Bill Text: AZ SB1226 | 2014 | Fifty-first Legislature 2nd Regular | Engrossed
Bill Title: Predominant aggressor; domestic violence; arrest
Spectrum: Partisan Bill (Republican 1-0)
Status: (Engrossed - Dead) 2014-04-15 - Transmit to Senate [SB1226 Detail]
Download: Arizona-2014-SB1226-Engrossed.html
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House Engrossed Senate Bill |
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State of Arizona Senate Fifty-first Legislature Second Regular Session 2014
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SENATE BILL 1226 |
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AN ACT
Amending section 13-3601, Arizona Revised Statutes; relating to domestic violence.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 13-3601, Arizona Revised Statutes, is amended to read:
13-3601. Domestic violence; definition; classification; sentencing option; arrest and procedure for violation; weapon seizure
A. "Domestic violence" means any act that is a dangerous crime against children as defined in section 13‑705 or an offense prescribed in section 13‑1102, 13‑1103, 13‑1104, 13‑1105, 13‑1201, 13‑1202, 13‑1203, 13‑1204, 13‑1302, 13‑1303, 13‑1304, 13‑1406, 13‑1502, 13‑1503, 13‑1504, 13‑1602 or 13‑2810, section 13‑2904, subsection A, paragraph 1, 2, 3 or 6, section 13‑2910, subsection A, paragraph 8 or 9, section 13-2915, subsection A, paragraph 3 or section 13‑2916, 13‑2921, 13‑2921.01, 13‑2923, 13‑3019, 13‑3601.02 or 13‑3623, if any of the following applies:
1. The relationship between the victim and the defendant is one of marriage or former marriage or of persons residing or having resided in the same household.
2. The victim and the defendant have a child in common.
3. The victim or the defendant is pregnant by the other party.
4. The victim is related to the defendant or the defendant's spouse by blood or court order as a parent, grandparent, child, grandchild, brother or sister or by marriage as a parent‑in‑law, grandparent‑in‑law, stepparent, step‑grandparent, stepchild, step‑grandchild, brother‑in‑law or sister‑in‑law.
5. The victim is a child who resides or has resided in the same household as the defendant and is related by blood to a former spouse of the defendant or to a person who resides or who has resided in the same household as the defendant.
6. The relationship between the victim and the defendant is currently or was previously a romantic or sexual relationship. The following factors may be considered in determining whether the relationship between the victim and the defendant is currently or was previously a romantic or sexual relationship:
(a) The type of relationship.
(b) The length of the relationship.
(c) The frequency of the interaction between the victim and the defendant.
(d) If the relationship has terminated, the length of time since the termination.
B. A peace officer, with or without a warrant, may
arrest a person if the officer has probable cause to believe that domestic
violence has been committed and the officer has probable cause to believe that
the person to be arrested has committed the offense, whether the offense is a
felony or a misdemeanor and whether the offense was committed within or without
the presence of the peace officer. In cases of domestic violence
involving the infliction of physical injury or involving the discharge, use or
threatening exhibition of a deadly weapon or dangerous instrument, the peace
officer shall arrest a person who is at least fifteen years of age, with or
without a warrant, if the officer has probable cause to believe that the
offense has been committed and the officer has probable cause to believe that the
person to be arrested has committed the offense, whether the offense was
committed within or without the presence of the peace officer, unless the
officer has reasonable grounds to believe that the circumstances at the time
are such that the victim will be protected from further
injury. Failure to make an arrest does not give rise to civil
liability except pursuant to section 12‑820.02. In order to
arrest both parties, the peace officer shall have probable cause to believe
that both parties each party independently have has
committed an a separate act of domestic
violence. An act of self‑defense that is justified under
chapter 4 of this title is not deemed to be an act of domestic
violence. The release procedures available under section 13‑3883,
subsection A, paragraph 4 and section 13‑3903 are not applicable to
arrests made pursuant to this subsection.
C. Before arresting both parties for domestic violence, a peace officer shall evaluate each alleged act of domestic violence to determine if either party was the predominant aggressor. If the officer determines that one party is the predominant aggressor, the officer may choose not to arrest the party who is not the predominant aggressor. To determine if one party is the predominant aggressor, the peace officer shall consider all of the following:
1. Previous acts involving domestic violence committed by either party.
2. The injuries suffered by each party and whether or not the injury was caused by an act of self defense.
3. Any coercive control behaviors. For the purposes of this paragraph, "coercive control" means the controlling and psychologically destructive behaviors that are used by one person against another person when the person exhibits a pattern of any of the following to intimidate or control the other person:
(a) Using language to demean, degrade or humiliate the other person.
