BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator John Vasconcellos, Chair A
1999-2000 Regular Session B
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AB 2003 (Shelley) 3
As Introduced February 18, 2000
Hearing date: June 6, 2000
Penal Code
AA:mc
DOMESTIC VIOLENCE LAWS:
WARRANTLESS ARRESTS;
EXPANSION TO INCLUDE DATING RELATIONSHIPS
HISTORY
Source: California Alliance Against Domestic Violence
Prior Legislation: SB 1470 (Thompson) - Ch. 182, Stats. 1998; AB
1767 (Havice) - Ch. 699, Stats. 1998; AB 45
(Murray) - Ch. 847, Stats. 1997 [amended to
unrelated issue]; AB 2116 (Alby) - Ch. 131, Stats.
1996; AB 2231 (Kuehl) - Ch. 1140, Stats. 1996; AB
1850 (Nolan) - Ch. 995, Stats. 1993; AB 238
(Roybal-Allard) - Chap. 191, Stats. 1989
Support: YWCA of San Diego County; Family Violence Law Center
(Berkeley); City and County of San Francisco Adult
Probation Department; San Francisco Commission on the
Status of Women; Women Escaping a Violent Environment
(Sacramento); Sexual Assault & Domestic Violence Center
(Woodland); California Peace Officers' Association;
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California Police Chiefs Association; Los Angeles
County District Attorney's Office; Men Overcoming
Violence (San Francisco); Nihonmachi Legal Outreach
(San Francisco); Junior Leagues of California State
Public Affairs Committee; National Organization for
Women
Opposition:California Attorneys for Criminal Justice
Assembly Floor Vote: Ayes 76 - Noes 0
KEY ISSUE
SHOULD THE WARRANTLESS ARREST EXCEPTION FOR MISDEMEANOR DOMESTIC
VIOLENCE BE EXPANDED TO INCLUDE A DATING RELATIONSHIP, AS SPECIFIED?
PURPOSE
The purpose of this bill is to add dating relationships to the
list of specified personal relationships where a peace officer
is authorized to make an arrest without a warrant when the
officer has probable cause to believe a misdemeanor assault or
battery has been committed by a suspect against the other person
in that current or former relationship.
Under current law , peace officers are authorized to make arrests
without a warrant under the following circumstances:
1.when the officer has probable cause to believe that the
person to be arrested has committed a public offense in the
officer's presence.
2.when the person arrested has committed a felony, although
not in the officer's presence.
3.when the officer has probable cause to believe that the
person to be arrested has committed a felony, whether or
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AB 2003 (Shelley)
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not a felony, in fact, has been committed. (Penal Code
836(a))
In addition, current law permits warrantless arrests for
misdemeanors, whether or not committed in an officer's presence,
in certain situations, including the following involving
domestic violence:
If the officer is responding to a call alleging a violation of
a domestic violence protective or restraining order , as
specified, whether or not the violation has occurred in the
presence of the officer, and the officer has probable cause to
believe that the person against whom the order is issued has
notice of the order and has committed an act in violation of
the order. (Penal Code 836(c)(1))
If a person commits an assault or battery upon his or her
current or former spouse, fianc?, fianc?e, a current or former
cohabitant, as defined, a person with whom the suspect
currently is having, or has previously had, an engagement
relationship, or upon the parent of his or her child, as
defined, a peace officer may arrest the person without a
warrant where both of the following circumstances apply:
(1) The peace officer has reasonable cause to believe
that the person to be arrested has committed the assault
or battery, whether or not it has in fact been committed.
(2) The peace officer makes the arrest as soon as
probable cause arises to believe that the person to be
arrested has committed the assault or battery, whether or
not it has in fact been committed. (Penal Code 836(d))
This bill would expand this provision to include a current or
former dating relationship.
