DO= MESTIC VIOLENCE LAWS

<= /span>

AL= ABAMA STATUTES GOVERNING DOMESTIC VIOLENCE

§ 13A-6-132. Domestic violence -- Third degree.=

= “(a)= A person commits domestic violence in the third degree if the person commits = the crime of assault in the third degree pursuant to Section 13A-6- 22; the crime of menacing pursuant to Section 13A-6-23; the crime of reckless endangerment pursuant to Section 13A-6-24; the crime of criminal coercion pursuant to Section 13A-6-25; or the crime of harassment pursuant to subsection (a) of Section = 13A-11-8; and the victim is a current or former spouse, parent, child, any person with whom the defendant has a child in common, a present or former household mem= ber, or a person who has or had a dating or engagement relationship with the defendant. Domestic violence in the third degree is a Class A misdemeanor, except the defendant shall serve a minimum term of imprisonment of 48 hours= in a city or county jail or detention facility without consideration of reduction in time for any second or subsequent conviction under this subsection.

“(b)= The minimum term of imprisonment imposed under subsection (a) shall be double without consideration of reduction in time if a defendant willfully violate= s a protection order issued by a court of competent jurisdiction and in the pro= cess of violating the order commits domestic violence in the third degree.”= ;

(Act 2000-266, p. 411, &sec= t; 3.)

§ 13A-6-131. Domestic violence -- Second degree.

“(a) A person commits the crime of domestic violence in= the second degree if the person commits the crime of assault in the second degr= ee pursuant to Section 13A-6-21, and the victim is a current or former spouse, parent, child, any person with wh= om the defendant has a child in common, a present or former household member, = or a person who has or had a dating or engagement relationship with the defendan= t. Domestic violence in the second degree is a Class B felony, except the defendant shall serve a minimum term of imprisonment of six months without consideration of probation, parole, good time credits, or any reduction in = time for any second or subsequent conviction under this subsection.

“(b) The minimum term of imprisonment imposed under subsection (a) shall be double without consideration of probation, parole, = good time credits, or any reduction in time if a defendant willfully violates a protection order issued by a court of competent jurisdiction and in the pro= cess of violating the order commits domestic violence in the second degree.̶= 1;

(Act 2000-266, p. 411, &sec= t; 2.)

§ 13A-6-130. Domestic violence -- First degree.

“(a) A person commits the crime of domestic violence in= the first degree if the person commits the crime of assault in the first degree pursuant to Section 13A-6-20, and the victim is a current or former spouse, parent, child, any person with wh= om the defendant has a child in common, a present or former household member, = or a person who has or had a dating or engagement relationship with the defendan= t. Domestic violence in the first degree is a Class A felony, except that the defendant shall serve a minimum term of imprisonment of one year without consideratio= n of probation, parole, good time credits, or any other reduction in time for any second or subsequent conviction under this subsection.

“(b) The minimum term of imprisonment imposed under subsection (a) shall be double without consideration of probation, parole, = good time credits, or any reduction in time if a defendant willfully violates a protection order issued by a court of competent jurisdiction and in the pro= cess of violating the order commits domestic violence in the first degree.”= ;

(Act 2000-266, p. 411, &sec= t; 1.)

Court of Criminal Appeals of Alabama.

Scottie Lee BRAND
v.
STATE of Alabama<= /st1:place>.

CR-05-0275.

Sept. 29, 2006.

Cit= e: 2006 WL 2788991

Background: Defendant was convicted in = the Jefferson District Court, No. DC-05-9021, Robert G. Cahill, J., of third-degree domestic violence. Defendant appealed.

Holding: The Court of Criminal Ap= peals, Baschab, J., he= ld that evidence did not establish that victim and defendant were in dating relationship so as to convict defendant of third degree domestic violence.<= /span>

Reversed and remanded with instructions.

Evidence did not establish that the victim and defendant were in dating relationship= so as to convict defendant of third degree domestic violence; the relationship= was not romantic, there was only one act of sexual relations which occurred the= night they met two years before incident in question, victim specifically denied = that she and defendant had ever dated, there was little or no evidence that eith= er victim or defendant had ongoing expectations with respect to relationship, there was little or no evidence that either victim or defendant had affirmed relationship before others or that were in secret dating relationship, and there was no evidence that would support or detract from finding that there= was a dating relationship. Code 1975, § 13A-6-13= 2(a).

=

§ 13A-6-134. Arrest without warrant -- Determination of primary aggressor.

