The Mn Criminal Defense, Personal Injury & Family Law Blog
Breaking Down a Minnesota Domestic Violence Charge in Brainerd, MN
July 15, 2021
Domestic assault in Minnesota is such a serious offense because the unique type of violence causes prolonged psychological trauma. Being unjustly charged with domestic violence or domestic assault can also cause trauma. In order to defend yourself, breaking down a Minnesota domestic violence charge can help you understand what to expect.
Domestic Violence Arrest Policy in Minnesota
In terms of arrest policy, Minnesota does not have a statewide mandatory arrest policy in domestic violence situations. Minn. Stat. Ann. Section 629.341 says a peace officer “may arrest [as opposed to shall arrest] a person anywhere without a warrant, including at the person’s residence, if the peace officer has probable cause to believe that within the preceding 24 hours the person has committed domestic abuse.” Individual department policies in counties and municipalities vary.
The news is not all bad. A number of defenses are available in these situations. Many of these defenses are procedural defenses, or legal technicalities. People can often fix some of their mistakes, but police procedure error isn’t one of these things. So, a Brainerd domestic assault lawyer in Minnesota might be able to get the case thrown out of court in these situations. Other defenses, such as a lack of evidence, are available as well.
Defining Domestic Assault in Minnesota
Minnesota law identifies family/household members in various ways. Some of these categories are straightforward and others are rather complex. Breaking down a Minnesota domestic violence charge, the major ones are:
Spouses, former spouses, parents, and children,
Individuals related by blood,
Individuals who currently live together or have cohabitated in the past,
Any couple, whether or not they are cohabitating, that has a child in common regardless of their relationship background, and
Two people who are significantly involved in a sexual relationship.
That last bullet point might be the most intricate one. A one-night stand probably does not constitute a significant sexual relationship. The living together category is equally subjective. A few weeks, or even a few months, might not be “living together” for domestic violence purposes. A Brainerd domestic assault lawyer can use arguments like these to reduce DV assault charges to standard assault charges.
Spouse on Spouse Violence in Minnesota
All this being said, the vast majority of domestic assault cases in Minnesota are spouse-on-spouse violence. In ye olden days, these alleged victims could assert an evidentiary privilege and refuse to testify against their spouses.
Those days are gone. Now, an alleged victim is basically a witness. As such, an alleged victim cannot “drop” a criminal assault case. Only the state has this power. In fact, prosecutors could subpoena alleged victims and force them to testify against their will. But these instances are rare, except in extreme cases.
Qualified DV Offenses in Minnesota
Breaking down a Minnesota domestic violence charge, the protected classes above are only part of the puzzle. Not every assault crime in Minnesota qualifies as domestic violence. For example, ABC (Assault By Contact) cannot be a domestic violence crime, regardless of the actors’ identities. The laws of Minnesota consider the following infractions to be domestic violence offenses:
Violating an OFP (Order for Protection) related to a previous domestic violence incident,
Violating an NCO (No Contact Order) which was issued under similar circumstances,
A violent crime, including murder, assault, criminal sexual misconduct, or malicious child punishment, of a person in one of the aforementioned protected classes,
Making terroristic threats (threatening an entire group of people, like a family),
Harassing behavior, violating a harassment restraining order, or stalking, and
Interfering with an emergency call (g. unplugging the phone so an alleged victim cannot call 9-1-1).
Domestic Violence in Family Court
A “DV” addition has significant collateral consequences, particularly in family court. Even if the offense involved a different family, a conviction could effectively prevent a person from obtaining favorable custody and visitation orders. A Brainerd domestic assault lawyer can advocate for individuals in these situations, whether they want to enforce a prior conviction or prevent one from being enforced.
Domestic Assault Penalties in Minnesota
Since domestic violence in any form is a serious crime, there are naturally some immediate effects as well. A person convicted for domestic assault may have to face consequences beyond the typical penalties of an assault. Breaking down a Minnesota domestic violence charge, they are as follows:
Misdemeanor or Felony Charges in MN
When a domestic assault is considered a misdemeanor, penalties may include up to 90 days in jail and/or a fine of up to $1,000. In case of a felony, domestic assault may include one to three years in prison and/or fines of up to $5,000.
