(4)9 Special Considerations

(4)9 Special Considerations

This chapter provides statutes relating to special considerations not generally covered by statutes elsewhere in Title 4.

(4)9.1 Enhancement and Modifiers

This section provides provisions for charge enhancements and modifications.

(4)9.1.1 Domestic Violence

(a) A crime shall be classified as “Domestic Violence” (DV) when the defendant and the alleged victim share a familial, household, intimate, or spousal relationship, including former spouses, intimate partners, domestic partners, co-parents, or individuals who have resided together.

(b) Any law enforcement officer who finds probable cause of a crime of domestic violence, whether felony or misdemeanor, shall effect an arrest upon the primary aggressor.

(c) Where the court finds reasonable grounds to believe that the victim or a material witness faces a credible risk of retaliation, intimidation, or serious harm, the court may order the defendant held without bail or subject to no-contact conditions pending a judicial review. Such findings must be supported by testimony, sworn statements, or reliable evidence.

(d) Upon arrest for any crime designated as Domestic Violence, a temporary no-contact order shall be issued prohibiting the defendant from having direct or indirect contact with the alleged victim until the defendant’s first court appearance.

(e) At the defendant’s first appearance, the court shall issue, modify, or rescind a no-contact order based on the safety of the alleged victim, the relationship between the parties, and the likelihood of further violence or intimidation.

(4)9.1.2 Attempted Misconduct

(a) A person commits a crime of attempt when, acting with the intent required for the commission of an offense defined under this code, the person engages in conduct constituting a substantial step toward the commission of that offense.

(b) An attempt charged under this subsection shall be prosecuted and punished by reference to the underlying offense, notwithstanding that the completed offense is not consummated.

(c) For purposes of charging, pleading, and adjudication, an offense prosecuted under this subsection may be described as an “attempted” violation of the underlying offense; however, no offense of attempt exists except as authorized by this subsection.

(c) A “substantial step” is conduct that strongly corroborates the actor’s intent to complete the offense, and constitutes more than mere preparation.

(d) Attempted Misconduct shall be punished as follows:

• Class A+ Felony offenses shall be punished as a Class A- Felony.
• Class A Felony offenses shall be punished as a Class B+ Felony.
• Class A- Felony offenses shall be punished as a Class B- Felony.

• Class B+ Felony offenses shall be punished as a Class C+ Felony.
• Class B Felony offenses shall be punished as a Class C Felony.
• Class B- Felony offenses shall be punished as a Class C- Felony.

• Class C+ Felony offenses shall be punished as a Class D+ Felony.
• Class C Felony offenses shall be punished as a Class D Felony.
• Class C- Felony offenses shall be punished as a Class D- Felony.

• Class D+ Felony offenses shall be punished as a Class D- Felony.
• Class D Felony offenses shall be punished as a Gross Misdemeanor.
• Class D- Felony offenses shall be punished as a Gross Misdemeanor.

• Gross Misdemeanor offenses shall be punished as a Misdemeanor.
• Misdemeanor offenses shall be punished as a Misdemeanor.

(4)9.1.3 Hate-Motivated Misconduct

(a) A crime shall be designated as Hate-Motivated Misconduct when the court finds, by a preponderance of the evidence, that the defendant intentionally selected the victim, target, or property in whole or in substantial part because of a protected characteristic as defined in Section (1)2.1 of this code.

(b) Evidence of hate motivation may include, but is not limited to:

Statements, symbols, or gestures made by the defendant before, during, or after the offense;

Prior conduct demonstrating bias toward the protected characteristic;

The nature or circumstances of the offense indicating intentional targeting.

(c) Hate-Motivated Misconduct shall not apply where the protected characteristic is incidental, speculative, or unrelated to the defendant’s intent in committing the offense.

(d) Designation under this subsection shall operate solely as a sentencing enhancement or modifier and shall not create a separate offense.

(e) Nothing in this subsection shall be construed to penalize lawful speech, expression, or association protected under the Constitution.

(4)9.1.4 Prolific Violent Offender

(a) A defendant may be designated a Prolific Violent Offender where the court finds that the defendant has demonstrated a persistent pattern of violent criminal conduct posing a substantial risk to public safety.

(b) In making such determination, the court may consider:

Prior convictions for violent offenses;

The frequency, severity, and similarity of past offenses;

Failure to comply with prior conditions of release, supervision, or sentencing;

Credible evidence of ongoing violent behavior.

(c) A designation under this subsection shall require specific written findings and shall be subject to judicial review.

(d) Prolific Violent Offender designation may justify:

• Enhanced sentencing within statutory limits;

• Restrictive conditions of release or supervision;

• Denial of discretionary alternatives otherwise available under this code.

(e) This subsection shall not mandate enhanced punishment solely on the basis of criminal history absent individualized findings of current dangerousness.

(4)9.1.5 Criminal Organization

(a) A crime may be designated as involving a Criminal Organization as defined under Title 6 where the defendant knowingly commits an offense for the benefit of, at the direction of, or in association with an organized group engaged in ongoing criminal activity.

(c) Mere association, membership, ideology, or presence shall not, by itself, establish criminal organization involvement.

(c) Where this designation applies, the court may impose enhanced penalties or conditions proportionate to:

• The defendant’s role within the organization;
• The degree of planning or coordination involved; and
• The scope and impact of the organization’s criminal activity.

(e) This subsection shall operate as a sentencing enhancement or modifier only, and shall not create liability absent proof of the underlying offense.