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H. B. No. 112 As IntroducedAs Introduced
128th General Assembly | Regular Session | 2009-2010 |
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Cosponsors:
Representatives Luckie, Murray, Phillips
A BILL
To amend sections 2903.213 and 2919.26 of the Revised
Code to authorize a court that issues a temporary
protection order in specified criminal cases to
require the alleged offender, as a condition of
pretrial release, to be monitored by a global
positioning system device at the alleged
offender's expense.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2903.213 and 2919.26 of the Revised
Code be amended to read as follows:
Sec. 2903.213. (A) Except when the complaint involves a
person who is a family or household member as defined in section
2919.25 of the Revised Code, upon the filing of a complaint that
alleges a violation of section 2903.11, 2903.12, 2903.13, 2903.21,
2903.211,
2903.22, or
2911.211 of the Revised Code, a violation
of
a municipal ordinance
substantially similar to section 2903.13,
2903.21, 2903.211, 2903.22, or
2911.211 of the Revised Code, or
the commission of a sexually oriented offense, the
complainant,
the alleged victim,
or a family or household member
of an alleged
victim may file a motion
that requests the issuance
of a
protection
order as a pretrial condition of release of the
alleged
offender, in
addition to any bail set under Criminal Rule
46. The
motion
shall be filed with the clerk of the court that
has
jurisdiction
of the case at any time after the filing of the
complaint. If
the complaint involves a person who is a family or
household
member, the complainant, the alleged victim, or the
family or
household member may file a motion for a temporary
protection order pursuant to section 2919.26 of the Revised Code.
(B) A motion for a protection order under this section shall
be prepared on a form that is provided by the clerk of the court,
and the form shall be substantially as follows:
"Motion for Protection Order
............................
Name and address of court
.............................
(Name of person),
moves the court to issue a protection order
containing terms designed to ensure the safety and protection of
the complainant or the alleged victim in the above-captioned
case,
in relation to the named defendant, pursuant to
its authority to
issue a protection order under section
2903.213 of
the Revised
Code.
A complaint, a copy of which has been attached to this
motion, has been filed in this court charging the named defendant
with a violation of section 2903.11, 2903.12, 2903.13, 2903.21,
2903.211,
2903.22, or
2911.211 of the Revised Code, a violation
of
a municipal ordinance
substantially similar to section 2903.13,
2903.21, 2903.211, 2903.22, or
2911.211 of the Revised Code, or
the commission of a sexually oriented offense.
I understand that I must appear before the court, at a time
set by the court not later than the next day that the court is in
session after the filing of this motion, for a hearing on the
motion, and that any protection order granted
pursuant to this
motion is a pretrial condition of release and is
effective only
until the disposition of the criminal proceeding
arising out of
the attached complaint or until the issuance under section
2903.214 of the Revised Code of a protection order arising out of
the same activities as
those that were the basis of the attached
complaint.
.....................................
.....................................
(C)(1) As soon as possible after the filing of a motion that
requests the issuance of a protection order
under this section,
but
not later than the next day that the court is in session after
the filing of the motion, the court shall conduct a hearing to
determine whether to issue the order. The person who
requested
the
order shall
appear before the court and provide the court with
the
information that it requests concerning the basis of the
motion.
If the court finds that the safety and protection of the
complainant or the alleged victim may be impaired by the continued
presence of the
alleged offender, the court may issue a
protection
order under this section, as a pretrial condition of release, that
contains terms
designed to ensure the safety and protection of the
complainant or the
alleged victim,
including a requirement that
the alleged offender refrain from
entering the residence, school,
business, or place of employment
of the complainant or the alleged
victim and a requirement that the alleged offender be monitored by
means of a global positioning system device. If the court requires
that the alleged offender be monitored by a global positioning
system device, the alleged offender shall pay the cost of the
monitoring.
