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HomeMy WebLinkAboutOrdinance-1999-1148 CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER Horth Council Bill No. 41 Ordinance No. 11/18 Series of 1998 TITLE: AN ORDINANCE AMENDING AND RESTATING IN ITS ENTIRETY SECTION 16-110 OF THE WHEAT RIDGE CODE OF LAWS. WHEREAS, the Wheat Ridge Code of Laws contains provisions relating to the offense of domestic violence; and WHEREAS, the City Council wishes to amend the current section regarding domestic violence; BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. Section 16-110 of the Wheat Ridge Code of Laws is hereby repealed and reenacted in its entirety as follows: Sec. 16-110. Domestic Violence (a) Definitions. Unless the text clearly requires otherwise, the following words and phrases shall have the meanings indicated' (1) Domestic violence means an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship. Domestic violence also includes any other ordinance violation committed against a person or against property when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship. (2) Intimate relationship means a relationship between spouses, former spouses, past or present unmarried couples, or persons who are both parents of the same child regardless of whether the persons have been married or have lived together at any time. (3) Judicial day means any day in which the court convenes or is formally . . In session. (b) Violations, It shall be unlawful for any person to commit an act of domestic violence. KLE'.53027\289986 02 (c) Sentencing (1) A person who is found guilty at trial or who pleads guilty or no contest to a violation of this section, shall be guilty of a misdemeanor punishable pursuant to section 16-4 of this Code of Laws. (2) In addition to any sentence which is Imposed for a violation of this section, the defendant shall be ordered to complete a treatment program which is certified in accordance with C.R S. 918-6-602. If an intake evaluation conducted by a certified treatment program provider discloses that sentencing to a treatment program would be Inappropriate, the person shall be referred back. to the court for alternative disposition (3) In addition to any sentence which is imposed for a violation of this section, the court may order treatment for drug or alcohol abuse, counseling for mental health disorders, community service work programs, parenting classes, and/or restraining orders. (4) The probation department will provide monthly reports to the court detailing the information necessary to determine each defendant's compliance with the treatment program referred to in subsection (c)(2) above. The Court will provide a copy of that monthly report to the prosecuting attorney's office, and, upon request, other appropriate parties. Such reports are required for the purpose of providing updated information to victims of domestic violence crimes, monitoring the compliance of persons ordered into treatment, assessing the effectiveness of the counseling which is ordered and assessing the effectiveness of the various counseling programs used by the court (5) In a case in which the underlying facts include an act of domestic violence, the court shall not accept a plea of guilty or no contest to an ordinance violation which does not include the domestic violence designation, unless the prosecuting attorney makes a good faith representation on the record that such attorney would not be able to establish a prima facie case that the defendant and the alleged victim were currently or formerly involved in an intimate relationship if the defendant were brought to trial on the original domestic violence offense. In a case in which the underlying facts include an act of domestic violence, the court shall not accept a plea of guilty or no contest to an ordinance violation which does not include the domestic violence designation, unless there is a good faith representation by the KLE\53027\28998602 2 prosecuting attorney that such attorney would be unable to establish a prima facie case if the defendant were brought to trial on the original offense. (6) A person charged with a violation of this section is not eligible for deferred prosecution or for home detention in the home of the victim. (7) A person charged with a violation of this section is eligible for a deferred judgment and sentence only if such person has no prior conviction of domestic violence in this or any other jurisdiction. A person granted a deferred judgment and sentence pursuant to this section shall be ordered to complete a treatment program which is certified in accordance with C.R.S. S 18-6-602. (8) Before granting probation or a deferred judgment and sentence, the court shall consider the safety of the victim and the victim's children if probation or a deferred judgement and sentence is granted. (d) Evidence of similar transactions (1) Domestic violence is frequently cyclical in nature, involves patterns of abuse, and can consist of harm with escalating levels of seriousness. Evidence of similar transactions can be helpful and is necessary in some situations in prosecuting ordinance violations involving domestic violence. (2) I n prosecutions involving domestic violence in which the defendant and the victim named in the complaint have engaged in an intimate relationship as of the time alleged in the complaint, evidence of any other acts of domestic violence between the defendant and the victim constitutes other acts or transactions for the purposes of this section