(b) Restricting the other person's social activities or access to financial assets.
(c) Threatening suicide, injury to others in the household or injury to or separation from pets to obtain the other person's compliance.
(d) Threatening to harm, withhold or conceal children as a means of obtaining the other person's compliance.
(e) Using force or threats of force to impede the other person's attempt to report criminal acts to law enforcement, medical personnel or third parties.
(f) Monitoring the other person's internet and cell phone activities, telephone conversations or other communications.
4. In the presence of conflicting statements, the plausibility of each party's statements.
5. Any other relevant factors and available evidence, including any witness statements.
C. D. A peace
officer may question the persons who are present to determine if a firearm is
present on the premises. On learning or observing that a firearm is
present on the premises, the peace officer may temporarily seize the firearm if
the firearm is in plain view or was found pursuant to a consent to search and
if the officer reasonably believes that the firearm would expose the victim or
another person in the household to a risk of serious bodily injury or
death. A firearm that is owned or possessed by the victim shall not
be seized unless there is probable cause to believe that both parties
independently have committed an act of domestic violence.
D. E. If a firearm
is seized pursuant to subsection C D of this section, the peace
officer shall give the owner or possessor of the firearm a receipt for each
seized firearm. The receipt shall indicate the identification or
serial number or other identifying characteristic of each seized firearm. Each
seized firearm shall be held for at least seventy‑two hours by the law
enforcement agency that seized the firearm.
E. F. If a firearm
is seized pursuant to subsection C D of this section, the
victim shall be notified by a peace officer before the firearm is released from
temporary custody.
F. G. If there is
reasonable cause to believe that returning a firearm to the owner or possessor
may endanger the victim, the person who reported the assault or threat or
another person in the household, the prosecutor shall file a notice of intent
to retain the firearm in the appropriate superior, justice or municipal
court. The prosecutor shall serve notice on the owner or possessor
of the firearm by certified mail. The notice shall state that the
firearm will be retained for not more than six months following the date of
seizure. On receipt of the notice, the owner or possessor may
request a hearing for the return of the firearm, to dispute the grounds for
seizure or to request an earlier return date. The court shall hold
the hearing within ten days after receiving the owner's or possessor's request
for a hearing. At the hearing, unless the court determines that the return of
the firearm may endanger the victim, the person who reported the assault or
threat or another person in the household, the court shall order the return of
the firearm to the owner or possessor.
G. H. A peace
officer is not liable for any act or omission in the good faith exercise of the
officer's duties under subsections C, D,
E, and F
and G of this section.
H. I. Each
indictment, information, complaint, summons or warrant that is issued and that
involves domestic violence shall state that the offense involved domestic violence
and shall be designated by the letters DV. A domestic violence charge shall not
be dismissed or a domestic violence conviction shall not be set aside for
failure to comply with this subsection.
I. J. A person who
is arrested pursuant to subsection B of this section may be released from
custody in accordance with the Arizona rules of criminal procedure or any other
applicable statute. Any 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 additional conditions that the court
deems appropriate, including participation in any counseling programs available
to the defendant.
J. K. When a peace
officer responds to a call alleging that domestic violence has been or may be
committed, the officer shall inform in writing any alleged or potential victim
of the procedures and resources available for the protection of the victim including:
1. An order of protection pursuant to section 13‑3602, an injunction pursuant to section 25‑315 and an injunction against harassment pursuant to section 12‑1809.
2. The emergency telephone number for the local police agency.
3. Telephone numbers for emergency services in the local community.
4. Websites for local resources related to domestic violence.
K. L. A peace
officer is not civilly liable for noncompliance with subsection J K of this section.
L. M. If a person is
convicted of an offense involving domestic violence and the victim was pregnant
at the time of the commission of the offense, at the time of sentencing the
court shall take into consideration the fact that the victim was pregnant and
may increase the sentence.
M. N. An offense that
is included in domestic violence carries the classification prescribed in the
section of this title in which the offense is classified. If the
defendant committed a felony offense listed in subsection A of this section
against a pregnant victim and knew that the victim was pregnant or if the
defendant committed a felony offense causing physical injury to a pregnant
victim and knew that the victim was pregnant, the maximum sentence otherwise
authorized for that violation shall be increased by up to two years.
N. O. When a peace
officer responds to a call alleging that domestic violence has been or may be
committed, the officer shall determine if a minor is present. If a minor is
present, the peace officer shall conduct a child welfare check to determine if
the child is safe and if the child might be a victim of domestic violence or
child abuse.
