BILL ANALYSIS AB 688 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 688 (Eng) As Amended June 8, 2009 Majority vote ----------------------------------------------------------------- |ASSEMBLY: |78-0 |(May 11, 2009) |SENATE: |40-0 |(June 24, | | | | | | |2009) | ----------------------------------------------------------------- Original Committee Reference: PUB. S. SUMMARY : Prohibits an arresting officer from releasing a person on his or her own recognizance for crimes of domestic violence, as specified. The Senate amendments : 1)Restore previously deleted language allowing an arresting officer to release on his or her own recognizance a person accused of being in misdemeanor violation of a domestic violence restraining where certain facts exist. 2)Includes the following in the list of offenses specified in existing law for which an officer may not book and release an arrestee: a) Battery on a spouse or co-habitant; b) Assault on a person with whom the arrestee has a dating relationship; c) A violation of a domestic violence restraining order where the detained person made threats to kill or harm, has engaged in violence against, or has gone to the residence or workplace of the protected party; and, d) Stalking. 3)Makes various cross-references. EXISTING LAW : 1)States in any case in which a person is arrested for an offense declared to be a misdemeanor, including a violation of AB 688 Page 2 any city or county ordinance, and does not demand to be taken before a magistrate, that person shall, instead of being taken before a magistrate, be released according to the procedures, as specified. If the person is released, the officer or his or her superior shall prepare in duplicate a written notice to appear in court, containing the name and address of the person, the offense charged, and the time when, and place where, the person shall appear in court. If, pursuant to existing law, the person is not released prior to being booked and the officer in charge of the booking or his or her superior determines that the person should be released, the officer or his or her superior shall prepare a written notice to appear in a court. 2)Provides that in any case in which a person is arrested for a misdemeanor violation of a protective court order involving domestic violence, as defined in existing law, or arrested pursuant to a policy, as specified, the person shall be taken before a magistrate instead of being released according to the procedures set forth in this chapter, unless the arresting officer determines that there is not a reasonable likelihood that the offense will continue or resume or that the safety of persons or property would be imminently endangered by release of the person arrested. Prior to adopting these provisions, each city, county, or city and county shall develop a protocol to assist officers to determine when arrest and release is appropriate, rather than taking the arrested person before a magistrate. The county shall establish a committee to develop the protocol, consisting of, at a minimum, the police chief or county sheriff within the jurisdiction, the district attorney, county counsel, city attorney, representatives from domestic violence shelters, domestic violence councils, and other relevant community agencies. Nothing in this provision shall be construed to affect a defendant's ability to be released on bail or on his or her own recognizance. 3)Provides that before any person who is arrested for any of the following crimes may be released on bail in an amount that is either more or less than the amount contained in the schedule of bail for the offense, or may be released on his or her own recognizance, a hearing shall be held in open court before the magistrate or judge: a serious felony, as specified, or a violent felony, as specified, but not including a residential burglary; a violation of felony witness intimidation, spousal rape, domestic violence, felony criminal threats or stalking, AB 688 Page 3 as specified, battery on a person in a dating relationship; and, violation of a domestic violence restraining order if the detained person made threats to kill or harm, has engaged in violence against, or has gone to the residence or workplace of, the protected party. 4)Requires that law enforcement written policies encourage the arrest of domestic violence offenders if there is probable cause that an offense has been committed. These policies also shall require the arrest of an offender, absent exigent circumstances, if there is probable cause that a protective order issued, or by a court of any other state, a commonwealth, territory, or insular possession subject to the jurisdiction of the United States, a military tribunal, or a tribe has been violated. These policies shall discourage, when appropriate, but not prohibit, dual arrests. Peace officers shall make reasonable efforts to identify the dominant aggressor in any incident. The dominant aggressor is the person determined to be the most significant, rather than the first, aggressor. In identifying the dominant aggressor, an officer shall consider the intent of the law to protect victims of domestic violence from continuing abuse, the threats creating fear of physical injury, the history of domestic violence between the persons involved, and whether either person acted in self-defense. These arrest policies shall be developed, adopted, and implemented by July 1, 1996. Law enforcement agencies shall develop these policies with the input of local domestic violence agencies AS PASSED BY THE ASSEMBLY , this bill clarified that a peace officer may not release a person on his or her own recognizance, as specified, when arrested for a misdemeanor violation of a domestic violence protective order. FISCAL EFFECT : According to the Assembly Appropriations Committee, "Minor, potentially state-reimbursable local law enforcement and detention costs. This bill is a clarification of conflicting code sections, largely reflects current practice, and will not result in a large number of additional hearings or holds. To the extent this bill, however, results in additional law enforcement costs, these costs are potentially state-reimbursable as this bill does not create a new crime or change the penalty for a crime, thus making the mandate ineligible for a crimes and infractions disclaimer." AB 688 Page 4 COMMENTS : According to the author, "Current law requires a person charged with a misdemeanor for domestic violence to appear before a judge or commissioner in order to have the facts relevant to the arrest reviewed and determine whether the person is a threat to the alleged victim or to the public. However, there are discrepancies in state law that potentially allow for the release of a person charged without ever appearing before a judge or commissioner. Far too many adults and children continue to live in fear from their assailants. AB 688 will make sure that all persons charged are screened properly before they're put back on the street. No one should have to live their life while constantly looking over their shoulder." Please see the policy committee for a full discussion of this bill. Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916) 319-3744 FN: 0001486