H-3588.1  _______________________________________________

 

                          HOUSE BILL 2325

          _______________________________________________

 

State of Washington      55th Legislature     1998 Regular Session

 

By Representatives Sterk, Scott, Gardner, Linville, Benson, Ogden, Dunshee, Appelwick, Kessler, Chopp, Cody, Costa, Backlund, Anderson, Schoesler, D. Sommers, Sheahan, Smith, Constantine, Gombosky, Conway and Lantz

 

Prefiled 1/6/98.  Read first time 01/12/98.  Referred to Committee on Criminal Justice & Corrections.

Strengthening domestic violence laws.


    AN ACT Relating to domestic violence; amending RCW 9.95.062, 10.64.025, 10.99.040, 9.94A.360, and 10.31.100; reenacting and amending RCW 9.94A.120; and prescribing penalties.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

 

    Sec. 1.  RCW 9.95.062 and 1996 c 275 s 9 are each amended to read as follows:

    (1) Notwithstanding CrR 3.2 or RAP 7.2, an appeal by a defendant in a criminal action shall not stay the execution of the judgment of conviction, if the court determines by a preponderance of the evidence that:

    (a) The defendant is likely to flee or to pose a danger to the safety of any other person or the community if the judgment is stayed; or

    (b) The delay resulting from the stay will unduly diminish the deterrent effect of the punishment; or

    (c) A stay of the judgment will cause unreasonable trauma to the victims of the crime or their families; or

    (d) The defendant has not undertaken to the extent of the defendant's financial ability to pay the financial obligations under the judgment or has not posted an adequate performance bond to assure payment.

    (2) An appeal by a defendant convicted of one of the following offenses shall not stay execution of the judgment of conviction:  Rape in the first or second degree (RCW 9A.44.040 and 9A.44.050); rape of a child in the first, second, or third degree (RCW 9A.44.073, 9A.44.076, and 9A.44.079); child molestation in the first, second, or third degree (RCW 9A.44.083, 9A.44.086, and 9A.44.089); sexual misconduct with a minor in the first or second degree (RCW 9A.44.093 and 9A.44.096); indecent liberties (RCW 9A.44.100); incest (RCW 9A.64.020); luring (RCW 9A.40.090); any class A or B felony that is a sexually motivated offense as defined in RCW 9.94A.030; a felony violation of RCW 9.68A.090; a felony domestic violence offense as defined in RCW 10.99.020; or any offense that is, under chapter 9A.28 RCW, a criminal attempt, solicitation, or conspiracy to commit one of those offenses.

    (3) In case the defendant has been convicted of a felony, and has been unable to obtain release pending the appeal by posting an appeal bond, cash, adequate security, release on personal recognizance, or any other conditions imposed by the court, the time the defendant has been imprisoned pending the appeal shall be deducted from the term for which the defendant was sentenced, if the judgment is affirmed.

 

    Sec. 2.  RCW 10.64.025 and 1996 c 275 s 10 are each amended to read as follows:

    (1) A defendant who has been found guilty of a felony and is awaiting sentencing shall be detained unless the court finds by clear and convincing evidence that the defendant is not likely to flee or to pose a danger to the safety of any other person or the community if released.  Any bail bond that was posted on behalf of a defendant shall, upon the defendant's conviction, be exonerated.

    (2) A defendant who has been found guilty of one of the following offenses shall be detained pending sentencing:  Rape in the first or second degree (RCW 9A.44.040 and 9A.44.050); rape of a child in the first, second, or third degree (RCW 9A.44.073, 9A.44.076, and 9A.44.079); child molestation in the first, second, or third degree (RCW 9A.44.083, 9A.44.086, and 9A.44.089); sexual misconduct with a minor in the first or second degree (RCW 9A.44.093 and 9A.44.096); indecent liberties (RCW 9A.44.100); incest (RCW 9A.64.020); luring (RCW 9A.40.090); any class A or B felony that is a sexually motivated offense as defined in RCW 9.94A.030; a felony violation of RCW 9.68A.090; a felony domestic violence offense as defined in RCW 10.99.020; or any offense that is, under chapter 9A.28 RCW, a criminal attempt, solicitation, or conspiracy to commit one of those offenses.

 

    Sec. 3.  RCW 10.99.040 and 1997 c 338 s 54 are each amended to read as follows:

    (1) Because of the serious nature of domestic violence, the court in domestic violence actions:

    (a) Shall not dismiss any charge or delay disposition because of concurrent dissolution or other civil proceedings;

    (b) Shall not require proof that either party is seeking a dissolution of marriage prior to instigation of criminal proceedings;

    (c) Shall waive any requirement that the victim's location be disclosed to any person, other than the attorney of a criminal defendant, upon a showing that there is a possibility of further violence:  PROVIDED, That the court may order a criminal defense attorney not to disclose to his or her client the victim's location; and

    (d) Shall identify by any reasonable means on docket sheets those criminal actions arising from acts of domestic violence.