“(a) If a law enforcement officer receives complaints of domestic violence from two or more opposing persons, the officer shall eval= uate each complaint separately to determine who was the primary aggressor. If the officer determines that one person was the primary physical aggressor, the officer need not arrest the other person alleged to have committed domestic violence. In determining whether a person is the primary aggressor the offi= cer shall consider all of the following:

(1) Prior complaints of domestic violence.

(2) The relative severity of the injuries inflicted on each person.

(3) The likelihood of future injury to each person.

(4) Whether one of the persons acted in self-defense.<= o:p>

“(b) A law enforcement officer shall not threaten, sugg= est, or otherwise indicate the possible arrest of all parties to discourage the request for intervention by law enforcement by any party or base the decisi= on to arrest or not to arrest on either of the following:

(1) The specific consent or request of the victim.

(2) The officer's perception of the willingness of a victim of or witness to the domestic violence to testify or otherwise participate in a judicial proceeding.”

(Act 2000-266, p. 411, &sec= t; 5.)

§ 15-= 10-3= . Arrest without warrant -- Generally; definitions; written report.

“(a) An officer may arrest a person without a warrant, = on any day and at any time in any of the following instances:

(1= ) If a public offense has been committed or a breach of the peace threatened in the presence of the officer.

(2= ) When a felony has been committed, though not in the presence of the officer, by the person arrested.

(3= ) When a felony has been committed and the officer has reasonable cause to believe t= hat the person arrested committed the felony.

(4= ) When the officer has reasonable cause to believe that the person arrested has committed a felony, although it may afterwards appear that a felony had not= in fact been committed.

(5) When a charge has been made, upon reasonable cause, that the person arrested has committed a felony.

(6) When the officer has actual knowledge that a warra= nt for the person's arrest for the commission of a felony or misdemeanor has b= een issued, provided the warrant was issued in accordance with this chapter. However, upon request the officer shall show the warrant to the arrested pe= rson as soon as possible. If the officer does not have the warrant in his or her possession at the time of arrest the officer shall inform the defendant of = the offense charged and of the fact that a warrant has been issued.<= /span>

(7) When the officer has reasonable cause to believe t= hat a felony or misdemeanor has been committed by the person arrested in violat= ion of a protection order issued by a court of competent jurisdiction.

(8) When an offense involves domestic violence as defi= ned by this section, and the arrest is based on probable cause, regardless of whether the offense is a felony or misdemeanor.

“(b) For the purpose of this section, the following ter= ms have the following meanings:

(1= ) ABUSE. Any offense under = Sections 13A-6-60 to = 13A-6-70, inclusive, or under = Sections 26-15-1 to = 26-15-4, inclusive.

(2) ASSAULT. Any offense under = Sections 13A-6-20 to = 13A-6-25, inclusive.

(3) FAMILY, HOUSEHOLD, OR DATING OR ENGAGEMENT RELATIONSHIP MEMBERS. Includes a spouse, former spouse, parent, child, or a= ny other person related by marriage or common law marriage, a person with whom= the victim has a child in common, a present or former household member, or a pe= rson who has or had a dating or engagement relationship.

(4) DOMESTIC VIOLENCE. Any incident resulting in the abuse, assault, harassment, or the attempt or threats thereof, between fami= ly, household, or dating or engagement relationship members.<= /p>

(5) HARASSMENT. Any offense under = Section 13A-11-8.

“(c) When a law enforcement officer investigates an allegation of domestic violence, whether or not an arrest is made, the officer shall make a written report of the alleged inci= dent, including a statement of the complaint, and the disposition of the case.= 221;

(Code 1852, § 445; Code 1867, § 3994; Code 1= 876, § 4664; Code 1886, § 4262; Code 1896, § 5211; Code 1907, § 6269; Code 1923, § 3263; Code 1940, T. 15, &se= ct; 154; Acts 1989, No. 89-857, p. 1710, § 2; Acts 1995, No. 95-534, p. = 1081, § 1; Act 2000-266, p. 411, &sec= t; 8.)

§ 15-13-190. Procedures upon arrest; conditions of release or bail.

“(a) A person arrested for an offense involving domestic violence as defined in subdivisions (1) through (= 4) of subsection (b) of Section 15-10-3, strikes, shoves, kicks, or otherwise touches a person or subject him or her= to physical contact, or charged with a violation of a protection order, may no= t be admitted to bail until after an appearance before a judge or magistrate wit= hin 12 hours of the arrest, and if the person is not taken before a judge or magistrate within 12 hours, he or she shall be released on bail. Prior to t= he release of the person, the judge or magistrate shall review the facts of the arrest to determine whether the person is a threat to the alleged victim, i= s a threat to public safety, and is reasonably likely to appear in court.

