§586-11 - Violation of an order for protection. - Hawaii Statutes

     §586-11  Violation of an order for protection.  (a)  [Repeal and reenactment on July 1, 2010.  L 2009, c 11, §19.]  Whenever an order for protection is granted pursuant to this chapter, a respondent or person to be restrained who knowingly or intentionally violates the order for protection is guilty of a misdemeanor.  A person convicted under this subsection shall undergo domestic violence intervention at any available domestic violence program as ordered by the court.  The court additionally shall sentence a person convicted under this subsection as follows:

     (1)  For a first conviction for violation of the order for protection:

         (A)  That is in the nature of non-domestic abuse, the person may be sentenced to a jail sentence of forty-eight hours and be fined not more than $150; provided that the court shall not sentence a defendant to pay a fine unless the defendant is or will be able to pay the fine;

         (B)  That is in the nature of domestic abuse, the person shall be sentenced to a mandatory minimum jail sentence of not less than forty-eight hours and be fined not less than $150 nor more than $500; provided that the court shall not sentence a defendant to pay a fine unless the defendant is or will be able to pay the fine;

     (2)  For a second conviction for violation of the order for protection:

         (A)  That is in the nature of non-domestic abuse, and occurs after a first conviction for violation of the same order that was in the nature of non-domestic abuse, the person shall be sentenced to a mandatory minimum jail sentence of not less than forty-eight hours and be fined not more than $250; provided that the court shall not sentence a defendant to pay a fine unless the defendant is or will be able to pay the fine;

         (B)  That is in the nature of domestic abuse, and occurs after a first conviction for violation of the same order that was in the nature of domestic abuse, the person shall be sentenced to a mandatory minimum jail sentence of not less than thirty days and be fined not less than $250 nor more than $1,000; provided that the court shall not sentence a defendant to pay a fine unless the defendant is or will be able to pay the fine;

         (C)  That is in the nature of non-domestic abuse, and occurs after a first conviction for violation of the same order that was in the nature of domestic abuse, the person shall be sentenced to a mandatory minimum jail sentence of not less than forty-eight hours and be fined not more than $250; provided that the court shall not sentence a defendant to pay a fine unless the defendant is or will be able to pay the fine;

         (D)  That is in the nature of domestic abuse, and occurs after a first conviction for violation of the same order that is in the nature of non-domestic abuse, the person shall be sentenced to a mandatory minimum jail sentence of not less than forty-eight hours and be fined not more than $150; provided that the court shall not sentence a defendant to pay a fine unless the defendant is or will be able to pay the fine;

     (3)  For any subsequent violation that occurs after a second conviction for violation of the same order for protection, the person shall be sentenced to a mandatory minimum jail sentence of not less than thirty days and be fined not less than $250 nor more than $1,000; provided that the court shall not sentence a defendant to pay a fine unless the defendant is or will be able to pay the fine.

     Upon conviction and sentencing of the defendant, the court shall order that the defendant immediately be incarcerated to serve the mandatory minimum sentence imposed; provided that the defendant may be admitted to bail pending appeal pursuant to chapter 804.  The court may stay the imposition of the sentence if special circumstances exist.

     The court may suspend any jail sentence under subparagraphs (1)(A) and (2)(C), upon condition that the defendant remain alcohol and drug-free, conviction-free, or complete court-ordered assessments or intervention.  Nothing in this subsection shall be construed as limiting the discretion of the judge to impose additional sanctions authorized in sentencing for a misdemeanor offense.  All remedies for the enforcement of judgments shall apply to this chapter.

     If the court finds that the defendant has knowledge of the location of any protected party's residence, place of employment, or school, in addition to any other penalties provided in this subsection, the court may, as a condition of probation, prohibit contact with the protected party through the establishment of court-defined geographic exclusion zones, including the areas in and around the protected party's residence, place of employment, or school, and order that the defendant wear a global positioning satellite tracking device designed to transmit and record the defendant's location data.  If the defendant enters a court-defined geographic exclusion zone, the defendant's location data shall be immediately transmitted to the protected party and to the police through any appropriate means, including the telephone, an electronic beeper, or a paging device.  The global positioning satellite tracking device and its tracking shall be administered by the court.  If a court finds that the defendant has entered a geographic exclusion zone, the court shall revoke the probation and the defendant shall be fined, imprisoned, or both, as provided in this subsection.  Based on the defendant's ability to pay, the court may also order the defendant to pay the monthly costs or portion thereof for monitoring by the global positioning satellite tracking system.

     (b)  Any fines collected pursuant to subsection (a) shall be deposited into the spouse and child abuse special account established under section 601-3.6. [L 1982, c 123, pt of §2; am L 1992, c 290, §6; am L 1993, c 229, §1; am L 1999, c 200, §2; am L 2008, c 180, §§2, 6]

 

Case Notes

 

  Family court's dismissal of petition alleging misdemeanor under section upheld where, under §586-6, defendant not personally served with protective order and not present at hearing at which order issued, despite defendant's actual knowledge of order.  72 H. 493, 824 P.2d 106.

  Allegations in its bill of particulars, to which the State's proof was limited, that defendant argued with wife about visitation at wife's residence, was insufficient to constitute a violation of this section, where order of protection allowed limited contact with defendant's wife for the purpose of visitation.  92 H. 449 (App.), 992 P.2d 718.

  Pursuant to this chapter, absent special circumstances, the family court should not be involved in any stage of the prosecution of an allegation of a knowing or intentional violation of a protective order by an adult person, including the stage where the allegations are referred to the police or the prosecutor, other than to simply advise interested parties that the proper place to present such allegations is to the police or the prosecutor, not to the family court.  99 H. 363 (App.), 55 P.3d 856.

  When defendant knowingly contacted wife to discuss a topic other than visitation, defendant violated this section.  105 H. 274 (App.), 96 P.3d 603.