Legal Information: South Dakota

Statutes: South Dakota

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Statutes: South Dakota

Updated: 
May 26, 2017

Current with laws of the 2017 Regular Session effective through April 13, 2017, Executive Orders, 17-1 and 17-2, and Supreme Court Rule 17-06. Please check to make sure there have been no changes since this time. You will find these and additional statutes on the South Dakota Legislature.

Title 21. Judicial Remedies

Updated: 
May 26, 2017

Chapter 21-65. Protection of Vulnerable Adults

Updated: 
May 26, 2017

21-65-1. Definitions

Updated: 
May 26, 2017

Terms used in this chapter mean, unless the context otherwise requires:

(1) “Attorney in fact,” an agent under a power of attorney pursuant to chapter 59-2 or an attorney in fact under a durable power of attorney pursuant to § 59-7-2.1;

(2) “Caretaker,” a related or nonrelated person who has the responsibility for the health or welfare of a vulnerable adult as a result of assuming the responsibility voluntarily, by contract, by receipt of payment for care, or by order of the court;

(3) “Conservator,” as defined in subdivision 29A-5-102(2);

(4) “Vulnerable adult abuse,” any of the following:

(a) Physical abuse as defined in subdivision 22-46-1(7);

(b) Emotional and psychological abuse as defined in subdivision 22-46-1(4);

(c) Neglect as defined in subdivision 22-46-1(6) and § 22-46-1.1; or

(d) Financial exploitation;

(5) “Family or household member,” a spouse, a person cohabiting with the vulnerable adult, a parent, or a person related to the vulnerable adult by consanguinity or affinity, but does not include children of the vulnerable adult who are less than eighteen years of age;

(6) “Fiduciary,” a person or entity with the legal responsibility to make decisions on behalf of and for the benefit of a vulnerable adult and to act in good faith and with fairness. The term, fiduciary, includes an attorney in fact, a guardian, or a conservator;

(7) “Financial exploitation,” exploitation as defined in subdivision 22-46-1(5) when committed by a person who stands in a position of trust or confidence;

(8) “Guardian,” as defined in subdivision 29A-5-102(4);

(9) “Peace officer,” as defined in subdivision 23A-45-9(13);

(10) “Petitioner,” a vulnerable adult who files a petition pursuant to this chapter, and includes a substitute petitioner who files a petition on behalf of a vulnerable adult pursuant to this chapter;

(11) “Present danger of vulnerable adult abuse,” a situation in which the respondent has recently threatened the vulnerable adult with initial or additional abuse or neglect or the potential for misappropriation, misuse, or removal of the funds, benefits, property, resources, belongings, or assets of the vulnerable adult combined with reasonable grounds to believe that abuse, neglect, or exploitation is likely to occur;

(12) “Pro se,” a person proceeding on the person's own behalf without legal representation;

(13) “Stands in a position of trust or confidence,” the person has any of the following relationships relative to the vulnerable adult:

(a) Is a parent, spouse, adult child, or other relative by consanguinity or affinity of the vulnerable adult;

(b) Is a caretaker for the vulnerable adult; or

(c) Is a person who is in a confidential relationship with the vulnerable adult. A confidential relationship does not include a legal, fiduciary, or ordinary commercial or transactional relationship the vulnerable adult may have with a bank incorporated pursuant to the provisions of any state or federal law; any savings and loan association or savings bank incorporated pursuant to the provisions of any state or federal law; any credit union organized pursuant to the provisions of any state or federal law; any attorney licensed to practice law in this state; or any agent, agency, or company regulated under title 58 or chapter 36-21A;

(14) “Substitute petitioner,” a family or household member, guardian, conservator, attorney in fact, or guardian ad litem for a vulnerable adult, or other interested person who files a petition pursuant to this chapter; and

(15) “Vulnerable adult,” a person sixty-five years of age or older who is unable to protect himself or herself from abuse as a result of age or a mental or physical condition, or an adult with a disability as defined in § 22-46-1.

21-65-2. Petition for relief from vulnerable adult abuse--Affidavit--Contents

Updated: 
May 26, 2017

A vulnerable adult or a substitute petitioner may seek relief from vulnerable adult abuse by filing a petition and affidavit in the circuit court or in a magistrate court with a magistrate judge presiding. Venue is where either party resides. The petition and affidavit shall include all of the following:

(1) The name of the vulnerable adult and the name and address of the vulnerable adult's attorney, if any. If the vulnerable adult is proceeding pro se, the petition shall include a mailing address for the vulnerable adult;

(2) The name of the substitute petitioner if the petition is being filed on behalf of a vulnerable adult, and the name and address of the attorney of the substitute petitioner. If the substitute petitioner is proceeding pro se, the petition shall include a mailing address for the substitute petitioner;

(3) The name and address, if known, of the respondent;

(4) The relationship of the vulnerable adult to the respondent;

(5) The nature of the alleged vulnerable adult abuse, including specific facts and circumstances of the abuse;

(6) The name and age of any other individual whose welfare may be affected; and

(7) The desired relief, including a request for temporary or emergency orders. A petition for relief may be made whether or not there is a pending lawsuit, complaint, petition, or other action between the parties. However, if there is any other lawsuit, complaint, petition, or other action pending between the parties, any new petition made pursuant to this section shall be made to the judge previously assigned to the pending lawsuit, petition, or other action, unless good cause is shown for the assignment of a different judge.

If a petition for a protection order alleging the existence of vulnerable adult abuse is filed with the court pursuant to this section and if the court, upon an initial review, determines that the allegations do not support the existence of vulnerable adult abuse, but that the allegations do support the existence of stalking or physical injury pursuant to § 22-19A-8 or domestic abuse pursuant to § 25-10-3, the court may hear and act upon the petition as though the petition had been filed under § 22-19A-8 or § 25-10-3 and subject to the provisions of the respective chapters.

21-65-3. Ex parte temporary protection order

Updated: 
May 26, 2017

If an affidavit filed with a petition under § 21-65-2 alleges that the vulnerable adult is in present danger of vulnerable adult abuse before an adverse party or his or her attorney can be heard in opposition, the court may grant an ex parte temporary protection order pending a full hearing and grant relief as the court deems proper, including an order:

(1) Restraining any person from committing vulnerable adult abuse; and

(2) Excluding any person from the dwelling or the residence of the vulnerable adult.

21-65-4. Rights of vulnerable adult in action brought by substitute petitioner

Updated: 
May 26, 2017

If a substitute petitioner files a petition pursuant to § 21-65-2 on behalf of a vulnerable adult, the vulnerable adult retains the right to all of the following:

(1) To contact and retain counsel;

(2) To have access to personal records;

(3) To file objections to the protection order;

(4) To request a hearing on the petition; and

(5) To present evidence and cross-examine witnesses at the hearing.

21-65-6. Guardian ad litem

Updated: 
May 26, 2017

Pursuant to § 15-6-17(c), the court may on its own motion or on the motion of a party appoint a guardian ad litem for a vulnerable adult if justice requires. The vulnerable adult's attorney may not also serve as the guardian ad litem.

21-65-7. Hearing on petition--Service of process

Updated: 
May 26, 2017

Upon receipt of the petition, if sufficient grounds are alleged for relief, the court shall order a hearing which shall be held not later than thirty days from the date of the order unless the court grants a continuance for good cause. Personal service of the petition, affidavit, and notice for hearing shall be made on the respondent not less than five days prior to the hearing.

Upon application of a party, the court shall issue subpoenas requiring attendance and testimony of witnesses and production of papers.

The court shall exercise its discretion in a manner that protects the vulnerable adult from traumatic confrontation with the respondent.

Hearings shall be recorded.

Upon application, notice to all parties, and hearing, the court may modify the terms of an existing protection order.

21-65-8. Continuance of ex parte temporary protection order

Updated: 
May 26, 2017

An ex parte temporary protection order is effective for a period of thirty days except as provided in § 21-65-9 unless the court grants a continuance for good cause. No continuance may exceed thirty days unless the court finds good cause for the additional continuance and:

(1) The parties stipulate to an additional continuance; or

(2) The court finds that law enforcement is unable to locate the respondent for purposes of service of the ex parte protection order.

If a continuance is granted, the court by order shall extend the ex parte temporary protection order until the rescheduled hearing date. The respondent shall be personally served with a copy of the ex parte order along with a copy of the petition, affidavit, and notice of the date set for the hearing. The ex parte order shall be served without delay under the circumstances of the case including service of the ex parte order on a Sunday or holiday. The law enforcement agency serving the order shall notify the petitioner by telephone or written correspondence when the order is served if the petitioner has provided to the law enforcement agency either a telephone number or address, or both, where the petitioner may be contacted. The law enforcement agency and any officer of the law enforcement agency is immune from civil and criminal liability if the agency or the officer makes a good faith attempt to notify the petitioner in a manner consistent with the provisions of this section.