These maximum penalties usually apply to first-time offenders. If the offender has one previous domestic violence-related conviction within the last 10 years, which is basically any offense in the list above which involves a person in a protected class, s/he may be charged with a gross misdemeanor. Furthermore, if the offender has two previous convictions within the last 10 years of a third offense, s/he may be charged with a felony.
For a second-time offense, the maximum misdemeanor penalty increases to one year in jail and/or fines of up to $3,000. The third and subsequent offenses are always felonies. Possible punishment includes a prison term of up to five years and/or fines up to $10,000.
Additionally, any type of domestic or non-domestic assault is a crime of moral turpitude. CMT convictions have significant future employment consequences. Many insurance companies refuse to cover people in positions of trust who have any such crimes on their records. Moreover, a CMT could lead to deportation or other adverse immigration proceedings.
Protective Orders Resulting from Domestic Assault in MN
Protection orders are also associated with penalties of domestic assault. Violating them may result in additional penalties. An individual can request a protection order or no-contact order at any point in time. However, most Crow Wing County judges automatically issue these orders upon a domestic assault arrest or conviction.
These initial ex parte orders, which a judge could also issue based solely on an alleged victim’s affidavit, are good for up to fourteen days. Then, after a full hearing, the court decides if a permanent order is required depending on the severity of the case details. If granted, these orders may be valid for up to two years and can be renewed thereafter. Breaking down a Minnesota domestic violence charge, common prohibitions and requirements in protective orders often include:
Committing domestic abuse against a family member, the alleged victim, or the alleged victim’s pets,
Being in or near the alleged victim’s house, workplace, and common surrounding areas,
Contacting the alleged victim, either directly or through a third party,
Paying child and/or spousal support,
Surrendering child custody and visitation rights,
Giving up custody of shared pets,
Providing health insurance for the alleged victim and/or a family member,
Paying restitution, and
Attending marriage counseling or receiving mental health treatment.
A few additional words about a kick-out order, or an exclusion from a shared residence. In most cases, this relief is unavailable in an ex parte order. However, upon hearing, a judge may order a defendant to vacate a shared residence, even if the defendant is financially responsible for the rent or mortgage.
Contrary to popular myth, a protective order is not just a piece of paper. Law enforcement agencies which are slow to respond to domestic violence calls often respond immediately if the offense is a violation of a court order.
The violation of a protection order is considered a misdemeanor. The penalties for this offense may include a jail term of up to 90 days and fines of up to $1000. Bonds may also be imposed at $10,000 upon the defendant’s arrest. The severity of penalties may increase if the accused violates the protection order within 10 years of being convicted for domestic violence.
If there is a parallel proceeding in family court, some judges hesitate to issue protective orders. There are no statistics on how many alleged victims lie in these proceedings to receive an edge in family court. But these things do happen. If a criminal judge refuses to issue a protective order, the judge presiding over the family law proceeding probably will. A civil protective order is basically the same as a criminal protective order.
Gun Ownership Rights in Minnesota
According to the laws of Minnesota, the person who has been convicted for domestic violence may lose the right to have a gun. If the defendant used a deadly weapon during the domestic assault, the defendant must forfeit that knife, gun, or other object. There are no ifs, ands, or buts.
If the defendant owns any deadly weapon, the judge could take it away, if the circumstances warrant such a move. These take-away orders also eliminate the defendant’s ability to keep and/or bear arms, at least temporarily.
Furthermore, acquiring a gun after losing the right to own one will result in severe penalties that include a jail term of up to one year and fines of up to $3,000.
How a Brainerd Domestic Assault Lawyer Can Help
A domestic assault charge can negatively impact the offender’s professional life, personal reputation, finances, and living conditions. It is best to get help from a domestic assault lawyer to fight these charges. Your lawyer’s main focus is breaking down a Minnesota domestic violence charge. You do not have to simply take your licks, and you don’t have to accept the prosecutor’s first settlement offer.
Analyze the Domestic Violence Charges in MN
Prosecutors are very aggressive in these situations. If the facts could possibly support a domestic violence enhancement, one is almost certainly forthcoming.
However, as outlined above, there are many moving parts in a domestic assault case. An assault which happens in a private residence is not automatically a domestic assault, even if the defendant and alleged victim know each other. There are also a number of possible procedural defenses. We’ll look at them next.
