Bill Text: AZ SB1165 | 2020 | Fifty-fourth Legislature 2nd Regular | Introduced
Bill Title: Firearm transfers; domestic violence offenses
Spectrum: Slight Partisan Bill (Republican 2-1)
Status: (Introduced - Dead) 2020-01-22 - Senate read second time [SB1165 Detail]
Download: Arizona-2020-SB1165-Introduced.html
|
REFERENCE TITLE: firearm transfers;
domestic violence offenses |
|
State of
Arizona Senate Fifty-fourth
Legislature Second Regular
Session 2020 |
|
SB 1165 |
|
|
|
Introduced by Senators Brophy McGee: Bowie, Carter |
AN ACT
amending Section
12-284, Arizona Revised Statutes, as amended by Laws 2018, chapter 317, section
1; repealing section 12-284, Arizona Revised Statutes, as amended by Laws 2018,
chapter 232, section 1; amending section 13‑3101, Arizona Revised
Statutes; amending title 13, chapter 36, Arizona Revised Statutes, by adding
section 13‑3601.03; amending section 13‑3602, Arizona Revised
Statutes; relating to firearms.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 12-284, Arizona Revised Statutes, as amended by Laws 2018, chapter 317, section 1, is amended to read:
12-284. Fees
A. Except as otherwise provided by law, the clerk of the superior court shall receive fees classified as follows:
Class Description Fee
A Initial case filing fee
Tax case $ 188.00
Filing complaint, notice of appeal
under section 12‑904 or petition 188.00
Filing intervenor 188.00
Additional plaintiffs 188.00
Filing foreign judgment 188.00
Ownership of real property becomes an
issue plaintiff 188.00
Appellant
(except under sections 12‑1809 and 13‑3602) 188.00
Change of venue to this county 188.00
Petition for change of name 188.00
Filing a process server application 188.00
B Subsequent case filing fee
Filing answer, notice of appearance
under section 12‑907 or initial appearance $ 100.00
Additional defendants 100.00
Notice of appeal to appellate courts
(except under section 12‑2107) 100.00
Cross‑appeal by appellee (except under section
12‑2107) 100.00
Ownership of real property becomes an
issue defendant 100.00
Jurisdiction exceeded appellee
(within 20 days of filing) 100.00
Response to show cause that does one or more
of the following:
1. Requests affirmative relief or
counterrelief
2. Attacks the sufficiency of process
or the proceedings
3. Takes other affirmative action 100.00
C Initial case filing fee
Filing petition for annulment $ 149.00
Filing for dissolution/legal separation petition 149.00
Petition in formal testacy or appointment
proceeding 149.00
Application for informal probate or informal
appointment 149.00
Petition for supervised administration petition
to appoint guardian 149.00
Petition to appoint conservator or make other
protective order 149.00
Opposing petition in testacy or appointment
proceedings or appointment of guardian or
conservator 149.00
Single estate application or petition under
title 14, chapter 3, section 14‑3938 149.00
Domestic relations case for which a fee is not
specifically prescribed 149.00
D Subsequent case filing fee
Filing answer to annulment $ 74.00
Filing for dissolution/legal separation answer 74.00
Any person opposing contested petition if no
prior payment made 74.00
Postadjudication petitions in
domestic relations cases 74.00
Postjudgment activities in probate cases 74.00
E Minimum clerk fee
Filing power of attorney $ 30.00
Change of venue to another county transmittal
fee 30.00
Change of venue to another county pursuant to
section 12‑404 transmittal fee 30.00
Filing transcript and docketing judgment from
any courts 30.00
Issuance of writs of: attachment, execution,
possession, restitution, prohibition and
enforcement of order of judgment‑garnishment 30.00
Certified copy or abstract of marriage
application or license 30.00
Certificate of correctness of copy of record 30.00
Justice of peace certificate 30.00
Each certificate of clerk to any matter in
clerk's record not specifically provided 30.00
Filing any paper or performing any act for which
a fee is not specifically prescribed 30.00
Subpoena - (civil) 30.00
Research in locating a document (per year or
source researched) 30.00
Exemplification (per certification) 30.00
Authentication (per certification) 30.00
Seal a court file 30.00
Reopen a sealed court file 30.00
Retrieve bank records 30.00
Reel of film alpha index per year (plus per
page fee below) 30.00
Payment history report 30.00
Certification under one document certification 30.00
Civil traffic appeal 30.00
F Per page fee
Making copies (on appeal and on request)
per page $ .50
Making extra copies per page .50
Making photographic or photostatic copies
per page .50
Comparison fee of papers furnished by applicant
per page .50
Alpha index per page .50
G Special fees
Small claim tax case $ 24.00
Marriage license and return of a
marriage license 83.00
Postage and handling 7.00
Notary services 7.00
Stop payment on check 16.00
B. The clerk of the superior court shall receive the fees prescribed in subsection A of this section for the following services:
1. Making copies of papers and records required to be made by the clerk on appeal, and copies of papers and records in the clerk's office made on request in other cases, for each legal size page of original.