21-65-9. Temporary protection order effective until protection order served

Updated: 
May 26, 2017

If an ex parte temporary protection order is in effect and the court issues a protection order pursuant to this chapter, the ex parte temporary protection order remains effective until the order issued pursuant to this chapter is served on the respondent.

21-65-10. Persons who may make showing for protection order

Updated: 
May 26, 2017

The showing required pursuant to § 21-65-11 may be made by any of the following:

(1) The vulnerable adult;

(2) The guardian, conservator, attorney in fact, or guardian ad litem of the vulnerable adult;

(3) A witness to the vulnerable adult abuse; or

(4) An adult protective services worker who has conducted an investigation.

21-65-11. Relief available for vulnerable adult abuse

Updated: 
May 26, 2017

Upon a finding by a preponderance of the evidence that vulnerable adult abuse has occurred, the court may order any of the following:

(1) That the respondent be required to move from the residence of the vulnerable adult if both the vulnerable adult and the respondent are titleholders or contract holders of record of the real property, are named as tenants in the rental agreement concerning the use and occupancy of the dwelling unit, are living in the same residence, or are married to each other;

(2) That the respondent provide suitable alternative housing for the vulnerable adult;

(3) That a peace officer accompany the party who is leaving or has left the party's residence to remove essential personal effects of the party;

(4) That the respondent be restrained from vulnerable adult abuse;

(5) That the respondent be restrained from entering or attempting to enter on any premises when it appears to the court that restraint is necessary to prevent the respondent from committing vulnerable adult abuse;

(6) That the respondent be restrained from exercising any powers on behalf of the vulnerable adult through a court-appointed guardian, conservator, or guardian ad litem, an attorney in fact, or another third party; and

(7) In addition to the relief provided in § 21-65-12, other relief that the court considers necessary to provide for the safety and welfare of the vulnerable adult.

Any relief granted by the order for protection shall be for a fixed period and may not exceed five years.

21-65-12. Relief available for financial exploitation

Updated: 
May 26, 2017

If the court finds that the vulnerable adult has been the victim of financial exploitation, the court may order the relief the court considers necessary to prevent or remedy the financial exploitation, including any of the following:

(1) Directing the respondent to refrain from exercising control over the funds, benefits, property, resources, belongings, or assets of the vulnerable adult;

(2) Requiring the respondent to return custody or control of the funds, benefits, property, resources, belongings, or assets to the vulnerable adult;

(3) Requiring the respondent to follow the instructions of the guardian, conservator, or attorney in fact of the vulnerable adult; and

(4) Prohibiting the respondent from transferring the funds, benefits, property, resources, belongings, or assets of the vulnerable adult to any person other than the vulnerable adult.

21-65-14. Term of protection order--Amendment or extension

Updated: 
May 26, 2017

A protection order shall be for a fixed period of time not to exceed five years. The court may amend or extend an order at any time upon a petition filed by either party and after notice and a hearing. The court may extend an order if the court, after a hearing at which the respondent has the opportunity to be heard, finds that the respondent continues to pose a threat to the safety of the vulnerable adult, a person residing with the vulnerable adult, or a member of the vulnerable adult's immediate family, or continues to present a risk of financial exploitation of the vulnerable adult. The number of extensions that the court may grant is not limited.

Title 22. Crimes

Updated: 
May 26, 2017

Chapter 22-40. Identity Crimes

Updated: 
May 26, 2017

22-40-8. Identity theft — Felony

Updated: 
May 26, 2017

If any person, without the authorization or permission of another person and with the intent to deceive or defraud:

(1) Obtains, possesses, transfers, uses, attempts to obtain, or records identifying information not lawfully issued for that person’s use; or

(2) Accesses or attempts to access the financial resources of that person through the use of identifying information;

such person commits the crime of identity theft. Identity theft committed pursuant to this section is a Class 6 felony.

Chapter 22-1. Definitions and General Provisions

Updated: 
May 26, 2017

22-1-2. Definition of terms

Updated: 
May 26, 2017

Terms used in this title mean:

(1) If applied to the intent with which an act is done or omitted:

(a) The words, “malice, maliciously,” and all derivatives thereof import a wish to intentionally vex, annoy, or injure another person, established either by proof or presumption of law;

(b) The words, “intent, intentionally,” and all derivatives thereof, import a specific design to cause a certain result or, if the material part of a charge is the violation of a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, a specific design to engage in conduct of that nature;

(c) The words, “knowledge, knowingly,” and all derivatives thereof, import only a knowledge that the facts exist which bring the act or omission within the provisions of any statute. A person has knowledge if that person is aware that the facts exist which bring the act or omission within the provisions of any statute. Knowledge of the unlawfulness of such act or omission is not required;

(d) The words, “reckless, recklessly,” and all derivatives thereof, import a conscious and unjustifiable disregard of a substantial risk that the offender's conduct may cause a certain result or may be of a certain nature. A person is reckless with respect to circumstances if that person consciously and unjustifiably disregards a substantial risk that such circumstances may exist;

(e) The words, “neglect, negligently,” and all words derived thereof, import a want of attention to the nature or probable consequences of an act or omission which a prudent person ordinarily bestows in acting in his or her own concerns;

(f) If the section defining an offense provides that negligence suffices to establish an element thereof, then recklessness, knowledge, intent, or malice also constitutes sufficient culpability for such element. If recklessness suffices to establish an element of the offense, then knowledge, intent or malice also constitutes sufficient culpability for such element. If knowledge suffices to establish an element of an offense, then intent or malice also constitutes sufficient culpability for such element. If intent suffices to establish an element of an offense, then malice also constitutes sufficient culpability for such element;

(2) “Actor,” the person who takes the active part in a transaction;

(3) “Affirmative defense,” an issue involving an alleged defense to which, unless the state's evidence raises the issue, the defendant, to raise the issue, must present some credible evidence. If the issue involved in an affirmative defense is raised, then the guilt of the defendant must be established beyond a reasonable doubt as to that issue as well as all other elements of the offense;

(4) “Antique firearm,” any firearm, including any firearm with a matchlock, flintlock, percussion cap or similar type of ignition system, manufactured before 1899, and any replica of any firearm described in this section if such replica is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition or if it uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade;

(5) “Check,” any check, draft, order or other commercial device which orders a financial institution to pay a sum certain of money on its presentment;

(6) “Concealed,” any firearm that is totally hidden from view. If any part of the firearm is capable of being seen, it is not concealed;

(7) “Consideration,” any type of property or thing of legal value, whether delivered in the past, present or to be delivered in the future. The term includes an unfulfilled promise to deliver. The term may include an advantage or benefit to the promisor or a loss or detriment to the promisee. Any amount, advantage or inconvenience, no matter how trifling, is sufficient to constitute consideration;

(8) “Controlled weapon” includes any firearm silencer, machine gun, or short shotgun, as those terms are defined in subdivisions (17), (23), and (46) of this section;

(9) “Crime of violence,” any of the following crimes or an attempt to commit, or a conspiracy to commit, or a solicitation to commit any of the following crimes: murder, manslaughter, rape, aggravated assault, riot, robbery, burglary in the first degree, arson, kidnapping, felony sexual contact as defined in § 22-22-7, felony child abuse as defined in § 26-10-1, or any other felony in the commission of which the perpetrator used force, or was armed with a dangerous weapon, or used any explosive or destructive device;

(10) “Dangerous weapon” or “deadly weapon,” any firearm, stun gun, knife, or device, instrument, material, or substance, whether animate or inanimate, which is calculated or designed to inflict death or serious bodily harm, or by the manner in which it is used is likely to inflict death or serious bodily harm;

(11) “Dealer in stolen property,” any person who:

(a) Is found in possession or control of property stolen from two or more persons on separate occasions; or

(b) Has received stolen property in another transaction within the year preceding the commencement of the prosecution; or

(c) Trades in property similar to the type of stolen property received and acquires such property for a consideration which that person knows is substantially below its reasonable value;

(12) “Deprive,” to take or to withhold property of another or to dispose of property of another so as to make it unlikely that the owner will receive it;

(13) “Destructive device,”

(a) Any bomb, grenade, explosive missile, or similar device or any launching device therefor; or

(b) Any breakable container which contains a flammable liquid with a flashpoint of one hundred and fifty degrees Fahrenheit or less and has a wick or similar device capable of being ignited;

(c) The term does not include “permissible fireworks,” defined by § 34-37-5; any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety or similar device; surplus ordnance sold, loaned or given by the secretary of the army pursuant to the provisions of 10 U.S.C. §§ 4684(2), 4685, or 4686; or any other device which is an antique or is a rifle which the owner intends to use solely for sporting purposes;

(14) “Explosive,” any substance, or combination of substances, that is used for the purpose of detonation and which, upon exposure to any external or internal force or condition, is capable of a relatively instantaneous release of gas and heat. The term does not include “permissible fireworks,” as defined by § 34-37-5;