(2)(a) If
the court issues a protection order under this
section that
includes a requirement that the alleged offender
refrain from
entering the residence, school, business, or place of
employment
of the complainant or the alleged victim, the order
shall clearly state
that the order
cannot be waived or nullified
by an invitation to the alleged
offender from the complainant, the
alleged victim, or a family or
household member to enter the
residence, school,
business, or place of employment or by the
alleged offender's
entry into one of those places otherwise upon
the consent of the
complainant, the alleged victim, or a family or
household
member.
(b) Division
(C)(2)(a)
of this section does not limit any
discretion of a court to
determine that an alleged offender
charged with a violation of
section 2919.27 of the Revised Code,
with a violation of a
municipal ordinance substantially equivalent
to that section, or
with contempt of court, which charge is based
on an alleged
violation of a protection order issued under this
section, did
not commit the violation or was not in contempt of
court.
(D)(1) Except when the complaint involves a person who is
a
family or household member as defined in section 2919.25 of the
Revised Code, upon the filing of a complaint that alleges a
violation specified in division (A) of this section, the court,
upon its own
motion, may issue a protection order under this
section as a
pretrial condition of release
of the alleged offender
if it finds that the safety and
protection of the complainant or
the alleged victim may be impaired by
the continued
presence of
the alleged offender.
(2) If the court issues a protection order
under this
section
as an ex parte order, it shall conduct, as
soon as
possible after
the issuance of the order but not later
than the
next day that the
court is in session after its issuance, a
hearing to determine
whether the order should remain in effect,
be
modified, or be
revoked. The hearing shall be conducted under
the
standards set
forth in division (C) of this section.
(3) If a municipal court or a county
court issues a
protection order under this
section and
if, subsequent to the
issuance of the order, the alleged
offender who is the subject of
the order is bound over to the
court of common pleas for
prosecution of a felony arising out of
the same activities as
those that were the basis of the
complaint upon which the order is
based, notwithstanding the
fact that the order was issued by a
municipal court or county
court, the order shall remain in effect,
as though it were an order of the
court of common pleas, while the
charges
against the alleged offender are pending in the court of
common
pleas, for the period of time described in division
(E)(2)
of this section, and the court of common pleas has exclusive
jurisdiction to modify the order issued by the municipal court or
county
court. This
division applies when the alleged offender is
bound over to the
court of common pleas as a result of the person
waiving a
preliminary hearing on the felony charge, as a result of
the
municipal court or county court having determined at a
preliminary hearing that there is probable cause to believe that
the felony has been committed and that the alleged offender
committed it, as a result of the alleged offender having been
indicted for the felony, or in any other manner.
(E) A protection order that is issued as a
pretrial
condition
of release under this section:
(1) Is in addition to, but shall not be construed as a
part
of, any bail set under Criminal Rule 46;
(2) Is effective only until the disposition, by the court
that
issued the order or, in the circumstances described in
division
(D)(3) of this section, by the court of common pleas to
which the
alleged offender is bound over for prosecution, of the
criminal proceeding arising out of the complaint upon which the
order is
based or until the issuance under section 2903.214 of the
Revised Code of a protection
order arising out of the same
activities as those that were the basis of the
complaint filed
under this section;
(3) Shall not be construed as a finding that the alleged
offender committed the alleged offense and shall not be
introduced
as evidence of the commission of the offense at the
trial of the
alleged offender on the complaint upon which the
order is based.
(F) A person who meets the criteria for bail under
Criminal
Rule 46 and who, if required to do so pursuant to that
rule,
executes or posts bond or deposits cash or securities as
bail,
shall not be held in custody pending a hearing before the
court on
a motion requesting a protection order
under this section.
(G)(1) A copy of a protection order that
is issued under
this
section shall be issued by the court to the
complainant, to
the
alleged victim, to the person who requested the
order, to the
defendant, and to all law enforcement
agencies that have
jurisdiction to enforce the order. The court
shall direct that a
copy of the order be delivered to the
defendant on the same day
that the order is entered. If a municipal court
or a county court
issues a
protection order under this section and if, subsequent to
the
issuance of the order, the defendant who is the subject of the
order is bound over to the court of common pleas for prosecution
as described in division (D)(3)
of this section, the municipal
court or county court shall
direct that a copy of the order be
delivered to the court of
common pleas to which the defendant is
bound over.
