21-3412a. Domestic battery.
21-3412a
21-3412a. Domestic battery.(a) Domestic battery is:
(1) Intentionally or recklessly causing bodily harm by a family or householdmember against a family or household member; or
(2) intentionally causing physical contact with a family or household memberby a family or household member when done in a rude, insulting or angry manner.
(b) (1) Upon a first conviction of a violation ofdomestic battery, a personshall be guilty of a class B person misdemeanorand sentenced to not less than 48 consecutive hours nor more than six months'imprisonment and fined not less than $200, nor more than $500 or in the court'sdiscretion the court may enter an order which requires the person enroll in andsuccessfully complete a domestic violence prevention program.
(2) If, within five years immediately preceding commission of the crime, aperson is convicted of a violation of domestic battery a second time, suchperson shall be guiltyof aclass A person misdemeanorand sentenced to not less than 90 days nor more than one year'simprisonment and fined not less than$500 nor more than $1,000. The five days'imprisonment mandated by this subsection may be served in a work releaseprogram only after such person has served 48 consecutive hours'imprisonment, provided such work release program requires such person toreturn to confinement at the end of each day in the work release program.The personconvicted must serve at least five consecutive days'imprisonment before the person is granted probation, suspension orreduction of sentence or parole or is otherwise released. As a conditionof any grant of probation, suspension of sentence or parole or of any otherrelease, the person shall be required to enter into and complete a treatmentprogram for domestic violence prevention.
(3) If, within five years immediately preceding commission of the crime, aperson is convicted of a violation of domestic battery a third or subsequenttime,such person shall be guilty of a person felonyand sentenced to not less than 90 days nor more than oneyear's imprisonment and fined not less than $1,000 nor more than$7,500.The person convicted shall not beeligible for release on probation, suspension or reduction of sentence orparole until the person has served at least 90 days' imprisonment. The courtshall require as a condition of parole that such personenter into andcomplete a treatment program for domestic violence.If the person does not enter into and complete a treatment program fordomestic violence, the person shall serve not less than 180 days nor more thanone year's imprisonment.The 90 days' imprisonment mandated by thissubsection may be served in a work release program only after such person hasserved 48 consecutive hours' imprisonment, provided such work release programrequires such person to return to confinement at the end of each day in thework release program.
(c) As used in this section:
(1) Family or household member means persons18 years of age or older whoare spouses, former spouses, parents or stepparents andchildren or stepchildren, and persons who are presently residingtogether or who have resided together in the past, and persons who have a childin common regardless of whether they have been married or who have livedtogether at any time. Family or household member also includes a man and womanif the woman is pregnant and the man is alleged to be the father, regardless ofwhether they have been married or have lived together at any time; and
(2) for the purpose of determining whether a conviction is a first,second, thirdor subsequent conviction in sentencing under this section:
(A) "Conviction" includes being convicted of a violation of this sectionor entering into a diversion or deferred judgment agreement in lieu offurther criminal proceedings on a complaint alleging a violation of thissection;
(B) "conviction" includes being convicted of a violation of a law ofanother state, or an ordinance of any city, or resolution of any county, whichprohibits the acts that this section prohibits or entering into a diversion ordeferred judgment agreement in lieu of further criminal proceedings in a casealleging a violation of such law, ordinance or resolution;
(C) only convictions occurring in the immediately preceding five yearsincluding prior to the effective date of this act shall be taken into account,but the court may consider other prior convictions in determining the sentenceto be imposed within the limits provided for a first, second, third orsubsequent offender, whichever is applicable; and
(D) it is irrelevant whether an offense occurred before or after convictionfor a previous offense.
(E) A person may enter into a diversion agreement in lieu of furthercriminal proceedings for a violation of this section or an ordinance of anycity or resolution of any county which prohibits the acts that this sectionprohibits only twice during any three-year period.
History: L. 2001, ch. 177, § 5;L. 2006, ch. 212, § 24;L. 2008, ch. 175, § 1; July 1.