2. Making extra copies of the papers and records mentioned in paragraph 1 of this subsection, required or requested for each page of copy of such papers and records.
3. In a clerk's office, in which a photographic or photostatic method of recording is used or is available for use in cooperation with other public offices, preparing copies enumerated in paragraphs 1 and 2 of this subsection for each page of copy or fraction of a page of copy. Portions of several pages of records may be combined in one page of copy. The clerk may prepare an abstract of marriage in lieu of a reproduction of the recorded marriage license. The fee shall apply to matters whether recorded in such office by longhand, typing, electronic, photographic or photostatic methods. The fees for copies are exclusive of the fees for certification or authentication.
4. Issuing a certificate as to official capacity of a justice of the peace and affixing a seal to the certificate.
5. Each subpoena issued in a civil proceeding or filing any paper or performing any act for which a fee is not specifically prescribed by law, but the clerk shall not charge for the clerk's services in administering the oath in connection with any affidavit, petition, letters or other pleading or document that, after administration of the oath, is promptly filed by the clerk and becomes a part of a case or matter of record in the office of the clerk.
C. In addition to the fees required by subsection A of this section, the clerk shall charge and collect a surcharge of fifteen dollars $15 for each filing of a postadjudication petition in a domestic relations case for which a fee presently is charged under class D in subsection A of this section. The surcharge shall be used exclusively to fund domestic relations education and mediation programs established pursuant to section 25‑413. Each month the clerk shall transmit the monies the clerk collects pursuant to this subsection to the county treasurer for deposit in the domestic relations education and mediation fund established by section 25‑413.
D. Excluding the monies that are collected pursuant to subsection C of this section, each month the clerk shall transmit seventy‑five percent of the monies collected for subsequent case filing fees for postadjudication petitions in domestic relations cases under class D in subsection A of this section to the county treasurer for deposit in the expedited child support and parenting time fund established pursuant to section 25‑412. The remaining twenty‑five percent of the monies collected pursuant to this subsection shall be distributed pursuant to section 12‑284.03.
E. At the commencement of each action for annulment, dissolution of marriage, legal separation, maternity or paternity, the petitioner shall pay to the clerk of the court the initial case filing fee for the action provided in subsection A of this section. At the time of filing a response, the respondent shall pay to the clerk of the court the subsequent case filing fee for the action provided in subsection A of this section. In each county where the superior court has established a conciliation court, the petitioner and respondent shall each pay to the clerk a sixty‑five dollar fee. The monies from the additional fee shall be used to carry out the purposes of the conciliation court pursuant to title 25, chapter 3, article 7.
F. In garnishment matters:
1. A fee shall not be charged for filing an affidavit seeking only the release of exempt wages.
2. A fee shall not be charged for filing a garnishee's answer, for filing a judgment against the garnishee or for the issuance or return of process incident to such a judgment.
3. For any contest relating to or any controversion of a garnishment matter, unless the contesting party has paid an appearance fee in that cause, the required appearance fee shall be paid, except that the garnishee shall not pay a clerk's fee.
G. A person who is cited to appear and defend an order to show cause shall not be charged an appearance fee. The person may stipulate to or consent to the entry of an order without the payment of an appearance fee. An appearance fee shall be paid if the person is present in person or by an attorney and does one or more of the following:
1. Requests affirmative relief or counterrelief.
2. Attacks the sufficiency of process or the proceedings.
3. Takes other affirmative action.
H. A petitioner shall not be charged a fee for requesting an order of protection pursuant to section 13‑3602 or an injunction against harassment pursuant to section 12‑1809. A defendant shall not be charged an answer fee in an order of protection action if the defendant requests a hearing pursuant to section 13‑3602, subsection I N or in an injunction against harassment action if the defendant requests a hearing pursuant to section 12‑1809, subsection H.