COMMENTS
1. Stated Need for This Bill
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This measure is very important to myself, the
people of my district, and statewide domestic
violence organizations. One out of three teen
relationships are violent. Domestic violence
often occurs in dating relationships where the
parties do not live together, or have a child
together. When a person in this type of
relationship is greatly injured, the police do not
have the power to arrest the abuser, without a
warrant, because the relationship requirement is
not met. This change in the law will help victims
escape further injury, and, in cases where the
perpetrator is young, help teen perpetrators learn
that domestic violence is a serious crime and
benefit from the early intervention to stop the
cycle of violence.
2. Relationships Included in Current Law
Prior to 1998, the warrantless arrest statute applicable to
domestic violence was limited to a spouse, a person with whom
the perpetrator was cohabiting, or the parent of the
perpetrator's child. In 1998, the Legislature expanded this
category to include all of the following categories of
relationships: a current or former spouse, fianc?e, fianc?, a
current or former cohabitant as defined in Section 6209 of the
Family Code, a person with whom the suspect currently is having
or has previously had an engagement relationship, a person with
whom the suspect has parented a child, or is presumed to have
parented a child pursuant to the Uniform Parentage Act, a child
of the suspect, a child whose parentage by the suspect is the
subject of an action under the Uniform Parentage Act, a child of
a person in one of the above categories, or any other person
related to the suspect by consanguinity or affinity within the
second degree. (Penal Code 836(d), as amended by SB 1470
(Thompson) and AB 1767 (Havice) - Stats. of 1998.
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3. Prior Legislation to Include Dating Relationships
This Committee considered the change proposed by this bill
during the 1997-98 session. Both AB 1767 (Havice) and SB 1470
(Thompson) proposed including dating relationships in the
warrantless arrest statute. Dating relationships were amended
out of both of these bills when they were heard in this
Committee. As discussed above, these bills added many of the
relationships contained in the statute now reflected in current
law.
4. Background: Warrantless Arrests for Misdemeanors; Exceptions
to the General Rule
"The right to arrest for a misdemeanor is generally declared to
be dependent upon actual commission of the offense in the
presence of the officer." (Witkin, California Criminal Law
(Vol. 4, sec. 1928, 2nd Ed. 1989)) The general rule is that a
peace officer needs a warrant to arrest a person for a
misdemeanor that was not committed in the officer's presence.
There have been limited exceptions to this rule which allow the
peace officer to arrest a person for a misdemeanor which the
officer has reason to believe was committed even if it was not
done in the officer's presence. The majority of these
exceptions involve the possibility of physical harm to another
person. They include the arrest of someone for a misdemeanor
DUI (when the officer observes the person near a vehicle, with
other factors present); the arrest of someone carrying a loaded
firearm in a public place (Penal Code 12031 (2)); an assault
committed on school property during school hours when school
activities are taking place (section 243.5); arrest in a
domestic violence situation when the peace officer reasonably
believes a protective order has been filed (section 836 (c)(1));
and arrest of someone for assault or battery on a firefighter or
emergency medical technician, as specified. (Penal Code
836.1)
The only exception which does not recognize a physical danger to
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others is the arrest of a probationer or parolee believed to be
in violation of their probation or parole. This is based in
part on the fact that someone on probation or parole has fewer
rights than the ordinary individual.
Because arrest is an extraordinary intrusion upon the personal
rights of the individual, it is traditionally exercised without
warrant only when the activity observed or believed to have
occurred poses an extraordinary threat to public safety, i.e., a
felony. A lesser misdemeanor offense requires a warrant, an
initial due process provision requiring a showing of cause to a
magistrate.
5. What This Bill Would Do
As explained above, this bill would add current and former
dating relationships to the existing warrantless arrest statute
applicable in domestic violence circumstances.
SHOULD DATING RELATIONSHIPS BE INCLUDED IN THE WARRANTLESS
ARREST STATUTE APPLICABLE IN DOMESTIC VIOLENCE CIRCUMSTANCES?
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