    (2) Because of the likelihood of repeated violence directed at those who have been victims of domestic violence in the past, when any person charged with or arrested for a crime involving domestic violence is released from custody before arraignment or trial on bail or personal recognizance, the court authorizing the release may prohibit that person from having any contact with the victim.

    (a) The jurisdiction authorizing the release shall determine whether that person should be prohibited from having any contact with the victim.  If there is no outstanding restraining or protective order prohibiting that person from having contact with the victim, the court authorizing release may issue, by telephone, a no-contact order prohibiting the person charged or arrested from having contact with the victim.  In issuing the order, the court shall consider the provisions of RCW 9.41.800.  The no-contact order shall also be issued in writing as soon as possible.

    (b) Upon the court's own motion, or upon a verified application by the prosecuting attorney, alleging with specificity that the accused has violated a condition of release imposed under (a) of this subsection, the court shall order the accused to be arrested and held without bail or release on personal recognizance, pending an immediate hearing to reconsider the release authorized under this subsection.

    (3) At the time of arraignment the court shall determine whether a no-contact order shall be issued or extended.  If a no-contact order is issued or extended, the court may also include in the conditions of release a requirement that the defendant submit to electronic monitoring.  If electronic monitoring is ordered, the court shall specify who shall provide the monitoring services, and the terms under which the monitoring shall be performed.  Upon conviction, the court may require as a condition of the sentence that the defendant reimburse the providing agency for the costs of the electronic monitoring.

    (4)(a) Willful violation of a court order issued under subsection (2) or (3) of this section is a gross misdemeanor except as provided in (b) and (c) of this subsection (4).  Upon conviction and in addition to other penalties provided by law, the court may require that the defendant submit to electronic monitoring.  The court shall specify who shall provide the electronic monitoring services and the terms under which the monitoring must be performed.  The court also may include a requirement that the defendant pay the costs of the monitoring.  The court shall consider the ability of the convicted person to pay for electronic monitoring.

    (b) Any assault that is a violation of an order issued under this section and 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 punishable under chapter 9A.20 RCW, and any conduct in violation of a protective order issued under this section that is reckless and creates a substantial risk of death or serious physical injury to another person is a class C felony punishable under chapter 9A.20 RCW.

    (c) A willful violation of a court order issued under this section 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 this chapter, a domestic violence protection order issued under chapter 26.09, 26.10, 26.26, or 26.50 RCW, or any federal or out-of-state order that is comparable to a no-contact order or protection order issued under Washington law.  The previous convictions may involve the same victim or other victims specifically protected by the no-contact orders or protection orders the offender violated.

    (d) The written order releasing the person charged or arrested shall contain the court's directives and shall bear the legend:  "Violation of this order is a criminal offense under chapter 10.99 RCW and will subject a violator to arrest; any assault, drive-by shooting, or reckless endangerment that is a violation of this order is a felony.  You can be arrested even if any person protected by the order invites or allows you to violate the order's prohibitions.  You have the sole responsibility to avoid or refrain from violating the order's provisions.  Only the court can change the order.  You are further notified that, upon motion of the court or the prosecuting attorney, alleging with specificity that you have violated a condition of this order, you are subject to arrest without bail or release on personal recognizance pending trial."  A certified copy of the order shall be provided to the victim.  If a no-contact order has been issued prior to charging, that order shall expire at arraignment or within seventy-two hours if charges are not filed.  Such orders need not be entered into the computer-based criminal intelligence information system in this state which is used by law enforcement agencies to list outstanding warrants.

    (5) Whenever an order prohibiting contact is issued, modified, or terminated under subsection (2) or (3) of this section, the clerk of the court shall forward a copy of the order on or before the next judicial day to the appropriate law enforcement agency specified in the order.  Upon receipt of the copy of the order the law enforcement agency shall forthwith enter the order for one year or until the expiration date specified on the order into any computer-based criminal intelligence information system available in this state used by law enforcement agencies to list outstanding warrants.  Entry into the law enforcement information system constitutes notice to all law enforcement agencies of the existence of the order.  The order is fully enforceable in any jurisdiction in the state.

 

    Sec. 4.  RCW 9.94A.360 and 1997 c 338 s 5 are each amended to read as follows:

    The offender score is measured on the horizontal axis of the sentencing grid.  The offender score rules are as follows:

    The offender score is the sum of points accrued under this section rounded down to the nearest whole number.

    (1) A prior conviction is a conviction which exists before the date of sentencing for the offense for which the offender score is being computed.  Convictions entered or sentenced on the same date as the conviction for which the offender score is being computed shall be deemed "other current offenses" within the meaning of RCW 9.94A.400.

    (2) Class A and sex prior felony convictions shall always be included in the offender score.  Class B prior felony convictions other than sex offenses shall not be included in the offender score, if since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent ten consecutive years in the community without committing any crime that subsequently results in a conviction.  Class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction.  Serious traffic convictions shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender spent five years in the community without committing any crime that subsequently results in a conviction.  This subsection applies to both adult and juvenile prior convictions.