“(b) The judge or magistrate shall make findings on the record concerning those determinations and may impose conditions of release or bail on the person to protect the alleged victim of domestic violence or the person protected by a protection order, and to ens= ure the appearance of the person at a subsequent court proceeding. The conditio= ns may include, but need not be limited to, enjoining the person from threaten= ing to commit or committing acts of domestic violence against the alleged victi= m; prohibiting the person from telephoning, contacting, or otherwise communica= ting with the alleged victim with the intent to harass, either directly or indirectly; ordering the person to stay away from the home of the alleged victim, when the person and alleged victim are not residents of the same ho= me, and ordering the person to stay away from any other location where the alle= ged victim is likely to be; prohibiting the person from possessing a firearm or other weapon specified by the court, except when such weapon is necessary f= or employment as a peace officer or military personnel; and issuing any other order or modification of orders above required to protect the safety of the alleged victim or to ensure the appearance of the person in court.

“(c) If conditions of release are impo= sed, the judge or magistrate shall issue a written order for conditional release, immediately distribute a copy of the order to the law enforcement agency ha= ving custody of the arrested or charged person, place information pertaining to = the order in the domestic violence protection order registry, and provide the l= aw enforcement agency with any available information concerning the location of the alleged victim in a manner that protects the safety of the victim.̶= 1;

(Act 2000-597, p. 1198, &se= ct; 1.)

THE PROTECTION FROM ABUSE ACT

§ 30-5-1. Short title; construction; purposes.=

(a) This chapter shall be known as and may be cited as the &qu= ot;Protection From Abuse Act = ."

(b) This chapter shall be liberally construed and applied to promote all of the following purposes:

(1) To assure victims of domestic violence the maximum protection from abuse th= at the law can provide.

(2) To create a flexible and speedy remedy to discourage violence and harassment against family members or others with whom the perpetrator has continuing contact.

(3) To expand the ability of law enforcement officers to assist victims, to enf= orce the law effectively in cases of domestic violence, and to prevent further incidents of abuse.

(4) To facilitate equal enforcement of criminal law by deterring and punishing violence against family members and others who are personally involved with= the offender.

(5) To recognize that battering is a crime that will not be excused or tolerate= d.

(6) To provide for protection orders to prevent domestic abuse and provide for court jurisdiction and venue; to pro= vide for court hearing for petitions for relief; to provide for the contents and= the issuance of protection orders; and to provide penalties for violations of protection orders.

§ 30-5-2. Definitions.

(a) In this chapter, the following words shall have the follow= ing meanings unless the context clearly indicates otherwise:

(1) ABUSE. The occurrence of one or more of the following acts, attempts, or threats between family or household members, as defined by this chapter:

a. Assault. Assault as defined under = Sections 13A-6-20 to = 13A-6-22, inclusive.

b. Attempt. With the intent to commit any crime under = this section or any other criminal act under the laws of this state, performing = any overt act towards the commission of the offense.

c. Child abuse. Abusing minor children as defined under Chapter 15 (commencing with = Section 26-15-1) of Title 26, known as "The Alabama Child Abuse Act."

d. Criminal coercion. Criminal coercion as defined und= er = Section 13A-6-25.

e. Harassment. Harassment as defined under = Section 13A-11-8.

f. Kidnapping. Kidnapping as defined under = Sections 13A-6-43 and = 13A-6- 44.

g. Menacing. Menacing as defined under = Section 13A-6-23.

h. Other conduct. Any other conduct directed toward a member of the protected class covered by this chapter that could be punishe= d as a criminal act under the laws of this state.

i. Reckless endangerment. Reckless endangerment as def= ined under = Section 13A-6-24.

j. Sexual abuse. Any sex offenses included in Article 4 (commencing with = Section 13A-6-60) of Chapter 6 of Title 13A.

k. Stalking. Stalking as defined under = Sections 13A-6-90 to = 13A-6-94, inclusive.

l. Theft. Knowingly obtaining or exerting unauthorized control or obtaining control by deception over property owned by or jointly owned by t= he plaintiff and another.

m. Trespass. Entering or remaining in the dwelling or = on the premises of another after having been warned not to do so either orally= or in writing by the owner of the premises or other authorized person.

n. Unlawful imprisonment. Unlawful imprisonment as def= ined under = Sections = 13A-6-41 and = 13A-6-42.

(2= ) ADULT. Any person 19 years of age or older, or who otherwise is emancipated.<= /o:p>

(3= ) COURT. The circuit court, or when the circuit court judge is unavailable, the dist= rict court.

(4= ) FAMILY OR HOUSEHOLD MEMBERS. A spouse, former spouse, parent, child, or any other person related within the 6th degree consanguinity or affinity or common-law marriage, a person with whom the plaintiff has a child in common, or a pres= ent or former household member.

