(2)2.2 Orders & Qualifications

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(2)2.2 Orders and Qualifications

This section provides statutes related to judiciary orders and the qualifications that shall be met for issuance.

(2)2.2.1 Warrants

A court of competent jurisdiction shall only order the issuance of a warrant if the following qualifications of this statute are satisfied.

(a) Bench Warrant:

  1. Probable cause exists to believe that a criminal offense has been committed; and
  2. Probable cause exists to believe that the person named in the warrant committed the offense; and
  3. The warrant is supported by oath or affirmation, including a sworn statement or affidavit; and
  4. The warrant particularly describes the person to be arrested; and
  5. The warrant is issued by a court of competent jurisdiction.

(b) Search Warrant:

  1. Probable cause exists to believe that a criminal offense has been committed; and
  2. Probable cause exists to believe that evidence, contraband, fruits of a crime, or instrumentalities of a crime will be found in the place to be searched; and
  3. The warrant is supported by oath or affirmation, including a sworn statement or affidavit, setting forth facts sufficient to establish probable cause; and
  4. The warrant particularly describes the place to be searched and the items or persons to be seized; and
  5. The warrant is issued by a court of competent jurisdiction.

(2)2.2.2 Subpoenas

A court of competent jurisdiction shall only order the issuance of a warrant if the following qualifications of this statute are satisfied.

(a) Subpoena for Testimony:

  1. The testimony sought is relevant and material to an official proceeding; and
  2. The person named in the subpoena is reasonably believed to possess information pertinent to the proceeding; and
  3. The subpoena clearly identifies the person required to appear and testify; and
  4. The subpoena specifies the time, date, and place at which testimony is required; and
  5. The subpoena is issued by a court of competent jurisdiction.

(b) Subpoena for Discovery:

  1. The items, records, or information sought are relevant and material to an official proceeding; and
  2. The person or entity named in the subpoena is reasonably believed to possess or control the items sought; and
  3. The subpoena particularly describes the items, records, or information to be produced; and
  4. The subpoena specifies a reasonable time, date, and manner for production; and
  5. The subpoena is issued by a court of competent jurisdiction.

(2)2.2.3 Order of Protection

A court of competent jurisdiction shall only order the issuance of an Order of Protection if the following qualifications of this statute are satisfied.

(a) Application by Protected Person:

  1. The order is requested by the alleged victim or protected person, or by a lawful guardian acting on their behalf; and
  2. The applicant affirms under oath or affirmation the factual basis for the requested protection.

(b) Judicial Findings:

  1. The court finds reasonable grounds to believe that the respondent has engaged in conduct that constitutes harassment, stalking, threats, violence, or other unlawful or coercive conduct toward the applicant; and
  2. The court finds that the order is necessary to prevent further harm or intimidation.

(c) Scope and Particularity:

  1. The order clearly identifies the protected person and the respondent; and
  2. The order particularly describes the prohibited conduct, restrictions, or required conditions imposed upon the respondent; and
  3. Any geographic, contact, or proximity restrictions are narrowly tailored to the circumstances.

(d) Duration and Maintenance:

  1. The order is issued for a defined duration; and
  2. The order shall remain in effect only so long as the protected person affirmatively maintains the order through the court as required by statute or court rule.

(e) Issuance by Court:

The order is issued by a court of competent jurisdiction.

(2)2.2.4 Order of No Contact

A court of competent jurisdiction shall only order the issuance of an Order of Protection if the following qualifications of this statute are satisfied.

(a) State Initiation:

  1. The order is issued upon motion of the court or the prosecuting authority; and
  2. The order is not contingent upon application, consent, or maintenance by any private party.

(b) Eligible Circumstances:

  1. The respondent is charged as a defendant in a criminal proceeding; and
  2. The order is reasonably necessary to:
  3. Prevent intimidation, harassment, or retaliation against a victim or witness; or
  4. Preserve the integrity of judicial proceedings; or
  5. Prevent collusion, coordination, or obstruction between co-defendants.