(2) Upon the issuance of a protection order under this
section, the court shall provide the parties to the order with the
following notice orally or by form:
"NOTICE
If you are convicted of a misdemeanor crime involving
violence in which you are or were a spouse, intimate partner,
parent, or guardian of the victim or are or were involved in
another, similar relationship with the victim, it may be unlawful
for you to possess or purchase a firearm, including a rifle,
pistol, or revolver, or ammunition pursuant to federal law under
18 U.S.C. 922(g)(9). If you have any questions whether this law
makes it illegal for you to possess or purchase a firearm or
ammunition, you should consult an attorney."
(3) All law enforcement agencies shall establish and
maintain
an index for the protection orders
delivered to the
agencies
pursuant to division (G)(1) of this
section. With
respect to each
order delivered, each agency shall
note on the
index the date and
time of the agency's receipt of
the order.
(4) Regardless of whether the petitioner has registered
the
protection order in the county in which the officer's agency
has
jurisdiction,
any officer of a law enforcement agency shall
enforce
a protection order issued pursuant to this
section in
accordance with the
provisions of the order.
(H) Upon a violation of a protection order
issued pursuant
to
this section,
the court may issue another protection order
under
this section, as a
pretrial condition of release, that
modifies
the terms of the
order that was violated.
(I) Notwithstanding any provision of law to the contrary
and
regardless of whether a protection order is issued or a consent
agreement is approved by a court of
another county or by a court
of another state,
no
court
or unit of state or local government
shall
charge
any fee, cost, deposit, or money in connection
with
the filing of a motion
pursuant
to
this section, in
connection
with the filing, issuance,
registration, or service of
a
protection order or consent agreement, or for obtaining
certified
copies of a protection order or consent agreement.
(J) As used in this section, "sexually oriented offense" has
the same meaning as in section 2950.01 of the Revised Code.
Sec. 2919.26. (A)(1) Upon the filing of a complaint that
alleges a violation of section 2909.06, 2909.07, 2911.12, or
2911.211 of the Revised Code if the alleged victim of the
violation was a family
or household member at the time of the
violation, a violation of a
municipal ordinance that is
substantially
similar to any of those sections if the alleged
victim of the violation was a
family or household member
at the
time of the violation, any offense of violence if the alleged
victim of the offense was a family or household member at the time
of the commission of the offense, or any sexually oriented offense
if the alleged victim of the offense was a family or household
member at the time of the commission of the offense, the
complainant, the alleged victim,
or a family or household member
of
an alleged victim
may file, or,
if in an emergency the alleged
victim
is unable to
file, a person
who made an arrest for the
alleged violation or offense under
section 2935.03
of the Revised
Code may file on behalf of the
alleged victim, a
motion that
requests the issuance
of a temporary
protection order
as a
pretrial condition of release of the
alleged offender, in
addition
to any bail set under Criminal Rule
46. The motion shall
be filed
with the clerk of the court that
has jurisdiction of the
case at
any time after the filing of the
complaint.
(2) For purposes of section 2930.09 of the Revised Code, all
stages of a
proceeding arising out of a complaint alleging the
commission of a violation, offense of violence, or sexually
oriented offense described in
division (A)(1) of this
section,
including all proceedings on a
motion for a temporary protection
order, are critical stages of
the case, and a victim
may be
accompanied
by a victim advocate or
another person to provide
support to the victim as
provided in
that section.
(B) The motion shall be prepared on a form that is
provided
by the clerk of the court, which form shall be
substantially as
follows:
"MOTION FOR TEMPORARY PROTECTION ORDER
.......................... Court
Name and address of court
..........................................