I. A person who files a registrar's order pursuant to section 32‑1166.06 shall not be charged a fee.
J. The clerk of the court shall charge and collect a forty‑six dollar filing fee for a petition for emancipation of a minor filed pursuant to chapter 15 of this title. Each month the clerk shall transmit the monies the clerk collects pursuant to this subsection to the county treasurer for deposit in the emancipation administrative costs fund established by section 12-2456.
K. Except for monies that are collected pursuant to subsections C, D, E and J of this section, the clerk of the superior court shall transmit monthly to the county treasurer all monies collected pursuant to this section for distribution or deposit pursuant to section 12‑284.03.
L. The supreme court may increase the fees prescribed in subsection A of this section in an amount not to exceed the percent of change in the average consumer price index as published by the United States department of labor, bureau of labor statistics between that figure for the latest calendar year and the calendar year in which the last fee increase occurred.
Sec. 2. Repeal
Section 12-284, Arizona Revised Statutes, as amended by Laws 2018, chapter 232, section 1, is repealed.
Sec. 3. Section 13-3101, Arizona Revised Statutes, is amended to read:
13-3101. Definitions
A. In this chapter, unless the context otherwise requires:
1. "Deadly weapon" means anything that is designed for lethal use. The term includes a firearm.
2. "Deface" means to remove, alter or destroy the manufacturer's serial number.
3. "Explosive" means any dynamite, nitroglycerine, black powder, or other similar explosive material, including plastic explosives. Explosive does not include ammunition or ammunition components such as primers, percussion caps, smokeless powder, black powder and black powder substitutes used for hand loading purposes.
4. "Firearm" means any loaded or unloaded handgun, pistol, revolver, rifle, shotgun or other weapon that will expel, is designed to expel or may readily be converted to expel a projectile by the action of an explosive. Firearm does not include a firearm in permanently inoperable condition.
5. "Improvised explosive device" means a device that incorporates explosives or destructive, lethal, noxious, pyrotechnic or incendiary chemicals and that is designed to destroy, disfigure, terrify or harass.
6. "Occupied structure" means any building, object, vehicle, watercraft, aircraft or place with sides and a floor that is separately securable from any other structure attached to it, that is used for lodging, business, transportation, recreation or storage and in which one or more human beings either are or are likely to be present or so near as to be in equivalent danger at the time the discharge of a firearm occurs. Occupied structure includes any dwelling house, whether occupied, unoccupied or vacant.
7. "Prohibited possessor" means any person:
(a) Who has been found to constitute a danger to self or to others or to have a persistent or acute disability or grave disability pursuant to court order pursuant to section 36‑540, and whose right to possess a firearm has not been restored pursuant to section 13‑925.
(b) Who has been convicted within or without this state of a felony or who has been adjudicated delinquent for a felony and whose civil right to possess or carry a firearm has not been restored.
(c) Who is at the time of possession serving a term of imprisonment in any correctional or detention facility.
(d) Who is at the time of possession serving a term of probation pursuant to a conviction for a domestic violence offense as defined in section 13‑3601 or a felony offense, parole, community supervision, work furlough, home arrest or release on any other basis or who is serving a term of probation or parole pursuant to the interstate compact under title 31, chapter 3, article 4.1.
(e) Who is an undocumented alien or a nonimmigrant alien traveling with or without documentation in this state for business or pleasure or who is studying in this state and who maintains a foreign residence abroad. This subdivision does not apply to:
(i) Nonimmigrant aliens who possess a valid hunting license or permit that is lawfully issued by a state in the United States.
(ii) Nonimmigrant aliens who enter the United States to participate in a competitive target shooting event or to display firearms at a sports or hunting trade show that is sponsored by a national, state or local firearms trade organization devoted to the competitive use or other sporting use of firearms.
(iii) Certain diplomats.
(iv) Officials of foreign governments or distinguished foreign visitors who are designated by the United States department of state.
(v) Persons who have received a waiver from the United States attorney general.
(f) Who has been found incompetent pursuant to rule 11, Arizona rules of criminal procedure, and who subsequently has not been found competent.
(g) Who is found guilty except insane.
(h) Who has been
convicted of either:
(i) A domestic violence
offense as defined in section 13‑3601 if the offense involved a dangerous
crime against children as defined in section 13‑705 or an offense prescribed
in section 13‑1102, 13‑1103 or 13‑1104, section 13‑1202,
subsection A, paragraph 1, section 13‑1203, subsection A, paragraph 1 or
3, section 13‑1204, subsection A, paragraph 1, 2, 3, 4 or 7 or subsection
B, section 13‑1303, 13‑1304 or 13‑1406 or section 13‑2904,
subsection A, paragraph 1 or 6.