    (3) Out-of-state convictions for offenses shall be classified according to the comparable offense definitions and sentences provided by Washington law.  Federal convictions for offenses shall be classified according to the comparable offense definitions and sentences provided by Washington law.  If there is no clearly comparable offense under Washington law or the offense is one that is usually considered subject to exclusive federal jurisdiction, the offense shall be scored as a class C felony equivalent if it was a felony under the relevant federal statute.

    (4) Score prior convictions for felony anticipatory offenses (attempts, criminal solicitations, and criminal conspiracies) the same as if they were convictions for completed offenses.

    (5)(a) In the case of multiple prior convictions, for the purpose of computing the offender score, count all convictions separately, except:

    (i) Prior offenses which were found, under RCW 9.94A.400(1)(a), to encompass the same criminal conduct, shall be counted as one offense, the offense that yields the highest offender score.  The current sentencing court shall determine with respect to other prior adult offenses for which sentences were served concurrently or prior juvenile offenses for which sentences were served consecutively, whether those offenses shall be counted as one offense or as separate offenses using the "same criminal conduct" analysis found in RCW 9.94A.400(1)(a), and if the court finds that they shall be counted as one offense, then the offense that yields the highest offender score shall be used.  The current sentencing court may presume that such other prior offenses were not the same criminal conduct from sentences imposed on separate dates, or in separate counties or jurisdictions, or in separate complaints, indictments, or informations;

    (ii) In the case of multiple prior convictions for offenses committed before July 1, 1986, for the purpose of computing the offender score, count all adult convictions served concurrently as one offense, and count all juvenile convictions entered on the same date as one offense.  Use the conviction for the offense that yields the highest offender score.

    (b) As used in this subsection (5), "served concurrently" means that:  (i) The latter sentence was imposed with specific reference to the former; (ii) the concurrent relationship of the sentences was judicially imposed; and (iii) the concurrent timing of the sentences was not the result of a probation or parole revocation on the former offense.

    (6) If the present conviction is one of the anticipatory offenses of criminal attempt, solicitation, or conspiracy, count each prior conviction as if the present conviction were for a completed offense.

    (7) If the present conviction is for a nonviolent offense and not covered by subsection (11) or (12) of this section, count one point for each adult prior felony conviction and one point for each juvenile prior violent felony conviction and 2 point for each juvenile prior nonviolent felony conviction.

    (8) If the present conviction is for a violent offense and not covered in subsection (9), (10), (11), or (12) of this section, count two points for each prior adult and juvenile violent felony conviction, one point for each prior adult nonviolent felony conviction, and 2 point for each prior juvenile nonviolent felony conviction.

    (9) If the present conviction is for Murder 1 or 2, Assault 1, Assault of a Child 1, Kidnapping 1, Homicide by Abuse, or Rape 1, count three points for prior adult and juvenile convictions for crimes in these categories, two points for each prior adult and juvenile violent conviction (not already counted), one point for each prior adult nonviolent felony conviction, and 2 point for each prior juvenile nonviolent felony conviction.

    (10) If the present conviction is for Burglary 1, count prior convictions as in subsection (8) of this section; however count two points for each prior adult Burglary 2 or residential burglary conviction, and one point for each prior juvenile Burglary 2 or residential burglary conviction.

    (11) If the present conviction is for a felony traffic offense count two points for each adult or juvenile prior conviction for Vehicular Homicide or Vehicular Assault; for each felony offense or serious traffic offense, count one point for each adult and 2 point for each juvenile prior conviction.

    (12) If the present conviction is for a drug offense count three points for each adult prior felony drug offense conviction and two points for each juvenile drug offense.  All other adult and juvenile felonies are scored as in subsection (8) of this section if the current drug offense is violent, or as in subsection (7) of this section if the current drug offense is nonviolent.

    (13) If the present conviction is for Willful Failure to Return from Furlough, RCW 72.66.060, Willful Failure to Return from Work Release, RCW 72.65.070, or Escape from Community Custody, RCW 72.09.310, count only prior escape convictions in the offender score.  Count adult prior escape convictions as one point and juvenile prior escape convictions as 2 point.

    (14) If the present conviction is for Escape 1, RCW 9A.76.110, or Escape 2, RCW 9A.76.120, count adult prior convictions as one point and juvenile prior convictions as 2 point.

    (15) If the present conviction is for Burglary 2 or residential burglary, count priors as in subsection (7) of this section; however, count two points for each adult and juvenile prior Burglary 1 conviction, two points for each adult prior Burglary 2 or residential burglary conviction, and one point for each juvenile prior Burglary 2 or residential burglary conviction.

    (16) If the present conviction is for a sex offense, count priors as in subsections (7) through (15) of this section; however count three points for each adult and juvenile prior sex offense conviction.

    (17) If the present conviction is for an offense committed while the offender was under community placement, add one point.

    (18) If the present conviction is for a felony domestic violence offense as defined in RCW 10.99.020, with respect to misdemeanor domestic violence offenses, count one point for each adult and 1/2 point for each juvenile prior conviction.