(15) “Financial institution,” a bank, insurance company, credit union, savings and loan association, investment trust, or other organization held out to the public as a place of deposit of funds or medium of savings or collective investment;

(16) “Firearm,” any weapon from which a projectile or projectiles may be discharged by gunpowder. As used in this subdivision, the term, gunpowder, includes any propellant that upon oxidization emits heat and light and is commonly used in firearms cartridges;

(17) “Firearm silencer,” any instrument, attachment, weapon or appliance for causing the firing of any gun, revolver, pistol, or other firearm to be silent, or intended to lessen or muffle the noise of the firing of any such weapon;

(18) “Government,” the United States, any state, county, municipality, school district, or other political unit, or any department, agency, or subdivision of any of the foregoing, or any corporation or other association carrying out the functions of any of the foregoing;

(19) “Immediate family,” any spouse, child, parent, or guardian of the victim;

(20) “Insanity,” the condition of a person temporarily or partially deprived of reason, upon proof that at the time of committing the act, the person was incapable of knowing its wrongfulness, but not including an abnormality manifested only by repeated unlawful or antisocial behavior;

(21) “Intoxication,” a disturbance of mental or physical capacities resulting from the introduction of substances into the body. Intoxication is not, in itself, a mental disease or defect;

(22) “Law enforcement officer,” any officer, prosecutor, or employee of the state or any of its political subdivisions or of the United States, or, while on duty, an agent or employee of a railroad or express company or security personnel of an airline or airport, who is responsible for the prevention, detection, or prosecution of crimes, for the enforcement of the criminal or highway traffic laws of the state, or for the supervision of confined persons or those persons on supervised release or probation;

(23) “Machine gun,” any firearm, whatever its size and usual designation, that automatically discharges two or more cartridges by a single function of the firing device;

(24) “Mental illness,” any substantial psychiatric disorder of thought, mood or behavior which affects a person at the time of the commission of the offense and which impairs a person's judgment, but not to the extent that the person is incapable of knowing the wrongfulness of such act. Mental illness does not include abnormalities manifested only by repeated criminal or otherwise antisocial conduct;

(25) “Moral turpitude,” an act done contrary to justice, honesty, principle, or good morals, as well as an act of baseness, vileness, or depravity in the private and social duties which a person owes to his fellow man or to society in general;

(26) “Motor vehicle,” any automobile, motor truck, motorcycle, house trailer, trailer coach, cabin trailer, or any vehicle propelled by power other than muscular power;

(27) “Obtain,”

(a) In relation to property, to bring about a transfer or purported transfer of a legal interest in the property, whether to the actor or another; or

(b) In relation to labor or service, to secure performance thereof;

(28) “Occupied structure,” any structure:

(a) Which is the permanent or temporary habitation of any person, whether or not any person is actually present;

(b) Which at the time is specially adapted for the overnight accommodation of any person, whether or not any person is actually present; or

(c) In which at the time any person is present;

(29) “Offense” or “public offense,” any crime, petty offense, violation of a city or county ordinance, or act prohibited by state or federal law;

(30) “Pass,” to utter, publish or sell or to put or send forth into circulation. The term includes any delivery of a check to another for value with intent that it shall be put into circulation as money;

(31) “Person,” any natural person, unborn child, association, limited liability company, corporation, firm, organization, partnership, or society. If the term is used to designate a party whose property may be the subject of a crime or petty offense, it also includes the United States, any other country, this state, and any other state or territory of the United States, and any of their political subdivisions, agencies, or corporations;

(32) “Pistol,” any firearm with a barrel less than sixteen inches in length, designed to expel a projectile or projectiles by the action of an explosive;

(33) “Private place,” a place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance, but does not include a place to which the public or a substantial group thereof has access;

(34) “Process,” any writ, warrant, summons, or order issued in the course of judicial proceedings;

(35) “Property,” anything of value, including, but not limited to, motor vehicles, real estate, tangible and intangible personal property, contract rights, choses-in-action, and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, electric or other power, services, and signatures which purport to create, maintain, or extinguish any legal obligation;

(36) “Property of another,” property in which any person other than the actor has an interest upon which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property and regardless of the fact that the other person might be precluded from civil recovery because the property was used in an unlawful transaction or was subject to forfeiture as contraband. Property in possession of an actor may not be deemed property of another who has only a security interest therein, even if legal title is in the creditor pursuant to a conditional sales contract or other security agreement;

(37) “Public employee,” any person employed by the state or any of its political subdivisions, who is not a public officer;

(38) “Public office,” the position held by a public officer or employee;

(39) “Public officer,” any person who holds a position in the state government or in any of its political subdivisions, by election or appointment, for a definite period, whose duties are fixed by law, and who is invested with some portion of the sovereign functions of government;

(40) “Public record,” any official book, paper, or record created, received, or used by or in any office or agency of the state or of any of its political subdivisions;

(41) “Publish,” to disseminate, circulate or place before the public in any way, other than by speech which is not mechanically or electronically amplified;

(42) “Receive,” to acquire possession, control or title, or to lend or borrow on the security of the property;

(43) “Service,” labor that does not include a tangible commodity. The term includes, but is not limited to: labor; professional advice; telephone, cable television and other utility service; accommodations in hotels, restaurants or elsewhere; admissions to exhibits and entertainments; the use of machines designed to be operated by coin or other thing of value; and the use of rental property;

(44) “Seller,” any person or employee engaged in the business of selling pistols at retail;

(44A) “Serious bodily injury,” such injury as is grave and not trivial, and gives rise to apprehension of danger to life, health, or limb;

(45) “Short rifle,” any rifle having a barrel less than sixteen inches long, or an overall length of less than twenty-six inches;

(46) “Short shotgun,” any shotgun having a barrel less than eighteen inches long or an overall length of less than twenty-six inches;

(47) “Signature,” any name, mark or sign written with intent to authenticate any instrument or writing;

(48) Deleted by SL 2005, ch 120, § 357

(49) “Structure,” any house, building, outbuilding, motor vehicle, watercraft, aircraft, railroad car, trailer, tent, or other edifice, vehicle or shelter, or any portion thereof;

(50) “Stun gun,” any battery-powered, pulsed electrical device of high voltage and low or no amperage that can disrupt the central nervous system and cause temporary loss of voluntary muscle control of a person;

(50A) “Unborn child,” an individual organism of the species homo sapiens from fertilization until live birth;

(51) “Unoccupied structure,” any structure which is not an occupied structure;

(52) “Vessel,” if used with reference to shipping, any ship of any kind and every structure adapted to be navigated from place to place;

(53) “Victim,” any natural person against whom the defendant in a criminal prosecution has committed or attempted to commit a crime;

(54) “Voluntary intoxication,” intoxication caused by substances that an actor knowingly introduces into his or her body, the tendency of which is to cause intoxication;

(55) “Written instrument,” any paper, document, or other instrument containing written or printed matter or the equivalent thereof, used for purposes of reciting, embodying, conveying, or recording information, and any money, credit card, token, stamp, seal, badge, trade mark, service mark or any evidence or symbol of value, right, privilege or identification, which is capable of being used to the advantage or disadvantage of some person.

22-1-4. Felony and misdemeanor distinguished

Updated: 
May 26, 2017

Any crime is either a felony or a misdemeanor. A felony is a crime which is or may be punishable by imprisonment in the state penitentiary. Every other crime is a misdemeanor.

Chapter 22-14. Unlawful Use of Weapons

Updated: 
May 26, 2017

22-14-15. Possession of firearm by one with prior violent crime conviction or certain drug-related conviction--Felony--Fifteen-year period

Updated: 
May 26, 2017

No person who has been convicted in this state or elsewhere of a crime of violence or a felony pursuant to § 22-42-2, 22-42-3, 22-42-4, 22-42-7, 22-42-8, 22-42-9, 22-42-10 or 22-42-19, may possess or have control of a firearm. A violation of this section is a Class 6 felony. The provisions of this section do not apply to any person who was last discharged from prison, jail, probation, or parole more than fifteen years prior to the commission of the principal offense.

22-14-15.1 Possession of firearm by one with prior drug conviction--Felony--Exception

Updated: 
May 26, 2017

No person who has been convicted of a felony under chapter 22-42 or of a felony for a crime with the same elements in another state may possess or have control of a firearm. A violation of this section is a Class 6 felony. The provisions of this section do not apply to any person who was last discharged from prison, jail, probation, or parole, for a felony under chapter 22-42 more than five years prior to the commission of the principal offense and is not subject to the restrictions in § 22-14-15.