Even if prosecutors wrongfully applied the DV label, it’s not always a good idea to fight this designation. Frequently, in domestic violence court, there is an emphasis on treatment as opposed to punishment. In regular criminal court, the opposite is usually true. So, if the defendant has PTSD or another issue, domestic violence court might be the place to be, even if the case might belong somewhere else.
Nevertheless, since DV assault has some significant additional consequences, like protective orders, Brainerd domestic assault lawyers usually file motions to transfer these cases if at all possible.
Procedural Errors as a Defense in MN
Did you notice that peace officers may arrest domestic assault defendants even without a warrant and even if they didn’t witness the offense? This procedural shortcut is usually unavailable in other cases. As a result, some officers erroneously assume that other procedural shortcuts apply as well. That’s not true.
Failure to properly Mirandize the defendant is a good example. Most people are at least somewhat familiar with the Miranda rights (such as “you have the right to remain silent”). However, most people do not know how early the obligation to Mirandize the defendant kicks in.
Miranda Warnings in Minnesota
Legally, peace officers must administer the Miranda warnings before custodial interrogation begins. Let’s look at these two words in detail.
In this context, “custody” does not mean being placed in handcuffs or a holding cell. Instead, custody usually begins when defendants don’t feel free to leave. Most people don’t feel free to leave as soon as officers knock on their front doors or approach their vehicles. Some people don’t feel free to leave when they see a police car nearby.
Somewhat similarly, “interrogation” is not limited to asking questions about the alleged assault. In fact, it’s not even limited to asking questions. Skilled investigators know how to use very subtle means and extract damaging information from defendants.
That’s why it’s usually important to not say anything and call a Brainerd domestic assault lawyer immediately. If you do these things, officers will almost certainly arrest you. But an arrest was probably inevitable at this point anyway.
Self Defense Against Domestic Violence in MN
This defense is an affirmative defense. Defendants must admit that they assaulted the alleged victim, but that the assault was legally justified. In this case, the justification is the defense of self, the defense of others, or in some cases, the defense of property.
These defenses usually hinge on principles like proportionality of response and reasonable belief of a threat. Once again, let’s break these concepts down.
Proportionality essentially means that the defendant may only use the amount of force necessary to fend off an assault. In other words, if someone pulls a knife, you cannot pull a gun, at least in most cases.
Size matters. If Jason Momoa charged at me with a stick, I might reasonably believe that I need a gun to stop him. In fact, I might reasonably believe that I need a death ray to stop him.
The threat must always be physical. Words, no matter how hurtful or threatening they are, hardly ever justify a violent response, at least in the domestic assault context.
Reasonable belief basically means that the defendant feels threatened. Let’s go back to the me vs. Jason example and switch things around. If I waved a stick at Jason, he probably would not feel threatened. In fact, if I leveled a death ray at him, he might not feel threatened. If there is no credible threat, the self defense doctrine usually does not apply.
Plea Bargain Agreement in Minnesota
Even if there is no defense, prosecutors are usually willing to offer a plea bargain. It’s just that this offer is usually better if a defense could apply. Usually, a plea bargain means a reduced sentence and/or reduced charges. For example, if there are some police procedure questions, prosecutors might reduce felony aggravated assault to simple misdemeanor assault.
We touched on the difference between punishment and treatment above. If the defendant has a substance abuse problem or other issue, treatment for that problem probably produces a better outcome than a few weeks stewing in jail.
It is important to understand that every case is different as they involve several different details. Though a domestic assault lawyer will offer the best representation possible and try to get the charges dropped, the final outcome depends on the severity of the case and the evidence presented to the jury. Based on these aspects, your lawyer will try his/her best for the best result, including a reduced penalty and fines.
Consult a Minnesota Domestic Violence Lawyer at Carlson & Jones
It is necessary that you protect your rights if you have been charged with domestic violence. if you’re interested in breaking down a Minnesota domestic violence charge, seeking legal help can minimize penalties to a great extent. The experienced Brainerd domestic violence lawyers at Carlson & Jones P.A. will plan and present your case facts in the most favorable manner to obtain positive results. Contact us today for a free consultation.