 

    Sec. 5.  RCW 9.94A.120 and 1997 c 340 s 2, 1997 c 338 s 4, 1997 c 144 s 2, 1997 c 121 s 2, and 1997 c 69 s 1 are each reenacted and amended to read as follows:

    When a person is convicted of a felony, the court shall impose punishment as provided in this section.

    (1) Except as authorized in subsections (2), (4), (5), (6), and (8) of this section, the court shall impose a sentence within the sentence range for the offense.

    (2) The court may impose a sentence outside the standard sentence range for that offense if it finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence.

    (3) Whenever a sentence outside the standard range is imposed, the court shall set forth the reasons for its decision in written findings of fact and conclusions of law.  A sentence outside the standard range shall be a determinate sentence.

    (4) A persistent offender shall be sentenced to a term of total confinement for life without the possibility of parole or, when authorized by RCW 10.95.030 for the crime of aggravated murder in the first degree, sentenced to death, notwithstanding the maximum sentence under any other law.  An offender convicted of the crime of murder in the first degree shall be sentenced to a term of total confinement not less than twenty years.  An offender convicted of the crime of assault in the first degree or assault of a child in the first degree where the offender used force or means likely to result in death or intended to kill the victim shall be sentenced to a term of total confinement not less than five years.  An offender convicted of the crime of rape in the first degree shall be sentenced to a term of total confinement not less than five years.  The foregoing minimum terms of total confinement are mandatory and shall not be varied or modified as provided in subsection (2) of this section.  In addition, all offenders subject to the provisions of this subsection shall not be eligible for community custody, earned early release time, furlough, home detention, partial confinement, work crew, work release, or any other form of early release as defined under RCW 9.94A.150 (1), (2), (3), (5), (7), or (8), or any other form of authorized leave of absence from the correctional facility while not in the direct custody of a corrections officer or officers during such minimum terms of total confinement except in the case of an offender in need of emergency medical treatment or for the purpose of commitment to an inpatient treatment facility in the case of an offender convicted of the crime of rape in the first degree.

    (5) In sentencing a first-time offender the court may waive the imposition of a sentence within the sentence range and impose a sentence which may include up to ninety days of confinement in a facility operated or utilized under contract by the county and a requirement that the offender refrain from committing new offenses.  The sentence may also include up to two years of community supervision, which, in addition to crime-related prohibitions, may include requirements that the offender perform any one or more of the following:

    (a) Devote time to a specific employment or occupation;

    (b) Undergo available outpatient treatment for up to two years, or inpatient treatment not to exceed the standard range of confinement for that offense;

    (c) Pursue a prescribed, secular course of study or vocational training;

    (d) Remain within prescribed geographical boundaries and notify the court or the community corrections officer prior to any change in the offender's address or employment;

    (e) Report as directed to the court and a community corrections officer; or

    (f) Pay all court-ordered legal financial obligations as provided in RCW 9.94A.030 and/or perform community service work.

    (6)(a) An offender is eligible for the special drug offender sentencing alternative if:

    (i) The offender is convicted of the manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance classified in Schedule I or II that is a narcotic drug or a felony that is, under chapter 9A.28 RCW or RCW 69.50.407, a criminal attempt, criminal solicitation, or criminal conspiracy to commit such crimes, and the violation does not involve a sentence enhancement under RCW 9.94A.310 (3) or (4);

    (ii) The offender has no prior convictions for a felony in this state, another state, or the United States; and

    (iii) The offense involved only a small quantity of the particular controlled substance as determined by the judge upon consideration of such factors as the weight, purity, packaging, sale price, and street value of the controlled substance.

    (b) If the midpoint of the standard range is greater than one year and the sentencing judge determines that the offender is eligible for this option and that the offender and the community will benefit from the use of the special drug offender sentencing alternative, the judge may waive imposition of a sentence within the standard range and impose a sentence that must include a period of total confinement in a state facility for one-half of the midpoint of the standard range.  During incarceration in the state facility, offenders sentenced under this subsection shall undergo a comprehensive substance abuse assessment and receive, within available resources, treatment services appropriate for the offender.  The treatment services shall be designed by the division of alcohol and substance abuse of the department of social and health services, in cooperation with the department of corrections.  If the midpoint of the standard range is twenty-four months or less, no more than three months of the sentence may be served in a work release status.  The court shall also impose one year of concurrent community custody and community supervision that must include appropriate outpatient substance abuse treatment, crime-related prohibitions including a condition not to use illegal controlled substances, and a requirement to submit to urinalysis or other testing to monitor that status.  The court may require that the monitoring for controlled substances be conducted by the department or by a treatment alternatives to street crime program or a comparable court or agency-referred program.  The offender may be required to pay thirty dollars per month while on community custody to offset the cost of monitoring.  In addition, the court shall impose three or more of the following conditions:

    (i) Devote time to a specific employment or training;

    (ii) Remain within prescribed geographical boundaries and notify the court or the community corrections officer before any change in the offender's address or employment;

    (iii) Report as directed to a community corrections officer;

    (iv) Pay all court-ordered legal financial obligations;

    (v) Perform community service work;

    (vi) Stay out of areas designated by the sentencing judge.