and the court may authorize the admission of evidence as provided in subsection (3) of this section. (3) The proponent of evidence of other acts or transactions under this section shall advise the trial court by offer of proof of such evidence and shall specify whether the evidence is offered to show a common plan, scheme, design, identity, modus operandi, motive, or guilty knowledge or for some other purpose. (4) Upon the offer of proof under subsection (3) of this section, the trial court shall determine whether the probative value of the evidence of similar acts or transactions is substantially outweighed by the danger of unfair prejudice to the defendant, confusion of the issues, or KLE\53027\28998602 3 misleading the jury if the evidence is allowed or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence (5) Upon admitting evidence of other acts or transactions into evidence pursuant to this section and again In the general charge to the jury, the trial court shall direct the jury as to the limited purpose for which the evidence is admitted and for which the jury may consider it. (e) Duties of the municipal court: Because of the serious nature of domestic violence, the court in domestic violence actions: (1) Shall not dismiss any charge or delay arraignment or disposition because of concurrent dissolution or other judicial proceedings. (2) Shall waive any requirement that the victim's location, residence and/or phone number(s} be disclosed to any other person unless such person shows the court by clear and convincing evidence that the possibility for further violence is slight and the victim's location, residence and/or phone number(s) is/are necessary for purposes of formulating an affirmative defense. (3) Shall issue a mandatory restraining order against the defendant pursuant to paragraph (f) of this section and such other pretrial orders which accommodate the defendant's ability to acquire necessary information and personal belongings without subjecting the victim to the possibility of further violence. (4) Shall arraign domestic violence cases on the next judicial day whenever possible, but in no case shall arraignment occur more than six days after the date of the arrest (5) Shall give domestic violence cases priority on the docket. (f) Mandatory restraining order against defendant: (1) There is hereby created a mandatory restraining order against any person charged with any violation of domestic violence pursuant to this section, which order shall remain in effect from the time that the person is advised of such order at such person's arraignment or first court appearance before the court until final disposition of the action or until further order of the court. The provisions of the restraining order may be continued by the court after sentencing if the court deems such action reasonable and necessary. Such order shall KLE\53027\289986 02 4 restrain the person charged from harassing, molesting, intimidating, retaliating against, or tampering with any witness to or victim of the act(s) charged. A copy of the restraining order issued pursuant to this section shall be provided to the protected party(ies) by the court. (2) Upon motion of the prosecuting attorney, or on the court's motion to protect the alleged victim, the court may enter any of the following further orders against the defendant: (a) An order to vacate or stay away from the home of the Victim and to stay away from any other location where the victim is likely to be found; (b) An order to refrain from contact or direct or indirect communication with the victim; (c) An order prohibiting possession or control of firearms or other weapons; (d) An order prohibiting possession or consumption of alcohol or controlled substances; and, (e) Any other order the court deems appropriate to protect the safety of the alleged victim (3) At the time of the defendant's arraignment or first court appearance before the court, the court shall inform the defendant of the restraining order effective pursuant to this section and shall inform the defendant that a violation of such order is punishable by contempt and may result in further criminal charges. The court shall state the terms of the restraining order issued pursuant to this section, including any additional provisions added pursuant to subsection (2) of this section, to the defendant on the record and the court shall further require the defendant to acknowledge the restraining order as a condition of any bond for the release of the defendant. The court shall notify the alleged victim of the order if such person is not present at the time the restraining order is issued. (4) The defendant, victim, or the prosecuting attorney may request a hearing before the court to modify the terms of a restraining order or to add terms to the restraining order issued pursuant to this section. Upon such a request, the court shall set a hearing and the court shall send notice of the hearing to the defendant and the victim. At the hearing, the court shall review the terms of the restraining order and KLE\53027\289986 02 5 any further orders entered and shall consider the modification(s) and/or proposed addition (s) requested by the defendant, victim, or prosecuting attorney. No modifications(s) or addition(s) shall be made if the victim is not present at the hearing and notified of the modlfications(s) or addition(s) on the record, unless such modification(s) or addition(s) is/are necessary to comply with a conflicting county or district court