(c) Judicial Findings:

  1. The court finds reasonable grounds to believe that contact between the respondent and the protected person or co-defendant would pose a risk to safety, fairness of proceedings, or administration of justice; and
  2. The order is necessary and proportionate to the circumstances.

(d) Scope and Particularity:

  1. The order clearly identifies the respondent and the protected person or persons; and
  2. The order particularly describes the prohibited contact or communication; and
  3. Any geographic or proximity restrictions are narrowly tailored.

(e) Duration:

The order remains in effect only for the pendency of the underlying criminal proceeding, unless modified or terminated by the court.

(f) Issuance by Court:

The order is issued by a court of competent jurisdiction.

(2)2.2.5 Order to Appear

A court of competent jurisdiction may issue an Order to Appear in lieu of a warrant when authorized by this section.

(a) Purpose:

To compel a person to appear before the court at a specified time and place; and To initiate or continue judicial proceedings without immediate arrest.

(b) Qualifications:

The court has jurisdiction over the person or proceeding; and The person is reasonably believed to be capable of appearing as ordered; and Issuance of a warrant is not necessary to ensure appearance or public safety.

(c) Contents:

The order clearly identifies the person required to appear; and The order specifies the time, date, and place of appearance; and The order states the legal authority and proceeding for which appearance is required.

(d) Service and Notice:

The person shall receive actual notice of the order, which may be accomplished by personal service, electronic service where authorized, or service through counsel of record.

(e) Failure to Appear:

Willful failure to comply with an Order to Appear may result in issuance of a bench warrant, contempt proceedings, or prosecution under Title 6 where expressly authorized by statute.

(f) Issuance by Court:

The order is issued by a court of competent jurisdiction.

(2)2.2.6 Contempt

A court of competent jurisdiction may hold a person in contempt only in accordance with the provisions of this subsection.

(a) Civil Contempt: A person is in civil contempt if he or she willfully fails or refuses to comply with a lawful order of the court, and the purpose of the sanction is to compel compliance.

  1. The court shall find that the order was clear, lawful, and within the court’s authority; and
  2. The person had actual notice of the order and a present ability to comply; and
  3. The contempt sanction is coercive in nature and shall terminate upon compliance.

(b) Criminal Contempt: A person is in criminal contempt if he or she willfully disobeys, obstructs, or openly defies a lawful order of the court, and the purpose of the sanction is punitive.

  1. The court shall find that the order was clear, lawful, and within the court’s authority; and
  2. The person had actual notice of the order; and
  3. The contemptuous conduct was willful; and
  4. The sanction imposed is proportionate to the conduct.

(c) Direct and Indirect Contempt:

Direct contempt occurs in the presence of the court and may be addressed summarily to maintain order and authority; and Indirect contempt occurs outside the presence of the court and shall be adjudicated with notice and an opportunity to be heard.

(d) Limitations:

  1. Contempt shall not be used as a substitute for prosecution of a criminal offense; and
  2. No person shall be held in contempt for failure to comply with an order that is vague, unlawful, or impossible to perform; and
  3. Civil contempt shall not be imposed for a punitive purpose.

(e) Sanctions and Limits:

  1. A sentence of incarceration for criminal contempt shall not exceed 90 days for any single act of contempt; and
  2. A sentence of incarceration for direct contempt imposed summarily shall not exceed 5 days; and
  3. Incarceration for civil contempt shall continue only so long as the contemnor has the present ability to comply and shall terminate immediately upon compliance.

(f) Review and Termination:

  1. Any incarceration for civil contempt shall be subject to judicial review at reasonable intervals not to exceed 30 days; and
  2. Civil contempt shall be terminated if the court finds that compliance has become impossible.

(g) Issuance by Court:

A finding of contempt shall be made only by a court of competent jurisdiction.

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