(name of person),
moves the court to issue a temporary protection
order containing
terms designed to ensure the safety and
protection of the
complainant, alleged victim, and other family or
household members, in relation to
the named defendant, pursuant to
its authority to issue such an
order under section 2919.26 of the
Revised Code.
A complaint, a copy of which has been attached to this
motion, has been filed in this court charging the named defendant
with .......................... (name of the specified violation,
the offense of violence, or sexually oriented offense charged) in
circumstances in which the victim was a family
or household member
in violation of (section
of the Revised Code designating the
specified violation, offense of violence, or sexually oriented
offense charged), or charging the named defendant with
a
violation
of a municipal ordinance that is substantially similar
to
........................ (section
of the Revised Code designating
the specified violation, offense of violence, or sexually oriented
offense charged) involving a family or
household member.
I understand that I must appear before the court, at a time
set by the court within twenty-four hours after the filing of
this
motion, for a hearing on the motion or that, if I am unable to
appear
because of hospitalization or a medical condition resulting
from the offense
alleged in the complaint, a person who can
provide information about my need
for a temporary protection order
must appear before the court in lieu of my
appearing in court. I
understand that any temporary
protection order granted pursuant to
this motion is a pretrial
condition of release and is effective
only until the disposition
of the criminal proceeding arising out
of the attached complaint,
or the issuance of a civil protection
order or the approval of a
consent agreement, arising out of the
same activities as those
that were the basis of the complaint,
under section 3113.31 of
the Revised Code.
..........................................
(or signature of the arresting officer who filed the motion on
behalf of the alleged victim)
..........................................
Address of person (or office address of the
arresting
officer who
filed the motion on behalf of the alleged
victim)"
(C)(1) As soon as possible after the filing of a motion that
requests the issuance of a temporary protection order, but not
later than twenty-four hours after the filing of the motion, the
court shall conduct a hearing to determine whether to issue the
order. The person who requested the order shall appear before
the
court and provide the court with the information that it
requests
concerning the basis of the motion. If the person who requested
the
order is unable to appear and if the court finds that the
failure to appear is
because of the person's hospitalization or
medical condition resulting from
the offense alleged in the
complaint, another person who is able to provide
the court with
the information it requests may appear in lieu of the person
who
requested the order. If the court finds that the safety and
protection of
the complainant, alleged victim, or any other family
or household member of the alleged victim may be impaired by
the
continued presence of the alleged offender, the court may
issue a
temporary protection order, as a pretrial condition of
release,
that contains terms designed to ensure the safety and
protection
of the complainant, alleged victim, or the
family or household
member,
including a requirement that the alleged offender refrain
from
entering the residence, school, business, or place of
employment
of the complainant, alleged victim, or the family or
household member and a requirement that the alleged offender be
monitored by
means of a global positioning system device. If the
court requires
that the alleged offender be monitored by a global
positioning
system device, the alleged offender shall pay the
cost of the
monitoring.
(2)(a) If the court issues a temporary protection order that
includes a
requirement that the alleged offender refrain from
entering the residence,
school, business, or place of employment
of the complainant, the
alleged victim, or the family or
household
member, the order shall state clearly that the order cannot be
waived or nullified by an invitation to the alleged offender from
the
complainant, alleged victim, or family or household
member to
enter the residence, school,
business, or place of employment or
by the alleged offender's entry into one
of those places otherwise
upon the consent of the complainant,
alleged victim, or family or
household member.
(b) Division (C)(2)(a) of this section does not limit any
discretion of a
court to determine that an alleged offender
charged with a violation of
section 2919.27 of the Revised Code,
with a violation of a municipal ordinance
substantially equivalent
to that section, or with contempt of court, which
charge is based
on an alleged violation of a temporary protection order issued
under this section, did not commit the violation or was not in
contempt of
court.