    (c) If the offender violates any of the sentence conditions in (b) of this subsection, the department shall impose sanctions administratively, with notice to the prosecuting attorney and the sentencing court.  Upon motion of the court or the prosecuting attorney, a violation hearing shall be held by the court.  If the court finds that conditions have been willfully violated, the court may impose confinement consisting of up to the remaining one-half of the midpoint of the standard range.  All total confinement served during the period of community custody shall be credited to the offender, regardless of whether the total confinement is served as a result of the original sentence, as a result of a sanction imposed by the department, or as a result of a violation found by the court.  The term of community supervision shall be tolled by any period of time served in total confinement as a result of a violation found by the court.

    (d) The department shall determine the rules for calculating the value of a day fine based on the offender's income and reasonable obligations which the offender has for the support of the offender and any dependents.  These rules shall be developed in consultation with the administrator for the courts, the office of financial management, and the commission.

    (7) If a sentence range has not been established for the defendant's crime, the court shall impose a determinate sentence which may include not more than one year of confinement, community service work, a term of community supervision not to exceed one year, and/or other legal financial obligations.  The court may impose a sentence which provides more than one year of confinement if the court finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence.

    (8)(a)(i) When an offender is convicted of a sex offense other than a violation of RCW 9A.44.050 or a sex offense that is also a serious violent offense and has no prior convictions for a sex offense or any other felony sex offenses in this or any other state, the sentencing court, on its own motion or the motion of the state or the defendant, may order an examination to determine whether the defendant is amenable to treatment.

    The report of the examination shall include at a minimum the following:  The defendant's version of the facts and the official version of the facts, the defendant's offense history, an assessment of problems in addition to alleged deviant behaviors, the offender's social and employment situation, and other evaluation measures used.  The report shall set forth the sources of the evaluator's information.

    The examiner shall assess and report regarding the defendant's amenability to treatment and relative risk to the community.  A proposed treatment plan shall be provided and shall include, at a minimum:

    (A) Frequency and type of contact between offender and therapist;

    (B) Specific issues to be addressed in the treatment and description of planned treatment modalities;

    (C) Monitoring plans, including any requirements regarding living conditions, lifestyle requirements, and monitoring by family members and others;

    (D) Anticipated length of treatment; and

    (E) Recommended crime-related prohibitions.

    The court on its own motion may order, or on a motion by the state shall order, a second examination regarding the offender's amenability to treatment.  The evaluator shall be selected by the party making the motion.  The defendant shall pay the cost of any second examination ordered unless the court finds the defendant to be indigent in which case the state shall pay the cost.

    (ii) After receipt of the reports, the court shall consider whether the offender and the community will benefit from use of this special sex offender sentencing alternative and consider the victim's opinion whether the offender should receive a treatment disposition under this subsection.  If the court determines that this special sex offender sentencing alternative is appropriate, the court shall then impose a sentence within the sentence range.  If this sentence is less than eleven years of confinement, the court may suspend the execution of the sentence and impose the following conditions of suspension:

    (A) The court shall place the defendant on community custody for the length of the suspended sentence or three years, whichever is greater, and require the offender to comply with any conditions imposed by the department of corrections under subsection (14) of this section;

    (B) The court shall order treatment for any period up to three years in duration.  The court in its discretion shall order outpatient sex offender treatment or inpatient sex offender treatment, if available.  A community mental health center may not be used for such treatment unless it has an appropriate program designed for sex offender treatment.  The offender shall not change sex offender treatment providers or treatment conditions without first notifying the prosecutor, the community corrections officer, and the court, and shall not change providers without court approval after a hearing if the prosecutor or community corrections officer object to the change.  In addition, as conditions of the suspended sentence, the court may impose other sentence conditions including up to six months of confinement, not to exceed the sentence range of confinement for that offense, crime-related prohibitions, and requirements that the offender perform any one or more of the following:

    (I) Devote time to a specific employment or occupation;

    (II) Remain within prescribed geographical boundaries and notify the court or the community corrections officer prior to any change in the offender's address or employment;

    (III) Report as directed to the court and a community corrections officer;

    (IV) Pay all court-ordered legal financial obligations as provided in RCW 9.94A.030, perform community service work, or any combination thereof; or

    (V) Make recoupment to the victim for the cost of any counseling required as a result of the offender's crime; and

    (C) Sex offenders sentenced under this special sex offender sentencing alternative are not eligible to accrue any earned early release time while serving a suspended sentence.

    (iii) The sex offender therapist shall submit quarterly reports on the defendant's progress in treatment to the court and the parties.  The report shall reference the treatment plan and include at a minimum the following:  Dates of attendance, defendant's compliance with requirements, treatment activities, the defendant's relative progress in treatment, and any other material as specified by the court at sentencing.