(ii) Any other
offense that was committed within or without this state and that involves the
use or attempted use of physical force or the threatened use of a deadly weapon
if section 13‑3601, subsection A, paragraph 1, 2, 3, 4, 5 or 6 applies to
the relationship between the victim and the defendant.
(i) Who is
subject to an order of protection that was issued pursuant to section 13‑3602
or a similar law in another jurisdiction, and the order was issued after the
person received notice and had an opportunity to participate in the
proceedings.
8. "Prohibited weapon":
(a) Includes the following:
(i) An item that is a bomb, grenade, rocket having a propellant charge of more than four ounces or mine and that is explosive, incendiary or poison gas.
(ii) A device that is designed, made or adapted to muffle the report of a firearm.
(iii) A firearm that is capable of shooting more than one shot automatically, without manual reloading, by a single function of the trigger.
(iv) A rifle with a barrel length of less than sixteen inches, or shotgun with a barrel length of less than eighteen inches, or any firearm that is made from a rifle or shotgun and that, as modified, has an overall length of less than twenty‑six inches.
(v) A breakable container that contains a flammable liquid with a flash point of one hundred fifty degrees Fahrenheit or less and that has a wick or similar device capable of being ignited.
(vi) A chemical or combination of chemicals, compounds or materials, including dry ice, that is possessed or manufactured for the purpose of generating a gas to cause a mechanical failure, rupture or bursting or an explosion or detonation of the chemical or combination of chemicals, compounds or materials.
(vii) An improvised explosive device.
(viii) Any combination of parts or materials that is designed and intended for use in making or converting a device into an item set forth in item (i), (v) or (vii) of this subdivision.
(b) Does not include:
(i) Any fireworks that are imported, distributed or used in compliance with state laws or local ordinances.
(ii) Any propellant, propellant actuated devices or propellant actuated industrial tools that are manufactured, imported or distributed for their intended purposes.
(iii) A device that is commercially manufactured primarily for the purpose of illumination.
9. "Trafficking" means to sell, transfer, distribute, dispense or otherwise dispose of a weapon or explosive to another person, or to buy, receive, possess or obtain control of a weapon or explosive, with the intent to sell, transfer, distribute, dispense or otherwise dispose of the weapon or explosive to another person.
B. The items set forth in subsection A, paragraph 8, subdivision (a), items (i), (ii), (iii) and (iv) of this section do not include any firearms or devices that are possessed, manufactured or transferred in compliance with federal law.
Sec. 4. Title 13, chapter 36, Arizona Revised Statutes, is amended by adding section 13-3601.03, to read:
13-3601.03. Domestic violence; prohibited possessor; firearm transfer order; firearm disposal; immunity; search warrant; definition
A. At the time of sentencing, the
court shall inform, either orally or in writing, a person who is a prohibited
possessor as defined in section 13‑3101, subsection A, paragraph 7,
subdivision (h) that the person is prohibited from owning
or possessing a firearm. The court shall
indicate on the record of conviction that the conviction prohibits the person
from possessing a firearm pursuant to section 13‑3101, subsection A,
paragraph 7, subdivision (h) and section 13‑3102,
subsection A, paragraph 4 and order the person to transfer all firearms that
the person owns or possesses to the appropriate law enforcement agency or a
federally licensed firearms dealer Within twenty‑four hours after the
court issues the order.
B. The law enforcement agency or
federally licensed firearms dealer that takes possession of a transferred
firearm shall provide a proof of transfer to the person who surrendered the
firearm. The proof of transfer shall
include the name of the firearm owner or possessor, the date of the transfer
and the serial number and make and model of the transferred firearm.
C. Within forty‑eight hours
after the person is served with a transfer order, the person shall either:
1. Attest to the court that the
person did not own or possess any firearm at the time of conviction and does
not currently own or possess any firearm.
2. File a proof of transfer with the
sentencing court and attest to the court that all firearms owned or possessed
by the person were transferred to the appropriate law enforcement agency or a
federally licensed firearms dealer.
D. After providing notice to the
owner of a transferred firearm, the law enforcement agency or federally
licensed firearms dealer that receives a transferred firearm may dispose of the
firearm in accordance with state and federal law. The law
enforcement agency or federally licensed firearms dealer must provide all
monies received from the disposal of the firearm to the original firearm owner
except for any costs associated with taking possession, storing and disposing
of the firearm.