(D)(1) Upon the filing of a complaint that alleges
a
violation
of section 2909.06, 2909.07, 2911.12, or
2911.211 of
the
Revised Code if the alleged victim of the violation was a
family
or household
member at the time of the violation, a violation of a
municipal ordinance
that is substantially similar
to any of those
sections if the alleged victim of the violation was a family or
household member at
the time
of the violation, any offense of
violence if the alleged victim of the offense was a family or
household member at the time of the commission of the offense, or
any sexually oriented offense if the alleged victim of the offense
was a family or household member at the time of the commission of
the offense, the court, upon its own
motion, may issue a
temporary
protection order as a pretrial
condition of release if
it finds
that the safety and protection
of the complainant,
alleged victim,
or other family or
household member of the
alleged
offender may be
impaired by the continued presence of the
alleged
offender.
(2) If the court issues a temporary protection order under
this section as an ex parte order, it shall conduct, as soon as
possible after the issuance of the order, a hearing in the
presence of the
alleged offender not later than the next day on
which the court is scheduled
to conduct business after the day on
which the alleged offender was arrested
or at the time of the
appearance of the alleged offender pursuant to summons
to
determine whether the order should remain in effect, be modified,
or be
revoked. The hearing shall be conducted under the standards
set
forth in division (C) of this section.
(3) An order issued under this section shall contain
only
those terms authorized in orders issued under division (C) of
this
section.
(4) If a municipal court or a county
court issues a
temporary
protection order under this section and
if, subsequent
to the
issuance of the order, the alleged
offender who is the
subject of
the order is bound over to the
court of common pleas
for
prosecution of a felony arising out of
the same activities as
those that were the basis of the
complaint upon which the order is
based, notwithstanding the
fact that the order was issued by a
municipal court or county
court, the order shall remain in effect,
as though it were an order of the
court of common pleas, while the
charges
against the alleged offender are pending in the court of
common
pleas, for the period of time described in division
(E)(2)
of this section, and the court of common pleas has exclusive
jurisdiction to modify the order issued by the municipal court or
county
court.
This
division applies when the alleged offender is
bound over to the
court of common pleas as a result of the person
waiving a
preliminary hearing on the felony charge, as a result of
the
municipal court or county court having determined at a
preliminary hearing that there is probable cause to believe that
the felony has been committed and that the alleged offender
committed it, as a result of the alleged offender having been
indicted for the felony, or in any other manner.
(E) A temporary protection order that is issued as a
pretrial
condition of release under this section:
(1) Is in addition to, but shall not be construed as a
part
of, any bail set under Criminal Rule 46;
(2) Is effective only until the occurrence of either of the
following:
(a) The disposition, by the court that issued the
order or,
in the circumstances described in division
(D)(4) of this section,
by the
court of common pleas to which the alleged offender is
bound
over for prosecution, of the
criminal proceeding arising out
of the complaint upon which the
order is based;
(b) The issuance of a protection order or the approval of a
consent agreement, arising out of the same activities as those
that were the basis of the complaint upon which the order is
based,
under section 3113.31 of
the Revised Code;
(3) Shall not be construed as a finding that the alleged
offender committed the alleged offense, and shall not be
introduced as evidence of the commission of the offense at the
trial of the alleged offender on the complaint upon which the
order is based.
(F) A person who meets the criteria for bail under
Criminal
Rule 46 and who, if required to do so pursuant to that
rule,
executes or posts bond or deposits cash or securities as
bail,
shall not be held in custody pending a hearing before the
court on
a motion requesting a temporary protection order.
(G)(1) A copy of any temporary protection order that is
issued under this section shall be issued by the court to the
complainant, to the alleged victim, to the person who requested
the
order, to the defendant, and to all law enforcement
agencies
that have jurisdiction to enforce the order. The court
shall
direct that a copy of the order be delivered to the
defendant on
the same day that the order is entered. If a municipal court
or a
county court issues a temporary
protection order under this
section and if, subsequent to the
issuance of the order, the
defendant who is the subject of the
order is bound over to the
court of common pleas for prosecution
as described in division
(D)(4)
of this section, the municipal court or county court shall
direct that a copy of the order be delivered to the court of
common pleas to which the defendant is bound over.