    (iv) At the time of sentencing, the court shall set a treatment termination hearing for three months prior to the anticipated date for completion of treatment.  Prior to the treatment termination hearing, the treatment professional and community corrections officer shall submit written reports to the court and parties regarding the defendant's compliance with treatment and monitoring requirements, and recommendations regarding termination from treatment, including proposed community supervision conditions.  Either party may request and the court may order another evaluation regarding the advisability of termination from treatment.  The defendant shall pay the cost of any additional evaluation ordered unless the court finds the defendant to be indigent in which case the state shall pay the cost.  At the treatment termination hearing the court may:  (A) Modify conditions of community custody, and either (B) terminate treatment, or (C) extend treatment for up to the remaining period of community custody.

    (v) If a violation of conditions occurs during community custody, the department shall either impose sanctions as provided for in RCW 9.94A.205(2)(a) or refer the violation to the court and recommend revocation of the suspended sentence as provided for in (a)(vi) of this subsection.

    (vi) The court may revoke the suspended sentence at any time during the period of community custody and order execution of the sentence if:  (A) The defendant violates the conditions of the suspended sentence, or (B) the court finds that the defendant is failing to make satisfactory progress in treatment.  All confinement time served during the period of community custody shall be credited to the offender if the suspended sentence is revoked.

    (vii) Except as provided in (a)(viii) of this subsection, after July 1, 1991, examinations and treatment ordered pursuant to this subsection shall only be conducted by sex offender treatment providers certified by the department of health pursuant to chapter 18.155 RCW.

    (viii) A sex offender therapist who examines or treats a sex offender pursuant to this subsection (8) does not have to be certified by the department of health pursuant to chapter 18.155 RCW if the court finds that:  (A) The offender has already moved to another state or plans to move to another state for reasons other than circumventing the certification requirements; (B) no certified providers are available for treatment within a reasonable geographical distance of the offender's home; and (C) the evaluation and treatment plan comply with this subsection (8) and the rules adopted by the department of health.

    (ix) For purposes of this subsection (8), "victim" means any person who has sustained emotional, psychological, physical, or financial injury to person or property as a result of the crime charged.  "Victim" also means a parent or guardian of a victim who is a minor child unless the parent or guardian is the perpetrator of the offense.

    (x) If the defendant was less than eighteen years of age when the charge was filed, the state shall pay for the cost of initial evaluation and treatment.

    (b) When an offender commits any felony sex offense on or after July 1, 1987, and is sentenced to a term of confinement of more than one year but less than six years, the sentencing court may, on its own motion or on the motion of the offender or the state, request the department of corrections to evaluate whether the offender is amenable to treatment and the department may place the offender in a treatment program within a correctional facility operated by the department.

    Except for an offender who has been convicted of a violation of RCW 9A.44.040 or 9A.44.050, if the offender completes the treatment program before the expiration of his or her term of confinement, the department of corrections may request the court to convert the balance of confinement to community supervision and to place conditions on the offender including crime-related prohibitions and requirements that the offender perform any one or more of the following:

    (i) Devote time to a specific employment or occupation;

    (ii) Remain within prescribed geographical boundaries and notify the court or the community corrections officer prior to any change in the offender's address or employment;

    (iii) Report as directed to the court and a community corrections officer;

    (iv) Undergo available outpatient treatment.

    If the offender violates any of the terms of his or her community supervision, the court may order the offender to serve out the balance of his or her community supervision term in confinement in the custody of the department of corrections.

    Nothing in this subsection (8)(b) shall confer eligibility for such programs for offenders convicted and sentenced for a sex offense committed prior to July 1, 1987.  This subsection (8)(b) does not apply to any crime committed after July 1, 1990.

    (c) Offenders convicted and sentenced for a sex offense committed prior to July 1, 1987, may, subject to available funds, request an evaluation by the department of corrections to determine whether they are amenable to treatment.  If the offender is determined to be amenable to treatment, the offender may request placement in a treatment program within a correctional facility operated by the department.  Placement in such treatment program is subject to available funds.

    (9)(a) When a court sentences a person to a term of total confinement to the custody of the department of corrections for an offense categorized as a sex offense or a serious violent offense committed after July 1, 1988, but before July 1, 1990, assault in the second degree, assault of a child in the second degree, any crime against a person where it is determined in accordance with RCW 9.94A.125 that the defendant or an accomplice was armed with a deadly weapon at the time of commission, any felony domestic violence offense as defined in RCW 10.99.020, or any felony offense under chapter 69.50 or 69.52 RCW not sentenced under subsection (6) of this section, committed on or after July 1, 1988, the court shall in addition to the other terms of the sentence, sentence the offender to a one-year term of community placement beginning either upon completion of the term of confinement or at such time as the offender is transferred to community custody in lieu of earned early release in accordance with RCW 9.94A.150 (1) and (2).  When the court sentences an offender under this subsection to the statutory maximum period of confinement then the community placement portion of the sentence shall consist entirely of such community custody to which the offender may become eligible, in accordance with RCW 9.94A.150 (1) and (2).  Any period of community custody actually served shall be credited against the community placement portion of the sentence.