(5) PLAINTIFF. For the purposes of this chapter, the term plaintiff is inclusiv= e of the categories of eligible plaintiffs listed below:

a. Any eligible adult who has sought relief under this chapter for himself or herself.

b. Any adult relative, household member, guardian, or custodian who seeks relief on behalf of any of the following persons by fil= ing a petition with any court having jurisdiction alleging abuse by the defenda= nt:

1. A minor or minor child.

2. Any person prevented by physical or mental incapaci= ty from seeking a protection order.

(6) PROTECTION ORDER. Any order of protection issued under this chapter for the purpose of preventing acts of abuse as defined in this chapter. The term re= fers to both ex parte and final orders issued by the court, whether obtained by filing an independent action or as a pendente lite order in another proceed= ing.

(b) Terms not otherwise defined by this chapter shall have the meaning given to them in Title 13A, (commencing with Section 13A-1-1= ), known as the Alabama Criminal Code or other provisions of law, as the case may be= .

(Acts 1981, No. 81-476, p. 826, § 2; Acts 1995, No. 95-542, p. = 1126, § 1.)

HISTORY

Amendment notes:

The 1995 amendment, effective October 29, 1995, rewrote subsection (a); and in subsection (b), substituted "in" for "by the Ala= bama Criminal Code" and inserted "(commencing with Section 13A-1-1= ), known as the Alabama Criminal Code."

CROSS REFERENCES

As= to the crimes of domestic violence in the first, second, and third degrees, see Article 7 of Chapter 6 of Title 13A.

<= span style=3D'font-size:9.5pt;font-family:Verdana'>
CASENOTES<= /p>

Fa= mily or household members

Court of Civil Ap= peals of Alabama.

John Wesley BOYD
v.
Kristin L. OTTMAN.

2050250.

Dec. 29, 2006.

Background: Former girlfriend filed a petition= for protection from abuse against former boyfriend. The Circuit Court, Madison County, DR-05-3524, entered protection from abuse order against former boyfriend. Former boyfriend appealed.

Holding: The Court of Civil Appea= ls, Murdock, J., he= ld that as a matter of first impression, former boyfriend qualified as a “household member,” for the purpose= of former girlfriend's petition for protection from abuse.

Affirmed.
=
Former boyfriend qualified as a “household member,” for the purpose of former girlfriend's petition for protection from abuse, = even though former boyfriend owned his own house and argued he was never a membe= r of the same household as former girlfriend; former girlfriend testified that former boyfriend stayed overnight at her house for weeks at a time, includi= ng one two and one-half month period, and the purpose of the Protection From A= buse Act was to discourage violence and harassment against family members or oth= er with whom the perpetrator had continuing contact, such as former boyfriend.= Code 1975, §§ 30-5-1(b)(2), 30-5-2(a)(4, 6)= .

1. Abuse

Evidence was insufficient to support finding that brother committed an act of abuse towards mother which warranted continuation of protection-from-abuse order; brother yelled at and threatened sister, not mother, and there was no evide= nce that brother committed the crimes of menacing, reckless endangerment, or criminal coercion towards mother. Horton v. DeVan, 829 So.2d= 756 (Ala.Civ.App.2002). Breach Of The Peace 17

2. Family or household members

Wife's former boyfriend was not a family or household member of wife or husband, a= nd thus Protection from Abuse Act did not apply to boyfriend who allegedly committed threatening conduct toward couple; Act applied to abuse between family or household members, and although boyfriend dated wife before she married husband, boyfriend and wife were never married, they were not relat= ed, and boyfriend never resided in either husband's or wife's household. Haraway v. Phillips, 2002 = WL 1728619 (Ala.Civ.App.2002). Breach Of The Peace 18

Ala. Co= de 1975 § 30-5-2, AL ST<= /st1:address> § 30-5-2

§ 30-5-3. Jurisdiction; how order may be obtained; venue; when final order not issued; residency.

(a) The courts, as provided in this chapter, shall have jurisdiction over all proceedings under this chapter.

(b) A protection order may be sought in any of the following manners:

(1= ) As an independent civil action, or joined with any other civil action.

(2= ) As part of the preliminary, final, or post judgment relief in any civil action= .

(3= ) As part of a criminal action at the request of the prosecuting attorney or at = the request of the victim as a condition of any the following:

a. Pretrial release.

b. As part of sentencing or alternative sentencing.

c. As part of conditions of probation.

(c) A petition for a protection order may be filed in any county as follows:

(1) Where the plaintiff resides.