22-14-15.2 Possession of firearm by one convicted of misdemeanor crime involving domestic violence--Misdemeanor--Civil rights restored--Repeal of section--Order restoring rights

Updated: 
May 26, 2017

No person who has been convicted of any misdemeanor crime involving an act of domestic violence may possess or have control of a firearm for a period of one year from the date of conviction. Any violation of this section is a Class 1 misdemeanor. At the end of the one year period, any civil rights lost as a result of this provision shall be restored. Any person who has lost their right to possess or have control of a firearm as a result of a misdemeanor conviction involving an act of domestic violence, prior to July 1, 2005, shall be restored to those civil rights one year after July 1, 2005. This section shall be repealed on the date when any federal law restricting the right to possess firearms for misdemeanor domestic violence convictions is repealed.

Once eligible under the statute, a person convicted under this section may petition the convicting court for an order reflecting the restoration of any firearm rights lost, if the person has not been convicted within the prior year of a crime for which firearm rights have been lost. A petition filed under this section shall be verified by the petitioner and served upon the states attorney in the county where the conviction occurred. Thirty days after service upon the states attorney, the court shall enter the order, if the court finds that the petitioner is eligible for relief under this section.

Chapter 22-18. Assaults and Personal Injuries

Updated: 
May 26, 2017

22-18-1. Simple assault--Misdemeanor--Felony for subsequent offenses

Updated: 
May 26, 2017

Any person who:

(1) Attempts to cause bodily injury to another and has the actual ability to cause the injury;

(2) Recklessly causes bodily injury to another;

(3) Negligently causes bodily injury to another with a dangerous weapon;

(4) Attempts by physical menace or credible threat to put another in fear of imminent bodily harm, with or without the actual ability to harm the other person; or

(5) Intentionally causes bodily injury to another which does not result in serious bodily injury;

is guilty of simple assault. Simple assault is a Class 1 misdemeanor. However, if the defendant has been convicted of, or entered a plea of guilty to, two or more violations of § 22-18-1, 22-18-1.1, 22-18-26, or 22-18-29 within ten years of committing the current offense, the defendant is guilty of a Class 6 felony for any third or subsequent offense.

22-18-1.1. Aggravated assault--Felony

Updated: 
May 26, 2017

Any person who:

(1) Attempts to cause serious bodily injury to another, or causes such injury, under circumstances manifesting extreme indifference to the value of human life;

(2) Attempts to cause, or knowingly causes, bodily injury to another with a dangerous weapon;

(3) Deleted by SL 2005, ch 120, § 2;

(4) Assaults another with intent to commit bodily injury which results in serious bodily injury;

(5) Attempts by physical menace with a deadly weapon to put another in fear of imminent serious bodily harm; or

(6) Deleted by SL 2005, ch 120, § 2;

(7) Deleted by SL 2012, ch 123, § 4;

(8) Attempts to induce a fear of death or imminent serious bodily harm by impeding the normal breathing or circulation of the blood of another person by applying pressure on the throat or neck, or by blocking the nose and mouth;

is guilty of aggravated assault. Aggravated assault is a Class 3 felony.

Chapter 22-19A. Stalking

Updated: 
May 26, 2017

22-19A-1. Stalking as a misdemeanor.

Updated: 
May 26, 2017

No person may:

(1) Willfully, maliciously, and repeatedly follow or harass another person;

(2) Make a credible threat to another person with the intent to place that person in reasonable fear of death or great bodily injury; or

(3) Willfully, maliciously, and repeatedly harass another person by means of any verbal, electronic, digital media, mechanical, telegraphic, or written communication.

A violation of this section constitutes the crime of stalking. Stalking is a Class 1 misdemeanor. However, any second or subsequent conviction occurring within ten years of a prior conviction under this section is a Class 6 felony.

22-19A-2. Violation of restraining order, injunction, or protection order as felony.

Updated: 
May 26, 2017

Any person who violates § 22-19A-1 when there is a temporary restraining order, or an injunction, or a protection order, or a no contact order issued pursuant to § 25-10-23 or 25-10-25 in effect prohibiting the behavior described in § 22-19A-1 against the same party, is guilty of a Class 6 felony.

22-19A-3. Subsequent convictions as felony.

Updated: 
May 26, 2017

A second or subsequent conviction occurring within seven years of a prior conviction under § 22-19A-1, 22-19A-2, or 22-19A-7 against the same victim, and involving an act of violence, or a credible threat of violence, is guilty of a Class 5 felony.

22-19A-4. Harasses defined.

Updated: 
May 26, 2017

For the purposes of this chapter, harasses means a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person, and which serves no legitimate purpose.

22-19A-5. Course of conduct defined.

Updated: 
May 26, 2017

For the purposes of this chapter, course of conduct means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of course of conduct.

22-19A-6. A credible threat defined.

Updated: 
May 26, 2017

For the purposes of this chapter, a credible threat means a threat made with the intent and the apparent ability to carry out the threat. A credible threat need not be expressed verbally.

22-19A-7. Stalking a child twelve or younger -- Felony.

Updated: 
May 26, 2017

Any person who willfully, maliciously, and repeatedly follows or harasses a child twelve years of age or younger or who makes a credible threat to a child twelve years of age or younger with the intent to place that child in reasonable fear of death or great bodily injury or with the intent to cause the child to reasonably fear for the child's safety is guilty of the crime of felony stalking. Felonious stalking is a Class 6 felony.

22-19A-8. Petition for protection order -- Procedures.

Updated: 
May 26, 2017

There exists an action known as a petition for a protection order in cases of stalking, in cases of physical injury as a result of an assault, or in cases of a crime of violence as defined in subdivision 22-1-2(9). Procedures for the action are as follows:



(1) A petition under this section may be made against any person who violates § 22-19A-1 or against any other person against whom stalking or physical injury as a result of an assault or in cases where a crime of violence is alleged;



(2) A petition shall allege the existence of (a) stalking or (b) physical injury as a result of an assault or (c) a crime of violence, and shall be accompanied by an affidavit made under oath stating the specific facts and circumstances of the stalking or the physical injury as a result of an assault or crime of violence;



(3) A petition for relief may be made whether or not there is a pending lawsuit, complaint, petition, or other action between the parties.



The clerk of the circuit court shall make available standard petition forms with instructions for completion to be used by a petitioner. The attorney general shall prepare the standard petition form.

22-19A-9. Filing petition for protection -- Venue.

Updated: 
May 26, 2017

A petition for relief under §§ 22-19A-8 to 22-19A-16, inclusive, may be filed in circuit court or in a magistrate court with a magistrate judge presiding. Venue lies where any party to the proceedings resides.

22-19A-10. Hearing on petition for protection -- Date -- Notice.

Updated: 
May 26, 2017

Upon receipt of the petition, if sufficient grounds are alleged for relief, the court shall order a hearing which shall be held not later than thirty days from the date of the order unless for good cause the court grants a continuance. Personal service of the petition, affidavit, and notice for hearing shall be made on the respondent not less than five days prior to the hearing.

22-19A-11. Relief granted by protection order.

Updated: 
May 26, 2017

Upon notice and a hearing, if the court finds by a preponderance of the evidence that stalking has taken place, the court may provide relief as follows:



(1) Restrain any party from committing acts of stalking or physical injury as a result of an assault or a crime of violence as defined in subdivision 22-1-2(9);



(2) Order other relief as the court deems necessary for the protection of the person seeking the protection order, including orders or directives to law enforcement officials.



Any relief granted by the order for protection shall be for a fixed period and may not exceed five years.

22-19A-12. Ex parte temporary order pending full hearing on petition for protection.

Updated: 
May 26, 2017

If an affidavit filed with an application under § 22-19A-8 alleges that immediate and irreparable injury, loss, or damage is likely to result before an adverse party or the party's attorney can be heard in opposition, the court may grant an ex parte temporary protection order pending a full hearing and granting relief as the court deems proper, including an order restraining any person from committing acts of stalking or physical injury as a result of an assault or a crime of violence as defined in subdivision 22-1-2(9). An ex parte temporary protection order is effective for a period of thirty days unless for good cause the court grants a continuance. No continuance may exceed thirty days unless the court finds good cause for the additional continuance and:

(1) The parties stipulate to an additional continuance; or

(2) The court finds that law enforcement is unable to locate the respondent for purposes of service of the ex parte protection order.

If a continuance is granted, the court by order shall extend the ex parte temporary protection order until the rescheduled hearing date. The respondent shall be personally served without delay with a copy of the ex parte order along with a copy of the petition, affidavit, and notice of the date set for the hearing.

22-19A-13. Exceptional circumstances required before court action authorized.

Updated: 
May 26, 2017

The court may not require an undertaking or other security of any party to a petition for an order of protection other than in exceptional circumstances.

22-19A-14. Modification of terms of protection order.

Updated: 
May 26, 2017

Upon application, notice to all parties, and hearing, the court may modify the terms of an existing order for protection.

22-19A-15. Delivery of protection order to law enforcement agency -- Notice of order to officers.