E. A person who is subject to a
transfer order may not be prosecuted for possessing, carrying or transporting a
firearm if all of the following apply:
1. the person possesses the written
transfer order.
2. the firearm is unloaded.
3. The person is transporting the firearm
directly to the appropriate law enforcement agency or a federally licensed
firearms dealer.
F. If the plaintiff or a peace
officer files an affidavit alleging that the person has failed to transfer a
firearm, the court shall determine whether probable cause exists to believe
that the person has failed to transfer a firearm that the person owns or
possesses. If the court finds that probable cause exists, the court
shall issue a warrant that describes the firearm possessed by the person and
that authorizes a search of the location where the firearm is reasonably
believed to be and the seizure of any firearm that is owned or possessed by the
person and discovered pursuant to the search. The Failure to comply
with the surrender of a firearm is grounds for the issuance of a search
warrant.
G. For the purposes of this section, "domestic violence offense" means an offense involving domestic violence as defined in section 13‑3601.
Sec. 5. Section 13-3602, Arizona Revised Statutes, is amended to read:
13-3602. Order of protection; procedure; contents; arrest for violation; penalty; protection order from another jurisdiction; firearm transfer order; immunity; search warrant; definition
A. A person may file a verified petition, as in civil actions, with a magistrate, justice of the peace or superior court judge for an order of protection for the purpose of restraining a person from committing an act included in domestic violence. If the person is a minor, the parent, legal guardian or person who has legal custody of the minor shall file the petition unless the court determines otherwise. The petition shall name the parent, guardian or custodian as the plaintiff and the minor is a specifically designated person for the purposes of subsection G of this section. If a person is either temporarily or permanently unable to request an order, a third party may request an order of protection on behalf of the plaintiff. After the request, the judicial officer shall determine if the third party is an appropriate requesting party for the plaintiff. For the purposes of this section, notwithstanding the location of the plaintiff or defendant, any court in this state may issue or enforce an order of protection.
B. An order of protection shall not be granted:
1. Unless the party who requests the order files a written verified petition for an order.
2. Against a person who is less than twelve years of age unless the order is granted by the juvenile division of the superior court.
3. Against more than one defendant.
C. The petition shall state the:
1. Name of the plaintiff. The plaintiff's address and contact information shall be disclosed to the court for purposes of service and notification. The address and contact information shall not be listed on the petition. Whether or not the court issues an order of protection, the plaintiff's address and contact information shall be maintained in a separate document or automated database and is not subject to release or disclosure by the court or any form of public access except as ordered by the court.
2. Name and address, if known, of the defendant.
3. Specific statement, including dates, of the domestic violence alleged.
4. Relationship between the parties pursuant to section 13‑3601, subsection A and whether there is pending between the parties an action for maternity or paternity, annulment, legal separation or dissolution of marriage.
5. Name of the court in which any prior or pending proceeding or order was sought or issued concerning the conduct that is sought to be restrained.
6. Desired relief.
D. A fee shall not be charged for filing a petition under this section or for service of process. Each court shall provide, without charge, forms for purposes of this section for assisting parties without counsel. The court shall make reasonable efforts to provide the appropriate information to both parties on emergency and counseling services that are available in the local area.
E. The court shall review the petition, any other pleadings on file and any evidence offered by the plaintiff, including any evidence of harassment by electronic contact or communication, to determine whether the orders requested should issue without further hearing. The court shall issue an order of protection under subsection G of this section if the court determines that there is reasonable cause to believe any of the following:
1. The defendant may commit an act of domestic violence.
2. The defendant has committed an act of domestic violence within the past year or within a longer period of time if the court finds that good cause exists to consider a longer period.
F. For the purposes of determining the period of time under subsection E, paragraph 2 of this section, any time that the defendant has been incarcerated or out of this state shall not be counted. If the court denies the requested relief, it may schedule a further hearing within ten days, with reasonable notice to the defendant.
G. If a court issues an order of protection, the court may do any of the following:
1. Enjoin the defendant from committing a violation of one or more of the offenses included in domestic violence.
2. Grant one party the use and exclusive possession of the parties' residence on a showing that there is reasonable cause to believe that physical harm may otherwise result. If the other party is accompanied by a law enforcement officer, the other party may return to the residence on one occasion to retrieve belongings. A law enforcement officer is not liable for any act or omission in the good faith exercise of the officer's duties under this paragraph.