(2) Where the plaintiff is temporarily located if he or she has left his or her residence to avoid further abuse, provided that no pending civil litigation involving the parties or criminal charges arising = from the alleged abuse are before a court in the jurisdiction where the plaintiff resides. If pending civil litigation involving the parties or criminal char= ges arising from the alleged abuse are before a court in the jurisdiction where= the plaintiff resides, then an order for protection must be sought where the plaintiff resides.

(d) Notwithstanding any provision to the contra= ry, a court in this state shall not issue a final order under this chapter if at the time of the filing of the petition: (1) a proceeding concerning the sub= ject matter of the petition is pending in another court in this state; or (2) another court in this state has retained jurisdiction over the parties concerning the subject matter of the petition.

(e) A minimum period of residency is not requir= ed to petition the court for an order of protection.

(Acts 1981, No. 81-476, p. 826, § 3; Acts 1995, No. 95-542, p. = 1126, § 1.)

HISTORY

Amendment notes:

The 1995 amendment, effective October 29, 1995, inserted "in = this chapter" in subsection (a); added subsections (b) through (e); and made nonsubstantive changes.

CROSS REFERENCES

As= to bail for persons arrested for certain domestic violence offenses or violation of protection order, see = § 15-13-190.

CASENOTES

1. Jurisdiction

Court of Civil Appeals has appellate jurisdiction to address whether the trial co= urt properly entered a protection-from-abuse order. Batey v. Dare, 742 So.2d 1= 94 (Ala.Civ.App.1999), transferred to 755 So.2d 593. = Breach Of The Peace 21

§ 30-5-4. Remedies and relief; duty to inform court of pending proceedings, litigation, etc.; previous court orders; issuance of orders.

(a) The plaintiff's right to relief under this chapter shall not be affected by= his or her leaving the residence or household to avoid further abuse.

(b) At any hearing in a proceeding to obtain an order for protection, each party has a continuing duty to inform the court of each pending proceeding for an order for protection, any pending civil litigation, each pending proceeding= in family or juvenile court, each pending criminal case involving the parties,= and any existing child custody or support order, including the case name, the f= ile number, and the county and state of the proceeding, if that information is known to the party.

(c) The remedies and procedures provided in this chapter are in addition to and= not in lieu of any other available civil or criminal remedies. Plaintiffs shall= not be barred from relief under this chapter because of other pending proceedin= gs or existing judgments.

(d) The court shall not delay granting relief because of the existence of a pen= ding action between the parties.

(e) Relief shall be available under this chapter without regard to whether the plaintiff has initiated divorce proceedings or sought other legal remedies.=

(f) If child custody, visitation, or support ha= ve already been adjudicated, the terms of a previous court order may be incorporated into a protection order. Visitation arrangements specified in = an existing order may be modified in a protection order for the purpose of preventing further abuse.

(g) Any protection order issued pursuant to this chapter shall be effective throughout the state and in all counties.=

(h) Any protection order issued by the court of another state shall be accorded full faith and credit and enforced as if it were an order of this state.

(Acts 1981, No. 81-476, p. 826, § 4; Acts 1995, No. 95-542, p. = 1126, § 1.)

§ 30-5-5. Petitions, motions, etc. -- Filing, forms, contents, cost= s.

(a) Any plaintiff may seek relief under this chapter for himself or herself, fo= r a minor, or for another person prevented by physical or mental incapacities f= rom seeking a protection order by filing a petition with the court of proper jurisdiction alleging abuse by the defendant.

(b) Forms for petitions, motions, and pleadings shall be available through the clerk's office. These forms shall be standard court forms. The clerk shall = not be required to provide assistance to persons in completing the forms or in presenting his or her case to the court.

(c= )(1) A court may issue mutual protection orders only if a separate petition has be= en filed by each party.

(2= ) When mutual protection orders are issued, the content of these orders must be sufficiently specific for any law enforcement officer to be able to determi= ne which party has violated the order, if there is probable cause to believe a violation of an order has occurred.

(d) Any eligible plaintiff who files a petition under this chapter, may do so through an attorney or may represent himself or herself pro se throughout t= he legal process outlined in this chapter, including, but not limited to, the filing of pleadings, motions, and any other legal documents with any court,= and the appearance in ex parte and formal court proceedings on his or her behal= f.

(e= )(1) Upon request, the court shall order the omission or deletion of the plainti= ff's address, the address of any member of the plaintiff's family or household, = or an address that would reveal the confidential location of a shelter for vic= tims of domestic violence as defined in = Section 30-6-1. That address shall be omitted or deleted from all docume= nts filed with the court, documents made available to the public, and documents made available to the defendant.