order. Notice of an amended restraining order shall be made to the defendant in open court on the record. The victim shall be provided with a copy of the amended restraining order. (5) Restraining orders and amended restraining orders issued against the defendant pursuant to this section shall be considered restraining orders in accordance with the provisions of C.R.S. S 14-4-1 02, as amended. (6) Any person failing to comply with any provision of a restraining order issued pursuant to this section commits the crime of violation of a restraining order and may be punished as provided in section 16-111 hereafter. (g) Ho/d pending arraignment. Whenever the court finds a substantial likelihood that a defendant, if released from custody, would commit an additional act of violence against the victim or another family or household member which would cause serious bodily injury or death to either the victim or another family or household member, the court may order that the defendant be held without bond pending arraignment or advisement of rights regarding the alleged offense. If the court orders a hold pending arraignment, however, the defendant shall be arraigned for the alleged offense on the next judicial day. For purposes of deciding the propriety of a hold pending arraignment, the court should consider, among other evidence, the following: (1) The nature and extent of the injuries sustained by the victim In the offense charged; (2) The defendant's history of domestic violence against the victim or another family or household member or of violence against any person, (3) Any records of any law enforcement agency regarding past contacts with the defendant, the victim, or another family or household member concerning domestic violence committed by the defendant; and KLE\53027\289986,02 6 (4) Whether the information presented to the court, taken as a whole, indicates a pattern of escalation, either in frequency or severity, in domestic violence acts by the defendant. (h) Appearance by the victim. Whenever a defendant receives a summons and complaint for a domestic violence violation, a police officer may serve the victim with a subpoena to appear at the same time and date scheduled for the defendant's arraignment. Such subpoena to appear shall be issued by the clerk of the municipal court and the officer who serves the subpoena shall complete the return of service and deliver it to the court. If the victim appears and the matter is not resolved by pretrial conference following the defendant's arraignment, the court may order the victim to appear at the date and time scheduled for the defendant's trial and the victim shall receive a copy of a notice to appear. The court shall exercise its contempt and equity powers to compel the appearance of victims which have been subpoenaed or otherwise ordered to appear. (I) Service of orders. An order, summons and complaint, subpoena or other document issued pursuant to this section shall be personally served upon the appropriate party by the police department, sheriff, or private process server. (1) Whenever necessary, a copy of the summons, subpoena or order shall be given to the appropriate law enforcement agency or private process server for service upon the appropriate party. If a sheriff or private process server requires fees for service or mileage, such fees shall be paid Upon a conviction, the court shall assess such servIce fees against the defendant. (2) If the police department, sheriff, or private process server cannot complete service within ten days or forty-eight hours before the date and time of appearance, the police department, sheriff, or private process server shall notify the clerk of the court. (3) Returns of service shall be made in accordance with the applicable rules of the court. Section 2. Safety Clause. The City Council hereby finds, determines, and declares that this Ordinance is promulgated under the general police power of the City of Wheat Ridge, that it is promulgated for the health, safety, and welfare of the public and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare The City Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be attained. KLE\5302?',289986 02 7 Section 3. Severability; ConflictinQ Ordinances Repealed. If any section, subsection or clause of this ordinance shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections, subsections and clauses shall not be affected thereby. All other ordinances or parts of ordinances in conflict with the provisions of this ordmance are hereby repealed. Section 4. Effective Date. This Ordinance shall take effect fifteen days after final publication, as provided by Section 5.11 of the Charter. INTRODUCED, READ, AND ADOPTED on first reading by a vote of 8 to o on this ~r~ day of November , 1998, ordered published in full in a newspaper of general circulation in the City of Wheat Ridge and Public Hearing and consideration on final passage set for January ~1, 1999 at 7.00 o'clock p.m., in the Council Chambers, 7500 West 29th Avenue, Wheat Ridge, Colorado. READ, ADOPTED AND ORDERED PUBLISHED on second and final rearling by a vote of 8 to 0 ,this 11th day of January , 1999. SIGNED by the Mayor on this 12th day of January , 1999. / , / < ( \. I ' \ \~E~'CH'~ I~ERVEN\r, ~A'YOR< ".\ ATTEST: JJ I. (, "y/"i / WANDA SANG, CITY dffiK AS TO FORM BY CITY G RALD E. DAHL, CITY ATTORNEY First Publication' December 4, 1998 Second Publication: January 15, 1999 Wheat Ridge Transcript Effective Date: January 30, 1999 KLE',53027\28998602 8