3. Restrain the defendant from contacting the plaintiff or other specifically designated persons and from coming near the residence, place of employment or school of the plaintiff or other specifically designated locations or persons on a showing that there is reasonable cause to believe that physical harm may otherwise result.
4. If the order of protection was issued before notice and a hearing at which the defendant had an opportunity to participate and the court finds that the defendant is a credible threat to the physical safety of the plaintiff or other specifically designated persons, prohibit the defendant from possessing or purchasing a firearm for the duration of the order. If the court prohibits the defendant from possessing a firearm, the court shall also order the defendant to transfer any firearm owned or possessed by the defendant immediately after service of the order to the appropriate law enforcement agency or a federally licensed firearms dealer for the duration of the order. If the defendant does not immediately transfer the firearm, the defendant shall transfer the firearm within twenty‑four hours after service of the order in accordance with the requirements in subsection I of this section.
5. If the order was issued after notice and a hearing at which the defendant had an opportunity to participate, require the defendant to complete a domestic violence offender treatment program that is provided by a facility approved by the department of health services or a probation department or any other program deemed appropriate by the court.
6. Grant relief that is necessary for the protection of the alleged victim and other specifically designated persons and that is proper under the circumstances.
7. Grant the plaintiff the exclusive care, custody or control of any animal that is owned, possessed, leased, kept or held by the plaintiff, the defendant or a minor child residing in the residence or household of the plaintiff or the defendant, and order the defendant to stay away from the animal and forbid the defendant from taking, transferring, encumbering, concealing, committing an act of cruelty or neglect in violation of section 13‑2910 or otherwise disposing of the animal.
H. If the court issues an order of
protection after notice and a hearing at which the defendant had an opportunity
to participate, The court shall prohibit the defendant from possessing or
purchasing a firearm and shall order the defendant to transfer any firearm
owned or possessed by the defendant immediately after service of the order to
the appropriate law enforcement agency or a federally licensed firearms dealer
for the duration of the order. If the
defendant does not immediately transfer the firearm, the defendant shall
transfer the firearm within twenty‑four hours after service of the
transfer order.
I. If a defendant is ordered to
transfer a firearm to the appropriate law enforcement agency or a federally
licensed firearms dealer pursuant to subsection G, paragraph 4 or subsection H
of this section, all of the following apply:
1. The law enforcement agency or
federally licensed firearms dealer that takes possession of a transferred
firearm shall provide a proof of transfer to the defendant who surrendered the
firearm. The proof of transfer shall include the name of the firearm
owner or possessor, the date of the transfer and the serial number and make and
model of the transferred firearm.
2. Within forty‑eight hours
after service of the transfer order, the defendant shall either:
(a) Attest to
the court that the defendant did not own or possess any firearm when the
defendant received the transfer order and does not currently own or possess any
firearm.
(b) File a
proof of transfer with the court and attest to the court that all firearms
owned or possessed by the defendant were transferred to the appropriate law
enforcement agency or a federally licensed firearms dealer.
3. After the order of protection
expires and on the defendant's request, the law enforcement agency or federally
licensed firearms dealer shall return any temporarily transferred firearm to
the defendant unless the order is extended or the defendant is otherwise
prohibited from possessing a firearm pursuant to federal or state law. Before returning a firearm to the defendant,
the law enforcement agency or federally licensed firearms dealer must conduct a
check of available records and contact the national instant criminal background
check system to ensure that the defendant is no longer prohibited from
possessing a firearm pursuant to federal or state law.
4. A defendant who is subject to a
transfer order may not be prosecuted for possessing, carrying or transporting a
firearm if all of the following apply:
(a) the
defendant possesses the written transfer order.
(b) the firearm
is unloaded.
(c) The
defendant is transporting the firearm directly to the appropriate law enforcement
agency or a federally licensed firearms dealer.
5. If the plaintiff or a peace
officer files an affidavit alleging that the defendant has failed to transfer a
firearm, the court shall determine whether probable cause exists to believe
that the defendant has failed to transfer a firearm that the defendant owns or
possesses. If the court finds that
probable cause exists, the court shall issue a warrant that describes the
firearm possessed by the defendant and that authorizes a search of the location
where the firearm is reasonably believed to be and the seizure of any firearm
that is owned or possessed by the defendant and discovered pursuant to the
search. The Failure to comply with the surrender of a firearm is
grounds for the issuance of a search warrant.
H. J. The court shall not grant a mutual order of protection. If opposing parties separately file verified petitions for an order of protection, the courts after consultation between the judges involved may consolidate the petitions of the opposing parties for hearing. This does not prohibit a court from issuing cross orders of protection.