(2= ) If disclosure of the plaintiff's address, the address of any member of the plaintiff's family or household, or an address that would reveal the confidential location of a shelter for victims of domestic violence is necessary to determine jurisdiction or to consider a venue issue, it shall = be made orally and in camera.

(3= ) If the plaintiff has not disclosed an address under this section the plaintiff sha= ll satisfy one of the following requirements:

a. Designate and provide to the court an alternative address.

b.= Elect to substitute the address of his or her attorney of record in place of the = address of the plaintiff on any form, motion, or pleading.

(f) No court costs shall be assessed for the filing, issuance, registration, or service of a protective order or petition order or for a witness subpoena u= nder this chapter. Costs may be assessed against the defendant at the discretion= of the court.

§ 30-5-6. Hearing on petition; right to counsel; temporary orders.<= /b>

(a) Within 14 days of the filing of a petition under this chapter a hearing sha= ll be held at which the plaintiff shall prove the allegation of abuse by a preponderance of the evidence. The court shall advise the defendant that he= or she may be represented by counsel.

(b) The court may enter such temporary orders as it deems necessary to protect = the plaintiff or minor children from abuse, or the immediate and present danger= of abuse to the plaintiff or minor children, upon good cause shown in an ex pa= rte proceeding.

(c) If a hearing under subsection (a) is continued, the court may make or extend temporary orders under subsection (b) as it deems reasonably necessary.

§ 30-5-7. Orders for protection or modification -- Authorized, issuance, relief, time, amendment, etc.

(a) The court may grant any protection order or approve any consent agreement to bring about a cessation of abuse of the plaintiff or minor children.=

(b) If it appears from a petition for an order for protection or a petition to modify an order of protection that abuse has occurred or a modification of = an order for protection is required, the court may:

(1) Without notice or hearing, immediately issue an order for protection ex par= te or modify an order for protection ex parte as it deems necessary to protect= the plaintiff or minor children.

(2= ) After providing notice by certified mail to the defendant at his or her last known address, issue a final order for protection or modify an order for protecti= on after a hearing whether or not the defendant appears.

(c) A court may grant any of the following relief without notice and hearing in= an order for protection or a modification issued ex parte:
(1= ) Enjoin the defendant from threatening to commit or committing acts of abuse, as defined in this chapter, against the plaintiff or minor children, and any designated family or household member.

(2) Prohibit the defendant from harassing, annoying, telephoning, contacting, or otherwise communicating, directly or indirectly, with the plaintiff or minor children.

(3) Order the defendant to stay away from the residenc= e, school, or place of employment of the plaintiff, the minor children, or any specified place frequented by the plaintiff, the minor children, and any designated family or household member which the defendant has no legitimate reason to frequent.

(4) Award temporary custody of any minor children of t= he parties.

(5) Enjoin the defendant from interfering with the plaintiff's efforts to remove plaintiff's children and direct the appropria= te law enforcement officer to accompany the plaintiff during the effort to rem= ove plaintiff's children as necessary to protect the plaintiff or children from abuse.

(6) Enjoin the defendant from removing minor children = from the individual having legal custody of the minor children, except as otherw= ise authorized by a custody or visitation order issued by a court of competent jurisdiction.

(7) Remove and exclude the defendant from the residenc= e of the plaintiff, regardless of ownership of the residence.<= /p>
(8) Direct the appropriate law enforcement officer to accompany the plaintiff to the residence of the parties as necessary to pro= tect the plaintiff or children from abuse.

(9) Order other relief as it deems necessary to provide for the safety and welfare of the plaintiff or minor and any designated fam= ily or household member.

(10) Prohibit the defendant from transferring, conceal= ing, encumbering, or otherwise disposing of specified property mutually owned or leased by the parties.

(d) A court may grant any of the following relief in a final order for protecti= on or a modification of an order after notice and hearing, whether or not the defendant appears:

(1) Grant the relief available in subsection (c).

(2) Specify arrangements for visitation of any minor c= hild by the defendant on a basis that gives primary consideration to the safety = of the plaintiff or the minor child, or both, and require supervision by a thi= rd party or deny visitation if necessary to protect the safety of the plaintif= f or minor child, or both.

(3) Order the defendant to pay attorney's fees and cou= rt costs.

(4) When the defendant has a duty to support the plain= tiff or minor children living in the residence or household and the defendant is= the sole owner or lessee, grant to the plaintiff possession of the residence or household to the exclusion of the defendant by evicting the defendant or restoring possession to the plaintiff, or both, or by consent agreement allowing the defendant to provide suitable alternate housing.

(5) Order the defendant to pay temporary reasonable support for the plaintiff or any child in the plaintiff's custody, or both, when the defendant has a legal obligation to support such person. The amoun= t of temporary support awarded shall be in accordance with Child Support Guideli= nes.