(2) Upon the issuance of a protection order under this
section, the court shall provide the parties to the order with the
following notice orally or by form:
"NOTICE
If you are convicted of a misdemeanor crime involving
violence in which you are or were a spouse, intimate partner,
parent, or guardian of the victim or are or were involved in
another, similar relationship with the victim, it may be unlawful
for you to possess or purchase a firearm, including a rifle,
pistol, or revolver, or ammunition pursuant to federal law under
18 U.S.C. 922(g)(9). If you have any questions whether this law
makes it illegal for you to possess or purchase a firearm or
ammunition, you should consult an attorney."
(3) All law enforcement agencies shall establish and
maintain
an index for the temporary protection orders delivered
to
the
agencies pursuant to division (G)(1) of this section.
With
respect to each order delivered, each agency shall note on
the
index, the date and time of the receipt of the order by the
agency.
(4) A complainant, alleged victim, or other person who
obtains
a temporary protection
order under this section may
provide notice of the issuance of
the temporary protection order
to the judicial and law
enforcement officials in any county other
than the county in
which the order is issued by registering that
order in the other
county in accordance with division (N) of
section 3113.31
of the Revised Code and filing a copy of the
registered protection order with a law enforcement agency in the
other county in accordance with that division.
(5) Any officer of a law enforcement agency shall enforce
a
temporary protection order issued by any court in this state in
accordance
with the provisions of
the order, including removing
the defendant from the premises, regardless of
whether the order
is registered in the county in which the officer's agency
has
jurisdiction as authorized by division (G)(4) of this section.
(H) Upon a violation of a temporary protection order, the
court may issue another temporary protection order, as a pretrial
condition of release, that modifies the terms of the order that
was violated.
(I)(1) As used in divisions (I)(1) and
(2) of this section,
"defendant" means a person who is
alleged in a complaint to have
committed a violation, offense of violence, or sexually oriented
offense of the type described in division (A) of
this section.
(2) If a complaint is filed that alleges that a person
committed a violation, offense of violence, or sexually oriented
offense of the type described in division
(A) of
this section, the
court may not issue a temporary
protection order
under this
section that requires the complainant,
the alleged
victim,
or
another family or household member of the defendant to
do or
refrain from doing an act that the court may require the
defendant
to do or refrain from doing under a temporary
protection
order
unless both of the following apply:
(a) The defendant has filed a separate
complaint that
alleges
that the complainant, alleged
victim, or other family or
household
member in question who would be required under the
order
to do or
refrain from doing the act committed a violation or offense of
violence
of the
type described in division (A) of this section.
(b) The court determines that both the
complainant, alleged
victim, or other family or household
member
in question who
would
be required under the order to do or refrain from doing the
act
and the defendant acted primarily as aggressors, that neither
the
complainant, alleged victim, or other family or
household member
in question
who would be required under the order to do or refrain
from doing
the act nor the defendant acted primarily in
self-defense, and,
in accordance with the standards and criteria
of this section as
applied in relation to the separate complaint
filed by the
defendant, that it should issue the order to require
the
complainant, alleged victim, or other family or household
member in question to do
or refrain from doing the act.
(J) Notwithstanding any provision of law to the
contrary
and
regardless of whether a protection order is issued or a consent
agreement is approved by a court of
another county or a court of
another state, no
court
or unit of state or local government shall
charge
any fee, cost, deposit, or money in connection with
the
filing of a motion
pursuant to
this section, in connection
with
the filing, issuance,
registration, or service of a
protection
order or consent agreement, or for obtaining a
certified copy of a
protection order or consent agreement.
(K) As used in this section:
(1) "Sexually oriented offense" has the same meaning as in
section 2950.01 of the Revised Code.
(2) "Victim
advocate" means a
person who provides support and
assistance
for a victim of an
offense during court proceedings.
Section 2. That existing sections 2903.213 and 2919.26 of the
Revised Code are hereby repealed.
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