    (b) When a court sentences a person to a term of total confinement to the custody of the department of corrections for an offense categorized as a sex offense committed on or after July 1, 1990, but before June 6, 1996, a serious violent offense, vehicular homicide, or vehicular assault, committed on or after July 1, 1990, the court shall in addition to other terms of the sentence, sentence the offender to community placement for two years or up to the period of earned early release awarded pursuant to RCW 9.94A.150 (1) and (2), whichever is longer.  The community placement shall begin either upon completion of the term of confinement or at such time as the offender is transferred to community custody in lieu of earned early release in accordance with RCW 9.94A.150 (1) and (2).  When the court sentences an offender under this subsection to the statutory maximum period of confinement then the community placement portion of the sentence shall consist entirely of the community custody to which the offender may become eligible, in accordance with RCW 9.94A.150 (1) and (2).  Any period of community custody actually served shall be credited against the community placement portion of the sentence.  Unless a condition is waived by the court, the terms of community placement for offenders sentenced pursuant to this section shall include the following conditions:

    (i) The offender shall report to and be available for contact with the assigned community corrections officer as directed;

    (ii) The offender shall work at department of corrections-approved education, employment, and/or community service;

    (iii) The offender shall not possess or consume controlled substances except pursuant to lawfully issued prescriptions;

    (iv) The offender shall pay supervision fees as determined by the department of corrections;

    (v) The residence location and living arrangements are subject to the prior approval of the department of corrections during the period of community placement; and

    (vi) The offender shall submit to affirmative acts necessary to monitor compliance with the orders of the court as required by the department.

    (c) As a part of any sentence imposed under (a) or (b) of this subsection, the court may also order any of the following special conditions:

    (i) The offender shall remain within, or outside of, a specified geographical boundary;

    (ii) The offender shall not have direct or indirect contact with the victim of the crime or a specified class of individuals;

    (iii) The offender shall participate in crime-related treatment or counseling services;

    (iv) The offender shall not consume alcohol;

    (v) The offender shall comply with any crime-related prohibitions; or

    (vi) For an offender convicted of a felony sex offense against a minor victim after June 6, 1996, the offender shall comply with any terms and conditions of community placement imposed by the department of corrections relating to contact between the sex offender and a minor victim or a child of similar age or circumstance as a previous victim.

    (d) Prior to transfer to, or during, community placement, any conditions of community placement may be removed or modified so as not to be more restrictive by the sentencing court, upon recommendation of the department of corrections.

    (10)(a) When a court sentences a person to the custody of the department of corrections for an offense categorized as a sex offense committed on or after June 6, 1996, the court shall, in addition to other terms of the sentence, sentence the offender to community custody for three years or up to the period of earned early release awarded pursuant to RCW 9.94A.150 (1) and (2), whichever is longer.  The community custody shall begin either upon completion of the term of confinement or at such time as the offender is transferred to community custody in lieu of earned early release in accordance with RCW 9.94A.150 (1) and (2).

    (b) Unless a condition is waived by the court, the terms of community custody shall be the same as those provided for in subsection (9)(b) of this section and may include those provided for in subsection (9)(c) of this section.  As part of any sentence that includes a term of community custody imposed under this subsection, the court shall also require the offender to comply with any conditions imposed by the department of corrections under subsection (14) of this section.

    (c) At any time prior to the completion of a sex offender's term of community custody, if the court finds that public safety would be enhanced, the court may impose and enforce an order extending any or all of the conditions imposed pursuant to this section for a period up to the maximum allowable sentence for the crime as it is classified in chapter 9A.20 RCW, regardless of the expiration of the offender's term of community custody.  If a violation of a condition extended under this subsection occurs after the expiration of the offender's term of community custody, it shall be deemed a violation of the sentence for the purposes of RCW 9.94A.195 and may be punishable as contempt of court as provided for in RCW 7.21.040.

    (11) If the court imposes a sentence requiring confinement of thirty days or less, the court may, in its discretion, specify that the sentence be served on consecutive or intermittent days.  A sentence requiring more than thirty days of confinement shall be served on consecutive days.  Local jail administrators may schedule court-ordered intermittent sentences as space permits.