(6) Order the defendant to provide temporary possessio= n of a vehicle to the plaintiff, if the plaintiff has no other means of transpor= tation of his or her own and the defendant either has control of more than one veh= icle or has alternate means of transportation.

(e)(1) Any final protection order or approved consent agreement shall be for a period of one year unless a shorter or longer peri= od of time is expressly ordered by the court. While the order is in effect, the court may amend its order or an approved consent agreement at any time upon subsequent petition filed by either party and a hearing held pursuant to th= is chapter.

(2) Upon motion and showing of cause a final protection order may be continued for a definite period of time to be set by the court= .

(f) No order or agreement under this chapter shall in any manner affect title to any real property, except final subsequent proceedings available by law.

§ 30-5-8. Copies of order issued to certain persons; notice of penalties on order.

(a) A copy of any order under this chapter shall be issued to the plaintiff, the defendant, and the law enforcement officials with jurisdiction to enforce t= he order or agreement.

(b) Each order shall bear the following language, prominently displayed: "A willful violation of this order is a Class A misdemeanor which is punishabl= e by a fine not to exceed two thousand dollars ($2,000) or imprisonment for up t= o a year in jail, or both, and is also punishable for civil contempt." However, failure to provide such notice shall not affect the validity of the protection order.

§ 30-5-9. Penalties.

A defendant who has violated a protection order issued pursuant to this chapt= er by the commission of an act of abuse as defined in this chapter or conduct other than abuse in violation of the order shall be guilty of a Class A misdemeanor. On the first conviction, the defendant shall be punished as pr= ovided by law. On a second conviction, the defendant shall be punished by a minimu= m of 30 days imprisonment which may not be suspended. On a third or subsequent conviction, the defendant shall be punished by a minimum sentence of 120 da= ys imprisonment which may not be suspended. Upon conviction, the person shall = be required to pay one-third of the cost of incarceration for each day impriso= ned in the county jail. The cost shall be determined by the judge and shall be entered as a money judgment against the defendant in favor of the county for which execution shall let. All monies collected for the cost of incarcerati= on shall be deposited into the county general fund earmarked for the administration of the county jail. The person shall also be subject to exis= ting penalties upon conviction of any criminal charges arising out of the incide= nt which is the basis of any protection order. The criminal penalties provided= by this section shall not affect any contempt of court proceeding.

§ 30-5-10. Rules of Civil Procedure to apply; rights, remedies, etc= ., of defendant.

Any proceeding for the issuance of a protection order under this chapter shall = be in accordance with the Rules of Civil Procedure and shall be in addition to= any other civil or criminal penalties provided by law. It is specifically provi= ded that any defendant shall have the same rights, remedies, and due process wh= ere any wrongful action is instituted as any defendant in other civil and crimi= nal actions.

§ 30-5-11. Construction of chapter.

The provisions of this chapter are supplemental and shall= be construed in pari materia with other laws relating to civil and criminal procedure; provided, however, those laws or parts of laws which are in dire= ct conflict or inconsistent herewith are hereby repealed.

ATTORNEY GENERAL OPINION SUMMARIES

GOVERNING DOMESTIC VIOLENCE

In Opinion 2001-034, dated November 16, 2000, issued to Frank W. Gregory, Administrative Director of Courts, the Attorney General clarified several issues regarding the implementation of the Domestic Viole= nce Bail Act, Act 2000-597, codified at §15-13-190, Code. Citing Article I, §16 of the Alabama Constitution of 1901, which provides that a defendant charged with a non-capital crime is entitled to bail as a matter = of right and §15-13-190(a), Code, t= he Attorney General advised as follows:

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 Personal Appearance Before a Judicial Officer Within 12 Hours - The maximum leng= th of time a defendant arrested for a domestic violence offense can be held without being released on bond is 12 hours from the time of his arrest. A personal appearance before a jud= ge or magistrate is not mandated by the Act after 12 hours have elapsed from the = time of the defendant’s arrest.

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 Conditions of Release - “Where no appearance before a judge or magistrate is provided, no conditions of release, other than the condition that the defen= dant post bail pursuant to the minimum amount in the Supreme Court’s bail schedule, is to be imposed. Since the Act requires a judge or magistrate to review the facts of each arrest and make specific findings on the record in determining whether to impose conditions on a defendant’s release, but only for those defendants who appear before them “within 12 hours of arrest,” when 12 hours have expired from the time of the defendant= 217;s arrest, no additional conditions, mandatory or otherwise, written or unwrit= ten, are to be imposed by a judge or magistrate unless the prosecutor files a mo= tion for reconsideration of bail pursuant to 7.5...(emphasis supplied).”