Updated: 
May 26, 2017

The petitioner may deliver an order for protection granted pursuant to § § 22-19A-8 to 22-19A-16, inclusive, within twenty-four hours to the local law enforcement agency having jurisdiction over the residence of the petitioner. Each appropriate law enforcement agency shall make available to other law enforcement officers information as to the existence and status of any order for protection issued pursuant to § § 22-19A-8 to 22-19A-16, inclusive.

22-19A-16. Violation of protection order -- Penalties.

Updated: 
May 26, 2017

If a temporary protection order or a protection order is granted pursuant to §§ 22-19A-8 to 22-19A-16, inclusive, and the respondent or person to be restrained knows of the order, violation of the order is a Class 1 misdemeanor. If any violation of this section constitutes an assault pursuant to § 22-18-1.1, the violation is a Class 6 felony. If a respondent or person to be restrained has been convicted of, or entered a plea of guilty to, two or more violations of this section or § 25-10-13, the factual basis for which occurred after the date of the second conviction, and occurred within ten years of committing the current offense, the respondent or person to be restrained is guilty of a Class 6 felony for any third or subsequent offense. Any proceeding under §§ 22-19A-8 to 22-19A-16, inclusive, is in addition to other civil or criminal remedies.

22-19A-17. Defendant prohibited from contacting victim prior to court appearance.

Updated: 
May 26, 2017

While in custody after arrest for assault or stalking, no defendant may have or be permitted any contact or communications, either directly or by means of a third party, with the victim or the family or household members of the victim, until the defendant's initial court appearance or until such contact or communication is specifically authorized by the court. Willful violation of this section is a Class 1 misdemeanor.

Chapter 22-21. Invasions of privacy

22-21-4. Use or dissemination of visual recording or photographic device without consent and with intent to self-gratify, harass, or embarrass--Misdemeanor or felony

No person may use or disseminate in any form any visual recording or photographic device to photograph or visually record any other person without clothing or under or through the clothing, or with another person depicted in a sexual manner, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, with the intent to self-gratify, to harass, or embarrass and invade the privacy of that other person, under circumstances in which the other person has a reasonable expectation of privacy. A violation of this section is a Class 1 misdemeanor. However, a violation of this section is a Class 6 felony if the victim is seventeen years of age or younger and the perpetrator is at least twenty-one years old.

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Chapter 22-42. Controlled Substances and Marijuana

Updated: 
May 26, 2017

22-42-2. Unauthorized manufacture, distribution, counterfeiting or possession of Schedule I or II substances as felony--Mandatory sentences

Updated: 
May 26, 2017

Except as authorized by this chapter or chapter 34-20B, no person may manufacture, distribute, or dispense a substance listed in Schedules I or II; possess with intent to manufacture, distribute, or dispense a substance listed in Schedules I or II; create or distribute a counterfeit substance listed in Schedules I or II; or possess with intent to distribute a counterfeit substance listed in Schedules I or II. A violation of this section is a Class 4 felony. However, a violation of this section is a Class 3 felony if the person is in possession of three or more of the following:

(1) Three hundred dollars or more in cash;

(2) A firearm or other weapon pursuant to §§ 22-14-6, 22-14-15, 22-14-15.1, 22-14-15.3, and subdivision 22-1-2(8);

(3) Bulk materials used for the packaging of controlled substances;

(4) Materials used to manufacture a controlled substance including recipes, precursor chemicals, laboratory equipment, lighting, ventilating or power generating equipment; or

(5) Drug transaction records or customer lists.

The distribution of a substance listed in Schedules I or II to a minor is a Class 2 felony. A first conviction under this section shall be punished by a mandatory sentence in the state penitentiary of at least one year, which sentence may not be suspended. Probation, suspended imposition of sentence, or suspended execution of sentence may not form the basis for reducing the mandatory time of incarceration required by this section. A second or subsequent conviction under this section shall be punished by a mandatory sentence in the state penitentiary of at least ten years, which sentence may not be suspended. Probation, suspended imposition of sentence, or suspended execution of sentence may not form the basis for reducing the mandatory time of incarceration required by this section. However, a first conviction for distribution to a minor under this section shall be punished by a mandatory sentence in the state penitentiary of at least five years, which sentence may not be suspended. Probation, suspended imposition of sentence, or suspended execution of sentence may not form the basis for reducing the mandatory time of incarceration required by this section. A second or subsequent conviction for distribution to a minor under this section shall be punished by a mandatory sentence in the state penitentiary of at least fifteen years, which sentence may not be suspended. Probation, suspended imposition of sentence, or suspended execution of sentence, may not form the basis for reducing the mandatory time of incarceration required by this section.

A civil penalty may be imposed, in addition to any criminal penalty, upon a conviction of a violation of this section not to exceed ten thousand dollars. A conviction for the purposes of the mandatory sentence provisions of this chapter is the acceptance by a court of any plea, other than not guilty, including nolo contendere, or a finding of guilt by a jury or court.

22-42-3. Unauthorized manufacture, distribution, counterfeiting or possession of Schedule III substances as felony--Mandatory sentences

Updated: 
May 26, 2017

Except as authorized by this chapter or chapter 34-20B, no person may manufacture, distribute, or dispense a controlled drug or substance listed in Schedule III; possess with intent to manufacture, distribute, or dispense a substance listed in Schedule III; create or distribute a counterfeit substance listed in Schedule III; or possess with intent to distribute a counterfeit substance listed in Schedule III. A violation of this section is a Class 5 felony. However, the distribution of a substance listed in Schedule III to a minor is a Class 3 felony. A first conviction under this section shall be punished by a mandatory sentence in the state penitentiary or county jail of at least thirty days, which sentence may not be suspended. A second or subsequent conviction under this section shall be punished by a mandatory penitentiary or county jail sentence of at least one year, which sentence may not be suspended. However, a first conviction for distribution to a minor under this section shall be punished by a mandatory sentence in the state penitentiary or county jail of at least ninety days, which sentence may not be suspended. A second or subsequent conviction for distribution to a minor under this section shall be punished by a mandatory sentence in the state penitentiary of at least two years, which sentence may not be suspended. A civil penalty may be imposed, in addition to any criminal penalty, upon a conviction of a violation of this section not to exceed ten thousand dollars.

22-42-4. Unauthorized manufacture, distribution, counterfeiting or possession of Schedule IV substances as felony--Mandatory sentences

Updated: 
May 26, 2017

Except as authorized by this chapter or chapter 34-20B, no person may manufacture, distribute, or dispense a controlled drug or substance listed in Schedule IV; possess with intent to manufacture, distribute, or dispense a substance listed in Schedule IV; create or distribute a counterfeit substance listed in Schedule IV; or possess with intent to distribute a counterfeit substance listed in Schedule IV. A violation of this section is a Class 6 felony. However, the distribution of a substance listed in Schedule IV to a minor is a Class 4 felony. A first conviction under this section shall be punished by a mandatory sentence in the state penitentiary or county jail of at least thirty days, which sentence may not be suspended. A second or subsequent conviction under this section shall be punished by a mandatory penitentiary or county jail sentence of at least one year, which sentence may not be suspended. A civil penalty may be imposed, in addition to any criminal penalty, upon a conviction of a violation of this section not to exceed ten thousand dollars. Notwithstanding any other provision of this section, a violation of this section with respect to distribution of Flunitrazepam to a minor is a Class 4 felony, but in all other cases under this section is a Class 5 felony.

22-42-7. Distribution or possession with intent to distribute specified amounts of marijuana

Updated: 
May 26, 2017

The distribution, or possession with intent to distribute, of less than one-half ounce of marijuana without consideration is a Class 1 misdemeanor; otherwise, the distribution, or possession with intent to distribute, of one ounce or less of marijuana is a Class 6 felony. The distribution, or possession with intent to distribute, of more than one ounce but less than one-half pound of marijuana is a Class 5 felony. The distribution, or possession with intent to distribute, of one-half pound but less than one pound of marijuana is a Class 4 felony. The distribution, or possession with intent to distribute, of one pound or more of marijuana is a Class 3 felony. The distribution, or possession with intent to distribute, of less than one-half ounce of marijuana to a minor without consideration is a Class 6 felony; otherwise, the distribution, or possession with intent to distribute, of one ounce or less of marijuana to a minor is a Class 5 felony. The distribution, or possession with intent to distribute, of more than one ounce but less than one-half pound of marijuana to a minor is a Class 4 felony. The distribution, or possession with intent to distribute, of one-half pound but less than one pound of marijuana to a minor is a Class 3 felony. The distribution, or possession with intent to distribute, of one pound or more of marijuana to a minor is a Class 2 felony. A first conviction of a felony under this section shall be punished by a mandatory sentence in the state penitentiary or county jail of at least thirty days, which sentence may not be suspended. A second or subsequent conviction of a felony under this section shall be punished by a mandatory sentence of at least one year. Conviction of a Class 1 misdemeanor under this section shall be punished by a mandatory sentence in county jail of not less than fifteen days, which sentence may not be suspended. A civil penalty, not to exceed ten thousand dollars, may be imposed, in addition to any criminal penalty, upon a conviction of a felony violation of this section.