    (12) If a sentence imposed includes payment of a legal financial obligation, the sentence shall specify the total amount of the legal financial obligation owed, and shall require the offender to pay a specified monthly sum toward that legal financial obligation.  Restitution to victims shall be paid prior to any other payments of monetary obligations.  Any legal financial obligation that is imposed by the court may be collected by the department, which shall deliver the amount paid to the county clerk for credit.  The offender's compliance with payment of legal financial obligations shall be supervised by the department for ten years following the entry of the judgment and sentence or ten years following the offender's release from total confinement.  All monetary payments ordered shall be paid no later than ten years after the last date of release from confinement pursuant to a felony conviction or the date the sentence was entered unless the superior court extends the criminal judgment an additional ten years.  If the legal financial obligations including crime victims' assessments are not paid during the initial ten-year period, the superior court may extend jurisdiction under the criminal judgment an additional ten years as provided in RCW 9.94A.140, 9.94A.142, and 9.94A.145.  If jurisdiction under the criminal judgment is extended, the department is not responsible for supervision of the offender during the subsequent period.  Independent of the department, the party or entity to whom the legal financial obligation is owed shall have the authority to utilize any other remedies available to the party or entity to collect the legal financial obligation.  Nothing in this section makes the department, the state, or any of its employees, agents, or other persons acting on their behalf liable under any circumstances for the payment of these legal financial obligations.  If an order includes restitution as one of the monetary assessments, the county clerk shall make disbursements to victims named in the order.

    (13) Except as provided under RCW 9.94A.140(1) and 9.94A.142(1), a court may not impose a sentence providing for a term of confinement or community supervision or community placement which exceeds the statutory maximum for the crime as provided in chapter 9A.20 RCW.

    (14) All offenders sentenced to terms involving community supervision, community service, community placement, or legal financial obligation shall be under the supervision of the department of corrections and shall follow explicitly the instructions and conditions of the department of corrections.  The department may require an offender to perform affirmative acts it deems appropriate to monitor compliance with the conditions of the sentence imposed.

    (a) The instructions shall include, at a minimum, reporting as directed to a community corrections officer, remaining within prescribed geographical boundaries, notifying the community corrections officer of any change in the offender's address or employment, and paying the supervision fee assessment.

    (b) For offenders sentenced to terms involving community custody for crimes committed on or after June 6, 1996, the department may include, in addition to the instructions in (a) of this subsection, any appropriate conditions of supervision, including but not limited to, prohibiting the offender from having contact with any other specified individuals or specific class of individuals.  The conditions authorized under this subsection (14)(b) may be imposed by the department prior to or during an offender's community custody term.  If a violation of conditions imposed by the court or the department pursuant to subsection (10) of this section occurs during community custody, it shall be deemed a violation of community placement for the purposes of RCW 9.94A.207 and shall authorize the department to transfer an offender to a more restrictive confinement status as provided in RCW 9.94A.205.  At any time prior to the completion of a sex offender's term of community custody, the department may recommend to the court that any or all of the conditions imposed by the court or the department pursuant to subsection (10) of this section be continued beyond the expiration of the offender's term of community custody as authorized in subsection (10)(c) of this section.

    The department may require offenders to pay for special services rendered on or after July 25, 1993, including electronic monitoring, day reporting, and telephone reporting, dependent upon the offender's ability to pay.  The department may pay for these services for offenders who are not able to pay.

    (15) All offenders sentenced to terms involving community supervision, community service, or community placement under the supervision of the department of corrections shall not own, use, or possess firearms or ammunition.  Offenders who own, use, or are found to be in actual or constructive possession of firearms or ammunition shall be subject to the appropriate violation process and sanctions.  "Constructive possession" as used in this subsection means the power and intent to control the firearm or ammunition.  "Firearm" as used in this subsection means a weapon or device from which a projectile may be fired by an explosive such as gunpowder.

    (16) The sentencing court shall give the offender credit for all confinement time served before the sentencing if that confinement was solely in regard to the offense for which the offender is being sentenced.

    (17) A departure from the standards in RCW 9.94A.400 (1) and (2) governing whether sentences are to be served consecutively or concurrently is an exceptional sentence subject to the limitations in subsections (2) and (3) of this section, and may be appealed by the defendant or the state as set forth in RCW 9.94A.210 (2) through (6).

    (18) The court shall order restitution whenever the offender is convicted of a felony that results in injury to any person or damage to or loss of property, whether the offender is sentenced to confinement or placed under community supervision, unless extraordinary circumstances exist that make restitution inappropriate in the court's judgment.  The court shall set forth the extraordinary circumstances in the record if it does not order restitution.

    (19) As a part of any sentence, the court may impose and enforce an order that relates directly to the circumstances of the crime for which the offender has been convicted, prohibiting the offender from having any contact with other specified individuals or a specific class of individuals for a period not to exceed the maximum allowable sentence for the crime, regardless of the expiration of the offender's term of community supervision or community placement.

    (20) In any sentence of partial confinement, the court may require the defendant to serve the partial confinement in work release, in a program of home detention, on work crew, or in a combined program of work crew and home detention.

    (21) All court-ordered legal financial obligations collected by the department and remitted to the county clerk shall be credited and paid where restitution is ordered.  Restitution shall be paid prior to any other payments of monetary obligations.

 

    Sec. 6.  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 acts or threats of violence or restraining the person from going onto the grounds of or entering 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) 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:  (i) The intent to protect victims of domestic violence under RCW 10.99.010; (ii) the comparative extent of injuries inflicted or serious threats creating fear of physical injury; and (iii) the history of domestic violence between the persons involved)) has committed a domestic violence offense as defined in RCW 10.99.020.

    (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.

 


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