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 Findings on the record - UJS Form CR-48, entitled “Conditions of Release Domestic Violence Case,” is the proper form for making findings on the record as required by the Act.

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 Release on Bail a Constitutional Right - A judge or magistrate may not keep a defendant in custody awaiting trial more than 12 hours after arrest even wh= ere the defendant is determined to be a threat to others by being at large sinc= e Alabama’s Constitution provides that bail is a matter of right for non-capital offenses. However, where a defendant refuses to sign a release order promising to comply with bail provisions, the defendant cannot be released.

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 Release on Minimum Bail - A defendant that is not taken before a judicial offic= er within 12 hours must be released on the bail set according to the minimum amount provided in the bail schedule of the Supreme Court found in Rule 7 of the Rules of Criminal Procedure.

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Domestic Violence –Arrests – Bail – Charge for “Violation of= a Protection Order”

<= span style=3D'mso-tab-count:1'> &= nbsp; In Opinion 2001-150, dated April 12, 2001, to Orange Beach City Clerk C= athy Larrimore, the Attorney General advised that the specific charge for violat= ing a protection order issued pursuant to Section 15-13-190, Code, is section 30-5A-3(c)(1), Code, since 30-5A-3(c)(1), Code, provides that a “will= ful violation of a protection order, restraining order or injunctive order issu= ed to bring about the cessation of the abuse of a person and which is issued b= y a court of competent jurisdiction is a Class A misdemeanor.” The Attorney General reasoned:

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= ; The protection order violated need not have been issued under the Protection Fr= om Abuse Act (section 30-5-1 through 30-5-11 of the Code of Alabama), but may = be any protection order, restraining order, or injunctive order issued to bring about cessation of the abuse of a person, so long as such order not issued under the Protection from abuse Act specifies that a history of viol= ence of abuse exits (emphasis suppled).

[NOTE: UJS Form CR-48, entitled “Conditions of Release, Domestic Violence Case,” expressly prov= ides under Section “B” that the court has found that a history of violence or abuse exists.]

The Attorney General also advised that the e= xpress provisions of Section 15-13-190(a), Code, apply not only to persons arrested for a domestic violence offense, but to persons charged with a violation of= a protection order. Therefore, = the maximum amount of time a person charged with violating a protection order c= an be held without bond or an appearance before a judge or magistrate is 12 ho= urs from the time of arrest.

Domestic Violence – Protection Orders – Protection from Abuse Act

&= nbsp; In Opinion 2004-13, dated October 27, 2003, to Birmingham Municipal Court Presiding Judge Raymond P. Chambliss, the Attorney General advised that a municipal c= ourt has jurisdiction over misdemeanor violations of protection orders, pursuant= the section 30-5-9 of the “Protection from Abuse Act” when the following conditions apply: (= 1) the municipality has either an ordinance adopting all state misdemeanors offens= es or an ordinance specifically adopting the misdemeanor offense in section 30-5-9, Code; (2a) municipal law enforcement officers= who are in the police jurisdiction of the city make a warrantless arrest and is= sue a citation or file a complaint with the municipal judge or magistrate charg= ing the ordinance number adopted by the municipality (otherwise, the case would have to be placed in the district court’s jurisdiction), or (2b) a law enforcement officer or a person files a complaint in the municipal court ch= arging the ordinance number as adopted by the municipality (otherwise, the case wo= uld have to be placed in the district court’s jurisdiction); and (3) the misdemeanor offense ch= arged as an ordinance violation is not within one of the exceptions noted in sect= ion 12-12-32(a)(2) and (3), Code, and Rule 2.2(a) of the Alabama Rules of Crimi= nal Procedure, ARCrP (where the misdemeanor arises out of a felony, or where the misdemeanor is a lesser-included offense within a felony charge, either of which would require that the misdemeanor case be tried in the circuit court).

Domestic Violence Bail Requirements - Harassing Communications

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In Opinion 2001-054, dated December 14, 2000, to Thoma= s M. Smith, District Attorney, Sixth Judicial Circuit, the Attorney General advi= sed that Act 2000-597 (§15-13-190, Code), pro= viding procedures for judges and magistrates before releasing a person on bond who= has been charged with a domestic violence offense), does not apply to the crime= of “harassing communications,” [§13A-11-8(b)(1), Code], unless the defendant has violated a protective order or a condition of his = or her bond, either of which prohibit the defendant from performing acts that constitute harassing communications toward “family, household, or dat= ing or engagement relationship members” as defined by §15-10-3(b)(3), Code.&= nbsp;