22-42-8. Obtaining possession of controlled substance by theft, misrepresentation, forgery, or fraud

Updated: 
May 26, 2017

Any person who knowingly obtains possession of a controlled drug or substance by theft, misrepresentation, forgery, fraud, deception, or subterfuge is guilty of a Class 4 felony.

22-42-9. Manufacture, distribution, or possession of equipment for making counterfeit controlled substance as felony

Updated: 
May 26, 2017

Any person who knowingly makes, distributes, or possesses any punch, die, plate, or other thing designed to print or reproduce the trademark, trade name, or other identifying mark of another on any drug, or container or label thereof so as to make such drug a counterfeit controlled drug or substance is guilty of a Class 5 felony.

22-42-10. Keeping place for use or sale of controlled substances as felony

Updated: 
May 26, 2017

Any person who keeps or maintains a place which is resorted to by persons using controlled drugs and substances for the purpose of using such substances, or which is used for the keeping or selling of such substances, is guilty of a Class 5 felony.

22-42-19. Drug free zones created--Violation as felony--Sentence--Defense

Updated: 
May 26, 2017

Any person who commits a violation of § 22-42-2, 22-42-3, or 22-42-4, or a felony violation of § 22-42-7, if such activity has taken place:

(1) In, on, or within one thousand feet of real property comprising a public or private elementary or secondary school or a playground; or

(2) In, on, or within five hundred feet of real property comprising a public or private youth center, public swimming pool, or video arcade facility; is guilty of a Class 4 felony. The sentence imposed for a conviction under this section carries a minimum sentence of imprisonment in the state penitentiary of five years. Any sentence imposed under this section shall be consecutive to any other sentence imposed for the principal felony. The court may not place on probation, suspend the execution of the sentence, or suspend the imposition of the sentence of any person convicted of a violation of this section. However, the sentencing court may impose a sentence other than that specified in this section if the court finds that mitigating circumstances exist which require a departure from the mandatory sentence provided for in this section. The court's finding of mitigating circumstances allowed by this section and the factual basis relied upon by the court shall be in writing.

It is not a defense to the provisions of this section that the defendant did not know the distance involved. It is not a defense to the provisions of this section that school was not in session.

Chapter 22-46. Abuse, Neglect, or Exploitation of Elders or Adults with Disabilities

Updated: 
May 26, 2017

22-46-1. Definition of terms

Updated: 
May 26, 2017

Terms used in this chapter mean:

(1) “Adult with a disability,” a person eighteen years of age or older who has a condition of intellectual disability, infirmities of aging as manifested by organic brain damage, advanced age, or other physical dysfunctioning to the extent that the person is unable to protect himself or herself or provide for his or her own care;

(2) “Caretaker,” a person or entity who is entrusted with the property of an elder or adult with a disability, or who is responsible for the health or welfare of an elder or adult with a disability, and who assumes the position of trust or responsibility voluntarily, by contract, by receipt of payment, or by order of the court;

(3) “Elder,” a person sixty-five years of age or older;

(4) “Emotional and psychological abuse,” a caretaker's willful, malicious, and repeated infliction of:

(a) A sexual act or the simulation of a sexual act directed at and without the consent of the elder or adult with a disability that involves nudity or is obscene;

(b) Unreasonable confinement;

(c) Harm or damage or destruction of the property of an elder or adult with a disability, including harm to or destruction of pets; or

(d) Ridiculing or demeaning conduct, derogatory remarks, verbal harassment, or threats to inflict physical or emotional and psychological abuse, directed at an elder or adult with a disability;

(5) “Exploitation,” the wrongful taking or exercising of control over property of an elder or adult with a disability with intent to defraud the elder or adult with a disability;

(6) “Neglect,” harm to the health or welfare of an elder or an adult with a disability, without reasonable medical justification, caused by a caretaker, within the means available for the elder or adult with a disability, including the failure to provide adequate food, clothing, shelter, or medical care; and

(7) “Physical abuse,” physical harm, bodily injury, attempt to cause physical harm or injury, or fear of imminent physical harm or bodily injury.

Title 25. Domestic Relations

Updated: 
May 26, 2017

Chapter 4. Divorce and Separate Maintenance

25-4-2. Grounds for divorce

Divorces may be granted for any of the following causes:
(1) Adultery;
(2) Extreme cruelty;
(3) Willful desertion;
(4) Willful neglect;
(5) Habitual intemperance;
(6) Conviction of felony;
(7) Irreconcilable differences.
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25-4-3. Adultery defined

Adultery is the voluntary sexual intercourse of a married person with one of the opposite sex to whom he or she is not married.
The effective date of this section is July 1, 1984.
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25-4-4. Extreme cruelty defined

Extreme cruelty is the infliction of grievous bodily injury or grievous mental suffering upon the other, by one party to the marriage.

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25-4-5. Willful desertion defined--Special conditions applicable

Willful desertion is the voluntary separation of one of the married parties from the other with intent to desert.
The special conditions or circumstances set forth in §§ 25-4-8 to 25-4-14, inclusive, shall also apply in establishing desertion under the provisions of this title.
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25-4-8. Refusal of intercourse as desertion--Refusal to live together

Persistent refusal to have reasonable matrimonial intercourse as husband and wife when health or physical condition does not make such refusal reasonably necessary, or the refusal of either party to dwell in the same house with the other party when there is no just cause for such refusal, is desertion.

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25-4-9. Desertion by departure during absence of spouse induced by fraud

When one party is induced by the stratagem or fraud of the other party to leave the family dwelling place or to be absent, and during such absence the offending party departs with intent to desert the other, it is desertion by the party committing the stratagem or fraud and not by the other.

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25-4-10. Desertion by cruelty or threats causing departure of spouse

Departure or absence of one party from the family dwelling place caused by cruelty or by threats of bodily harm from which danger would be reasonably apprehended from the other is not desertion by the absent party, but it is desertion by the other party.
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25-4-11. Separation by consent not desertion

Separation by consent with or without the understanding that one of the parties will apply for a divorce is not desertion.

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25-4-12. Intent to desert formed during proper absence

Absence or separation proper in itself becomes a desertion whenever the intent to desert is fixed during such absence or separation.

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25-4-13. Desertion by refusal of reconciliation after separation

Consent to a separation is a revocable act and if one of the parties afterwards in good faith seeks a reconciliation and restoration, but the other refuses it, such refusal is desertion.
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25-4-15. Willful neglect defined

Willful neglect is the neglect of a person to provide the common necessaries of life for his or her spouse, when having the ability to do so; or it is the failure to do so by reason of idleness, profligacy, or dissipation.

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25-4-16. Habitual intemperance defined

Habitual intemperance is that degree of intemperance from the use of intoxicating drinks which disqualifies the person a great portion of the time from properly attending to business, or which would reasonably inflict a course of great mental anguish upon the innocent party.

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25-4-17.1. Irreconcilable differences defined

Irreconcilable differences are those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved.
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25-4-17.2. Dissolution of marriage--Legal separation--Continuance--Orders during continuance--Consent of parties

If from the evidence at the hearing, the court finds that there are irreconcilable differences, which have caused the irremediable breakdown of the marriage, it shall order the dissolution of the marriage or a legal separation. If it appears that there is a reasonable possibility of reconciliation, the court shall continue the proceeding for a period not to exceed thirty days. During the period of the continuance, the court may enter any order for the support and maintenance of the parties, the custody, support, maintenance, and education of the minor children of the marriage, attorney fees, and for the preservation of the property of the parties. At any time after the termination of the thirty-day period, either party may move for the dissolution of the marriage or a legal separation, and the court may enter its judgment decreeing the dissolution or separation.

The court may not render a judgment decreeing the legal separation or divorce of the parties on the grounds of irreconcilable differences without the consent of both parties unless one party has not made a general appearance.

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25-4-30. Residence requirements for divorce or separate maintenance

The plaintiff in an action for divorce or separate maintenance must, at the time the action is commenced, be a resident of this state, or be stationed in this state while a member of the armed services. Subsequently, the plaintiff need not maintain that residence or military presence to be entitled to the entry of a decree or judgment of divorce or separate maintenance.