I. K. After granting an order of protection, the court shall provide the order to a law enforcement agency or a constable as set forth in subsection J L of this section for service or to an entity that is authorized in subsection K M of this section to serve process. The agency or entity serving the order shall provide confirmation of service to the plaintiff as soon as practicable. If service of an order cannot be completed within fifteen days after the agency or entity receives the order, the agency or entity that is attempting service shall notify the plaintiff and continue to attempt service. This notification may be completed by a victim notification system, if available.
J. L. If the order of protection is provided to a law enforcement agency or a constable, service of an order of protection is as follows:
1. For each order of protection that is issued by a municipal court, if the defendant can be served within that city or town, the order shall be served by the law enforcement agency of that city or town. If the order can be served in another city or town, the order shall be served by the law enforcement agency of that city or town. If the order cannot be served within a city or town, the order shall be served by the sheriff or constable of the county in which the defendant can be served.
2. For each order of protection that is issued by a justice of the peace, the order of protection shall be served by the sheriff or constable of the county in which the defendant can be served or by a municipal law enforcement agency.
3. For each order of protection that is issued by a superior court judge or commissioner, the order of protection shall by served by the sheriff or constable of the county where the defendant can be served.
K. M. In addition to persons authorized to serve process pursuant to rule 4(d) of the Arizona rules of civil procedure, a peace officer or a correctional officer as defined in section 41-1661 who is acting in the officer's official capacity may serve an order of protection that is issued pursuant to this section. Service of the order of protection has priority over other service of process that does not involve an immediate threat to the safety of a person.
L. N. At any time during the period during which the order is in effect, a party who is under an order of protection or who is restrained from contacting the other party is entitled to one hearing on written request. No fee may be charged for requesting a hearing. A hearing that is requested by a party who is under an order of protection or who is restrained from contacting the other party shall be held within ten days from the date requested unless the court finds good cause to continue the hearing. If exclusive use of the home is awarded, the hearing shall be held within five days from the date requested. The hearing shall be held at the earliest possible time. An ex parte order that is issued under this section shall state on its face that the defendant is entitled to a hearing on written request and shall include the name and address of the judicial office where the request may be filed. After the hearing, the court may modify, quash or continue the order.
M. O. The order shall include the following statement:
Warning
This is an official court order. If you disobey this order, you will be subject to arrest and prosecution for the crime of interfering with judicial proceedings and any other crime you may have committed in disobeying this order.
N. P. An order of protection that is not served on the defendant within one year after the date that the order is issued expires. An order is effective on the defendant on service of a copy of the order and petition. An order expires one year after service on the defendant. A modified order is effective on service and expires one year after service of the initial order and petition.
O. Q. A supplemental information form that is used by the court or a law enforcement agency solely for the purposes of service of process on the defendant and that contains information provided by the plaintiff is confidential.
P. R. Each affidavit, declaration, acceptance or return of service shall be filed as soon as practicable but not later than seventy‑two hours, excluding weekends and holidays, with the clerk of the issuing court or as otherwise required by court rule. This filing shall be completed in person, electronically or by fax. Within twenty‑four hours after the affidavit, declaration, acceptance or return of service has been filed, excluding weekends and holidays, the court from which the order or any modified order was issued shall register the order with the national crime information center. The supreme court shall maintain a central repository for orders of protection so that the existence and validity of the orders can be easily verified. The effectiveness of an order does not depend on its registration, and for enforcement purposes pursuant to section 13‑2810, a copy of an order of the court, whether or not registered, is presumed to be a valid existing order of the court for a period of one year from the date of service of the order on the defendant.
Q. S. A peace officer, with or without a warrant, may arrest a person if the peace officer has probable cause to believe that the person has violated section 13‑2810 by disobeying or resisting an order that is issued in any jurisdiction in this state pursuant to this section, whether or not such violation occurred in the presence of the officer. Criminal violations of an order issued pursuant to this section shall be referred to an appropriate law enforcement agency. The provisions for release under section 13‑3883, subsection A, paragraph 4 and section 13‑3903 do not apply to an arrest made pursuant to this section. For the purposes of this section, any court in this state has jurisdiction to enforce a valid order of protection that is issued in this state and that has been violated in any jurisdiction in this state.
