.2/98) - 944

By Senators Haugen, Roach and Zarelli

    On page 32, line 7 of the title amendment, after "insert" strike "and" and on line 10, after "10.99.050" insert "; adding a new chapter to Title 26 RCW; and prescribing penalties"

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