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Chapter 10. Protection From Domestic Abuse

Updated: 
May 26, 2017

25-10-1 Definitions

Updated: 
May 26, 2017

Terms used in this chapter mean:

(1) “Domestic abuse,” physical harm, bodily injury, or attempts to cause physical harm or bodily injury, or the infliction of fear of imminent physical harm or bodily injury when occurring between persons in a relationship described in § 25-10-3.1. Any violation of § 25-10-13 or chapter 22-19A or any crime of violence as defined in subdivision 22-1-2(9) constitutes domestic abuse if the underlying criminal act is committed between persons in such a relationship;

(2) “Protection order,” an order restraining any person in a relationship described in § 25-10-3.1 from committing any act of domestic abuse or an order excluding any person in a relationship described in § 25-10-3.1 from the dwelling or residence of another person in such a relationship, whether or not the dwelling or residence is shared. A protection order has a duration of five years or less; and

(3) “Temporary protection order,” an order restraining any person in a relationship described in § 25-10-3.1 from committing any act of domestic abuse or an order excluding any person in a relationship described in § 25-10-3.1 from the dwelling or residence of another person in such a relationship, whether or not the dwelling or residence is shared. A temporary protection order has a duration of thirty days except as provided in § 25-10-7.1.



25-10-2 Application for relief -- Filing -- Venue

Updated: 
May 26, 2017

An application for relief under this chapter may be filed in circuit court or in a magistrate court with a magistrate judge presiding. Venue lies where any party to the proceedings resides.


25-10-3 Petition for protection order -- Parties -- Allegations -- Affidavit -- Pending action -- Standard petition form

Updated: 
May 26, 2017

There exists an action known as a petition for a protection order in cases of domestic abuse. Procedures for the action are as follows:

(1) A petition under this section may be made by any person in a relationship described in § 25-10-3.1 against any other person in such a relationship;

(2) A petition shall allege the existence of domestic abuse and shall be accompanied by an affidavit made under oath stating the specific facts and circumstances of the domestic abuse; and

(3) A petition for relief may be made whether or not there is a pending lawsuit, complaint, petition, or other action between the parties. However, if there is any other lawsuit, complaint, petition, or other action pending between the parties, any new petition made pursuant to this section shall be made to the judge previously assigned to the pending lawsuit, petition, or other action, unless good cause is shown for the assignment of a different judge.

The clerk of the circuit court shall make available standard petition forms with instructions for completion to be used by a petitioner.

25-10-3.1. Persons entitled to apply for protection order

Updated: 
May 26, 2017

Any person who is involved in one of the following relationships with another party:
(1) Spouse or former spouse;
(2) Is in a significant romantic relationship or has been in one during the past twelve months with the abusing party;
(3) Has a child or is expecting a child with the abusing party;
(4) Parent and child, including a relationship by adoption, guardianship, or marriage; or
(5) Siblings, whether of the whole or half blood, including a relationship through adoption or marriage;
is entitled to apply for a protection order or a temporary protection order pursuant to the provisions of this chapter.

25-10-3.2. Factors for determining significant romantic relationship

Updated: 
May 26, 2017

For purposes of chapter 25-10, when determining whether a relationship is a significant romantic relationship, the court shall consider, among others, the following factors:

(1) The length of time of the relationship;

(2) The frequency of interaction between the parties;

(3) The characteristics and the type of the relationship.

25-10-4 Hearing -- Time -- Service on respondent

Updated: 
May 26, 2017

Upon receipt of the petition, if sufficient grounds are alleged for relief, the court shall order a hearing which shall be held not later than thirty days from the date of the order unless for good cause the court grants a continuance. Personal service of the petition, affidavit, and notice for hearing shall be made on the respondent not less than five days prior to the hearing.


25-10-5 Relief authorized on finding abuse -- Time limitation

Updated: 
May 26, 2017

Upon notice and a hearing, if the court finds by a preponderance of the evidence that domestic abuse has taken place, the court may provide relief as follows:

(1) Restrain any party from committing acts of domestic abuse;

(2) Exclude the abusing party from the dwelling which the parties share or from the residence of the petitioner;

(3) Award temporary custody or establish temporary visitation with regards to minor children of the parties;

(4) Establish temporary support for minor children of the parties or a spouse;

(5) Order that the abusing party obtain counseling;

(6) Order other relief as the court deems necessary for the protection of the person to whom relief is being granted, including orders or directives to a sheriff or constable.

Any relief granted by the order for protection shall be for a fixed period and may not exceed five years.

If any minor child resides with either party, the court shall order that the restrained person receive instruction on parenting approved or provided by the Department of Social Services as part of any relief granted.


25-10-5.1 Counseling required for domestic abuse defendant placed on probation

Updated: 
May 26, 2017

If a court places a defendant on probation upon receiving a verdict or plea of guilty for a crime involving domestic abuse, the court shall order that a condition of the defendant's probation is that he attend family violence counseling. Failure to attend family violence counseling is a violation of the defendant's probation.


25-10-5.2 Restrictions on issuance of mutual orders for protection against abuse

Updated: 
May 26, 2017

No court may, pursuant to the provisions of § 25-10-5, issue a mutual order enjoining both petitioner and respondent from committing acts of domestic abuse unless:

(1) Both the petitioner and the respondent personally appear;

(2) The respondent alleges, under oath, the existence of domestic abuse by stating the specific facts and circumstances of the domestic abuse;

(3) The court finds, by a preponderance of the evidence, that domestic abuse has taken place.


25-10-5.3 Court to require instruction in parenting as part of sentence in certain convictions -- Exception

Updated: 
May 26, 2017

If any person is convicted of a crime involving domestic abuse, and that person is the parent, guardian, or custodian of a minor child who resides with that person or the victim of the crime, the court shall include as part of the sentence, or conditions required as part of the suspended execution or imposition of such sentence, that the person receive instruction on parenting approved or provided by the Department of Social Services. However, this section does not apply to any person convicted and imprisoned for any felony for such a duration that there is no expectation of release for at least four years.


25-10-6. Ex parte temporary protection order

Updated: 
May 26, 2017

If an affidavit filed with an application under this chapter alleges that immediate and irreparable injury, loss, or damage will result before an adverse party or his or her attorney can be heard in opposition, the court may grant an ex parte temporary protection order pending a full hearing and granting relief as the court deems proper, including an order:

(1) Restraining any person in a relationship described in § 25-10-3.1 from committing acts of domestic abuse;

(2) Excluding any person in a relationship described in § 25-10-3.1 from the dwelling or the residence of the petitioner.

25-10-7 Limited duration of temporary order--Service on respondent

Updated: 
May 26, 2017

An ex parte temporary protection order is effective for a period of thirty days except as provided in § 25-10-7.1 unless for good cause the court grants a continuance. No continuance may exceed thirty days unless the court finds good cause for the additional continuance and:

(1) The parties stipulate to an additional continuance; or

(2) The court finds that law enforcement is unable to locate the respondent for purposes of service of the ex parte protection order.

If a continuance is granted, the court by order shall extend the ex parte temporary protection order until the rescheduled hearing date. The respondent shall be personally served without delay with a copy of the ex parte order along with a copy of the petition, affidavit, and notice of the date set for the hearing. The ex parte order shall be served without delay under the circumstances of the case including service of the ex parte order on a Sunday or holiday. The law enforcement agency serving the order shall notify the petitioner by telephone or written correspondence when the order is served if the petitioner has provided to the law enforcement agency either a telephone number or address, or both, where the petitioner may be contacted. The law enforcement agency and any officer of the law enforcement agency is immune from civil and criminal liability if the agency or the officer makes a good faith attempt to notify the petitioner in a manner consistent with the provisions of this section.

25-10-7.1 Temporary order effective until order under 25-10-5 served

Updated: 
May 26, 2017

If an ex parte temporary protection order is in effect and a judge issues a protection order pursuant to § 25-10-5, the ex parte temporary protection order remains effective until the order issued pursuant to § 25-10-5 is served on the respondent.


25-10-8 Security not required of petitioner -- Exception

Updated: 
May 26, 2017

The court may not require an undertaking or other security of any party to a petition for an order of protection other than in exceptional circumstances.


25-10-9 Departure of petitioner from household not waiving right to relief

Updated: 
May 26, 2017

A person's right to apply for relief under this chapter may not be affected by the departure of that person from the residence or household to avoid abuse.


25-10-10 Modification of order

Updated: 
May 26, 2017

Upon application, notice to all parties, and hearing, the court may modify the terms of an existing order for protection.


25-10-11 Real estate titles not affected

Updated: 
May 26, 2017

No order issued pursuant to this chapter may affect title to real estate.


25-10-12 Delivery of order to law enforcement agencies

Updated: 
May 26, 2017

The petitioner may deliver an order for protection granted pursuant to this chapter within twenty-four hours to the local law enforcement agency having jurisdiction over the residence of the petitioner. Each appropriate law enforcement agency shall make available to other law enforcement officers information as to the existence and status of any order for protection issued pursuant to this chapter.


