AN
ACT Relating to full faith and credit for foreign protection orders; amending
RCW 26.10.220, 26.26.138, 26.50.010, and 10.31.100; adding a new chapter to
Title 26 RCW; and prescribing penalties.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW
SECTION. Sec. 1.
CITATION. 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.46.040.
(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, possession, tribe, or United States military tribunal. There is a
presumption in favor of validity where an order appears authentic on its face.
A
person under restraint must be given reasonable notice and the opportunity to
be heard before the order of the foreign state, territory, possession, tribe,
or United States military tribunal was issued, provided, in the case of ex
parte orders, notice and opportunity to be heard was given as soon as possible
after the order was issued, consistent with due process.
NEW
SECTION. Sec. 5.
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. Any
out-of-state department, agency, or court responsible for maintaining
protection order records, may by facsimile or electronic transmission send a
reproduction of the foreign protection order to the clerk of the court of
Washington as long as it contains a facsimile or digital signature by any
person authorized to make such transmission.
(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;
(j)
The type and location of any other legal proceedings between the person who is
subject to the restraint provisions and the person entitled to protection.
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. 6.
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. The clerk may forward the
foreign protection order to the county sheriff by facsimile or electronic
transmission.
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. 7. 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. 8. 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. 9.
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.
NEW
SECTION. Sec. 10. CHILD
CUSTODY DISPUTES. (1) Any disputes regarding provisions in foreign protection
orders dealing with custody of children, residential placement of children, or
visitation with children shall be resolved judicially. The proper venue and
jurisdiction for such judicial proceedings shall be determined in accordance
with chapter 26.27 RCW and in accordance with the parental kidnapping
prevention act, 28 U.S.C. 1738A.
(2)
A peace officer shall not remove a child from his or her current placement
unless:
(a)
A writ of habeas corpus to produce the child has been issued by a superior
court of this state; or
(b)
There is probable cause to believe that the child is abused or neglected and
the child would be injured or could not be taken into custody if it were
necessary to first obtain a court order pursuant to RCW 13.34.050.
Sec.
11. RCW
26.10.220 and 1996 c 248 s 10 are each amended to read as follows:
(1)
Whenever a restraining order is issued under this chapter, and the person to be
restrained knows of the order, a violation of the provisions restricting the
person from acts or threats of violence or of a provision restraining the
person from going onto the grounds of or entering the residence, workplace,
school, or day care of another is a gross misdemeanor.
(2)
A person is deemed to have notice of a restraining order if:
(a)
The person to be restrained or the person's attorney signed the order;
(b)
The order recites that the person to be restrained or the person's attorney
appeared in person before the court;
(c)
The order was served upon the person to be restrained; or
(d)
The peace officer gives the person oral or written evidence of the order by
reading from it or handing to the person a certified copy of the original
order, certified to be an accurate copy of the original by a notary public or
by the clerk of the court.
(3)
A peace officer shall verify the existence of a restraining order by:
(a)
Obtaining information confirming the existence and terms of the order from a
law enforcement agency; or
(b)
Obtaining a certified copy of the order, certified to be an accurate copy of
the original by a notary public or by the clerk of the court.
(4)
A peace 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)
A restraining order has been issued under this chapter;
(b)
The respondent or person to be restrained knows of the order; and
(c)
The person to be arrested 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 the residence, workplace, school, or day care
of another.
(5)
It is a defense to prosecution under subsection (1) of this section that the
court order was issued contrary to law or court rule.
(6) No peace officer may be held criminally or civilly liable for
making an arrest under subsection (4) of this section if the officer acts in
good faith and without malice.
Sec.
12. RCW
26.26.138 and 1996 c 248 s 11 are each amended to read as follows:
(1)
Whenever a restraining order is issued under this chapter, and the person to be
restrained knows of the order, a violation of the provisions restricting the
person from acts or threats of violence or of a provision restraining the
person from going onto the grounds of or entering the residence, workplace,
school, or day care of another is a gross misdemeanor.
(2)
A person is deemed to have notice of a restraining order if:
(a)
The person to be restrained or the person's attorney signed the order;
(b)
The order recites that the person to be restrained or the person's attorney
appeared in person before the court;
(c)
The order was served upon the person to be restrained; or
(d)
The peace officer gives the person oral or written evidence of the order by
reading from it or handing to the person a certified copy of the original
order, certified to be an accurate copy of the original by a notary public or
by the clerk of the court.
(3)
A peace officer shall verify the existence of a restraining order by:
(a)
Obtaining information confirming the existence and terms of the order from a
law enforcement agency; or
(b)
Obtaining a certified copy of the order, certified to be an accurate copy of
the original by a notary public or by the clerk of the court.
(4)
A peace 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)
A restraining order has been issued under this chapter;
(b)
The respondent or person to be restrained knows of the order; and
(c)
The person to be arrested 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 the residence, workplace, school, or day care
of another.
(5)
It is a defense to prosecution under subsection (1) of this section that the
court order was issued contrary to law or court rule.
(6) No peace officer may be held criminally or civilly liable for
making an arrest under subsection (4) of this section if the officer acts in
good faith and without malice.
Sec.
13. RCW
26.50.010 and 1995 c 246 s 1 are each amended to read as follows:
As
used in this chapter, the following terms shall have the meanings given them:
(1)
"Domestic violence" means: (a) Physical harm, bodily injury,
assault, or the infliction of fear of imminent physical harm, bodily injury or
assault, between family or household members; (b) sexual assault of one family
or household member by another; or (c) stalking as defined in RCW 9A.46.110 of
one family or household member by another family or household member.
(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 ((respondent))
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)
"Dating relationship" means a social relationship of a romantic
nature. Factors that the court may consider in making this determination
include: (a) The length of time the relationship has existed; (b) the nature
of the relationship; and (c) the frequency of interaction between the parties.
(4)
"Court" includes the superior, district, and municipal courts of the
state of Washington.
(5)
"Judicial day" does not include Saturdays, Sundays, or legal
holidays.
(6)
"Electronic monitoring" means a program in which a person's presence
at a particular location is monitored from a remote location by use of
electronic equipment.
(7)
"Essential personal effects" means those items necessary for a
person's immediate health, welfare, and livelihood. "Essential personal
effects" includes but is not limited to clothing, cribs, bedding,
documents, medications, and personal hygiene items.
Sec.
14. 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)
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: (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.
(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.
NEW
SECTION. Sec. 15.
Sections 1 through 10 and 16 of this act constitute a new chapter in Title 26
RCW.
NEW
SECTION. Sec. 16.
CAPTIONS NOT LAW. Captions used in this chapter are not part of the law.
NEW
SECTION. Sec. 17. 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.