R. T. A person who is arrested pursuant to subsection Q S of this section may be released from custody in accordance with the Arizona rules of criminal procedure or any other applicable statute. An order for release, with or without an appearance bond, shall include pretrial release conditions that are necessary to provide for the protection of the alleged victim and other specifically designated persons and may provide for any other additional conditions that the court deems appropriate, including participation in any counseling programs available to the defendant. The agency with custody of the defendant shall make reasonable efforts to contact the victim and other specifically designated persons in the order of protection, if known to the custodial agency, who requested notification immediately on release of the arrested person from custody.
S. U. The remedies provided in this section for enforcement of the orders of the court are in addition to any other civil and criminal remedies available. The superior court shall have exclusive jurisdiction to issue orders of protection in all cases if it appears from the petition that an action for maternity or paternity, annulment, legal separation or dissolution of marriage is pending between the parties. A municipal court or justice court shall not issue an order of protection if it appears from the petition that an action for maternity or paternity, annulment, legal separation or dissolution of marriage is pending between the parties. After issuance of an order of protection, if the municipal court or justice court determines that an action for maternity or paternity, annulment, legal separation or dissolution of marriage is pending between the parties, the municipal court or justice court shall stop further proceedings in the action and forward all papers, together with a certified copy of docket entries or any other record in the action, to the superior court where they shall be docketed in the pending superior court action and shall proceed as though the petition for an order of protection had been originally brought in the superior court. Notwithstanding any other law and unless prohibited by an order of the superior court, a municipal court or justice court may hold a hearing on all matters relating to its ex parte order of protection if the hearing was requested before receiving written notice of the pending superior court action. No An order of protection shall not be invalid or determined to be ineffective merely because it was issued by a lower court at a time when an action for maternity or paternity, annulment, legal separation or dissolution of marriage was pending in a higher court. After a hearing with notice to the affected party, the court may enter an order requiring any party to pay the costs of the action, including reasonable attorney fees, if any. An order that is entered by a justice court or municipal court after a hearing pursuant to this section may be appealed to the superior court as provided in title 22, chapter 2, article 4, section 22‑425, subsection B and the superior court rules of civil appellate procedure without regard to an amount in controversy. No fee may be charged to either party for filing an appeal. For the purposes of this subsection, "pending" means, with respect to an action for annulment, legal separation or dissolution of marriage or for maternity or paternity, either that:
1. An action has been commenced but a final judgment, decree or order has not been entered.
2. A post‑decree proceeding has been commenced but a judgment, decree or order finally determining the proceeding has not been entered.
T. V. A peace officer who makes an arrest pursuant to this section or section 13‑3601 is not civilly or criminally liable for the arrest if the officer acts on probable cause and without malice.
U. W. A valid protection order that is related to domestic or family violence and that is issued by a court in another state, a court of a United States territory or a tribal court shall be accorded full faith and credit and shall be enforced as if it were issued in this state for as long as the order is effective in the issuing jurisdiction. For the purposes of this subsection:
1. A protection order includes any injunction or other order that is issued for the purpose of preventing violent or threatening acts or harassment against, contact or communication with or physical proximity to another person. A protection order includes temporary and final orders other than support or child custody orders that are issued by civil and criminal courts if the order is obtained by the filing of an independent action or is a pendente lite order in another proceeding. The civil order shall be issued in response to a complaint, petition or motion that was filed by or on behalf of a person seeking protection.
2. A protection order is valid if the issuing court had jurisdiction over the parties and the matter under the laws of the issuing state, a United States territory or an Indian tribe and the person against whom the order was issued had reasonable notice and an opportunity to be heard. If the order is issued ex parte, the notice and opportunity to be heard shall be provided within the time required by the laws of the issuing state, a United States territory or an Indian tribe and within a reasonable time after the order was issued.
3. A mutual protection order that is issued against both the party who filed a petition or a complaint or otherwise filed a written pleading for protection against abuse and the person against whom the filing was made is not entitled to full faith and credit if either:
(a) The person against whom an initial order was sought has not filed a cross or counter petition or other written pleading seeking a protection order.
(b) The issuing court failed to make specific findings supporting the entitlement of both parties to be granted a protection order.
4. A peace officer may presume the validity of and rely on a copy of a protection order that is issued by another state, a United States territory or an Indian tribe if the order was given to the officer by any source. A peace officer may also rely on the statement of any person who is protected by the order that the order remains in effect. A peace officer who acts in good faith reliance on a protection order is not civilly or criminally liable for enforcing the protection order pursuant to this section.
V. X. For
the purposes of this section, "victim notification system" means an
automated system that may provide plaintiffs and crime victims with an automated
notification regarding the person's case.