25-10-12.1 Enforcement of foreign protective orders -- Requirements

Updated: 
May 26, 2017

Any domestic abuse protection order, or any stalking or physical violence protection order, issued by a court of competent jurisdiction of another state, Indian tribe, the District of Columbia, or a commonwealth, territory, or possession of the United States is enforceable as if the order was issued by a court in this state if all of the following requirements are satisfied:

(1) The respondent received notice of the order in compliance with requirements of the issuing jurisdiction;

(2) The order is in effect in the issuing jurisdiction;

(3) The issuing court had jurisdiction over the parties and the subject matter;

(4) The respondent is or has been afforded reasonable notice and opportunity to be heard sufficient to protect that person's right to due process in the issuing jurisdiction. In the case of ex parte orders, notice and opportunity to be heard is or has been provided within the time required by the law of the issuing jurisdiction; and, in any event, within a reasonable time after the order was issued, sufficient to protect the respondent's due process rights;

(5) If the order also provides protection for the respondent, a petition, application, or other written pleading was filed with the issuing court seeking such an order and the issuing court made specific findings that the respondent was entitled to the order; and

(6) The prohibited conduct violative of the foreign protection order could be prohibited by a protection order if issued in this state.

Any protection order meeting the requirements of this section is a foreign domestic abuse protection order or a foreign stalking or physical violence protection order.

25-10-12.2 Filing of foreign violence protection order -- Affidavit -- Entry in database -- Fee

Updated: 
May 26, 2017

Any person entitled to protection under a foreign domestic violence protection order may file the foreign order in the office of any clerk of a circuit court in this state. The person filing the foreign order shall also file with the clerk of a circuit court an affidavit certifying the validity and status of the order and attesting to the person's belief that the order has not been amended, rescinded, or superseded by any orders from a court of competent jurisdiction. If a foreign order is filed under this section, the clerk of a circuit court shall enter the order in the law enforcement protection order database. Filing of a foreign order under this section is not a prerequisite to the order's enforcement in this state. No fee may be assessed for filing the foreign order.

25-10-12.3 Reliance on foreign order -- Immunity from liability

Updated: 
May 26, 2017

A law enforcement officer may rely upon any foreign domestic violence protection order that has been provided to the officer by any source. The officer may make an arrest pursuant to § 25-10-13 for any violation of the foreign order in the same manner as for violation of a protection order issued in this state. A law enforcement officer may rely on the statement of the person protected by the foreign order that the order is in effect and that the respondent was personally served with a copy of the order. A law enforcement officer acting in good faith and without malice in enforcing a foreign order under this section is immune from civil or criminal liability for any action arising in connection with the enforcement of the foreign domestic violence protection order.

25-10-12.4 Presentment of false order or denial of service a misdemeanor

Updated: 
May 26, 2017

Any person who intentionally provides a law enforcement officer with a copy of a foreign domestic violence protection order known by that person to be false, invalid, or not in compliance with the requirements of § 25-10-12.1, or who, if served with such a protection order, denies having been served with the protection order, is guilty of a Class 1 misdemeanor.

25-10-12.5 Affirmative defense

Updated: 
May 26, 2017

Failure to satisfy any of the requirements of § 25-10-12.1 is an affirmative defense to any prosecution for a violation of the foreign domestic violence protection order or any process filed seeking enforcement of the order in this state.

25-10-13 Violation of order as misdemeanor or felony

Updated: 
May 26, 2017

If a temporary protection order or a protection order is granted pursuant to this chapter or a foreign protection order recognized pursuant to § 25-10-25 or 25-10-12.1, or if a no contact order is issued pursuant to § 25-10-23 or 25-10-25, and the respondent or person to be restrained knows of the order, the violation of the order is a Class 1 misdemeanor. If any violation of this section constitutes a violation of § 22-18-1, 22-18-1.1, or 22-19A-1, the violation is a Class 6 felony. If a respondent or person to be restrained has been convicted of, or entered a plea of guilty to, two or more violations of this section or § 22-19A-16, the factual basis for which occurred after the date of the second conviction, and occurred within ten years of committing the current offense, the respondent or person to be restrained is guilty of a Class 6 felony for any third or subsequent offense. Any proceeding under this chapter is in addition to other civil or criminal remedies.

25-10-14 Citation of chapter

Updated: 
May 26, 2017

This chapter may be cited as the Protection from Domestic Abuse Act.


25-10-22 Effect of divorce or other civil proceedings prior to criminal proceedings

Updated: 
May 26, 2017

In any action involving domestic abuse, the court may not:

(1) Dismiss any charge or delay disposition of the domestic abuse action because of the pendency of a divorce or any other civil proceeding, unless agreed to by all parties, including the victim;

(2) Require proof that either party is seeking dissolution of marriage prior to instigation of criminal proceeding.


25-10-23 Conditional bond -- Violation as misdemeanor

Updated: 
May 26, 2017

If bond for the defendant in any domestic abuse action is authorized, a condition of no contact with the victim shall be stated and incorporated into the terms of the bond. Willful violation of any such no contact provision is a Class 1 misdemeanor.


25-10-24. Surrender of weapon by defendant

Updated: 
May 26, 2017

The court may require the defendant to surrender any dangerous weapon or any concealed pistol permit issued under 23-7 in the defendant's possession to local law enforcement.

25-10-25 Convicted defendant prohibited from contacting victim

Updated: 
May 26, 2017

The court may order that any defendant convicted of a crime involving domestic abuse be prohibited from contact with the victim and the sheriff shall give the victim a copy of any such order.


25-10-34 Domestic abuse charge to be indicated on warrant or summons

Updated: 
May 26, 2017

The state's attorney of the county where a crime is believed to have been committed shall indicate on the summons, complaint, information, indictment, arrest warrant, and judgment of conviction whether the charge involves domestic abuse.

25-10-35 Arrest of spouse for abuse -- Considerations

Updated: 
May 26, 2017

If the officer has probable cause to believe that persons in a relationship as defined in § 25-10-3.1 have assaulted each other, the officer is not required to arrest both persons. The officer shall arrest the person whom the officer believes to be the predominant physical aggressor. In making this determination, the officer shall make every reasonable effort to consider:

(1) The intent to protect victims of domestic abuse under this chapter;

(2) The comparative extent of injuries inflicted or serious threats creating fear of physical injury; and

(3) The history of domestic abuse between the persons involved.

25-10-36 Arrest of criminal suspect when responding to domestic abuse call

Updated: 
May 26, 2017

If any law enforcement officer who is responding to a domestic abuse call has probable cause to believe that a crime has been committed, the law enforcement officer shall arrest the person who is suspected of committing the crime and make a complete report of any action taken. The officer shall indicate on the arrest report and the fingerprint document if the arrest is for a crime against a person in a relationship described in § 25-10-3.1.


25-10-37. Domestic abuse record keeping

Updated: 
May 26, 2017

The information required by 25-10-34 and 25-10-36 shall be compiled, maintained, and reported in accordance with chapter 23-6.

25-10-38 Report of domestic abuse arrest forwarded to prosecutor -- Victim to be notified of status of case

Updated: 
May 26, 2017

Any report made pursuant to § 25-10-36 shall be forwarded to the appropriate prosecutor within ten days of making the report. The prosecutor shall, within five days of receipt of the report, notify the victim either orally or in writing of the status of the case. If the state's attorney decides not to prosecute, the prosecutor shall inform the victim of the reasons.


25-10-39 Records of domestic abuse -- Disclosure of victim's location during pendency of action

Updated: 
May 26, 2017

Each law enforcement agency shall maintain records for at least five years of all reported incidents of domestic abuse. However, during the pendency of any action instituted pursuant to § 25-10-36, records which identify the location of a victim may not be disclosed to a defendant without a court order, except to defendant's attorney.


25-10-40 Restrictions on release of person charged with domestic abuse

Updated: 
May 26, 2017

No police officer or sheriff may release a person charged with assaulting a person in a relationship described in § 25-10-3.1, or violating a protection order, as provided for in this chapter, without providing notice to a committing magistrate judge or circuit court. A committing magistrate judge or circuit court shall determine if bond or other conditions of release are necessary for the protection of the alleged victim.


25-10-41 Conditions of release of person charged with domestic abuse

Updated: 
May 26, 2017

In determining the conditions of release under § 25-10-40, the court shall consider the following conditions and may impose any condition it considers reasonably necessary to protect the alleged victim of domestic abuse, including ordering the defendant:

(1) Not to subject the victim to further domestic abuse;

(2) To vacate the home of the victim;

(3) Not to contact the victim other than through counsel;

(4) To engage in counseling;

(5) To refrain from the consumption of alcohol or the use of drugs;

(6) To post bond pursuant to § 25-10-23.

As used in this section, the term, domestic abuse, means a violation of § 22-18-1 or 22-18-1.1 if the victim is a person in a relationship described in § 25-10-3.1.


25-10-42 Convicted child abuser or sex offender barred from adopting child

Updated: 
May 26, 2017

No child may be placed for adoption with an individual who has been convicted of child abuse pursuant to chapter 26-10 or a sex offense pursuant to chapter 22-22.