The Mn Criminal Defense, Personal Injury & Family Law Blog
Do Hutchinson Criminal Lawyers Defend Protective Order Claims?
March 5, 2019
Domestic violence is still a serious problem in Minnesota. So, alleged victims have a number of legal options, if they feel like they need protection. Moreover, there is a strong presumption that the alleged victim has suffered abuse and needs protection. That’s especially true with regard to temporary ex parte protective orders. In these proceedings, the judge only hears the alleged victim’s side of the story. Indeed, many defendants do not know anything about atemporaryr protective order until they receive formal notice.
But a full Order of Protection is much different. Before a McLeod County judge extends the temporary OFP, the judge hears from both sides. In other words, an assertive Hutchinson criminal lawyer has a chance to advocate for you. In our system, this kind of aggressive advocacy is the way the truth comes out. Without help from a Hutchinson criminal defense attorney, the defendant is at the mercy of the court. That’s a bad position to be in.
The stakes are also much higher in full OFP proceedings. For one thing, the judge can extend the protective order for up to two years. Moreover, full OFPS are usually much broader than temporary orders. Full OFPs routinely order defendants to surrender firearms, attend burdensome classes, and pay financial support. Additionally, a full OFP goes on your record forever. Future family law disputes are much harder to resolve favorably with that kind of stain on your background.
Hutchinson Criminal Lawyers, OFPs, and Procedural Issues
At the hearing, the state has the burden of proof as to both aforementioned protective order elements. Lack of evidence on either or both could cause the judge to throw out the extension request and allow the temporary order to expire. To recap, the basic elements of an OFP are:
Prior Abuse: Contrary to popular myth, causing physical injury is not a component of a domestic battery case. Any harmful or offensive touching will suffice. However, if there is some physical evidence, like pictures or a doctor’s bill, physical abuse is easier to prove. Abuse can also be verbal, emotional, financial, or pretty much anything else. In non-physical cases, the state must normally establish a pattern of abusive conduct, like repeated stalking, as opposed to just one incident.
Need for Protection: Many times, alleged victims change jobs and relocate. If that happens, there may be little need for protection. The same conclusion applies if the alleged abuse was non-physical (verbal, emotional, or whatever). It is possible to suffer physical symptoms, like Post Traumatic Stress Disorder, in these cases, but such injuries are difficult to prove in court.
In a few cases, the alleged victim may not be legally entitled to protection. Some instances involve two people who were dating partners at one point. Under the Minnesota Domestic Abuse Act, these individuals may not be legally entitled to protection.
Procedural issues like these usually only matter at the permanent OFP stage and if the defendant has a good Hutchinson criminal lawyer. Otherwise, the judge will probably grant whatever relief the alleged victim requests.
Substantive Protective Order Defenses
It is rare, but alleged victims sometimes do fabricate abuse allegations. That’s especially true if there is a parallel proceeding in family court, like a child custody dispute. At the height of the Brad Pitt-Angelina Jolie divorce, there were allegations that Ms. Jolie coached her children into making abuse allegations against her estranged husband. Indeed, the FBI eventually cleared him or wrongdoing and the couple agreed on a joint custody order.
The Brangelina thing is not just an isolated incident. In many states, most notably Florida, criminal courts rarely issue protective orders if there is an ongoing civil proceeding elsewhere.
More commonly, many alleged victims are confused about the details. From a scientific perspective, extreme stress inhibits recall ability. So, there may be gaps in the alleged victim’s memory, and people often fill in these gaps with invented memories. Moreover, memory does not fade slowly over time. Most people forget almost all new information in less than forty-eight hours.
Therefore, if significant time passed between the alleged events and the application for protective order, there is a very good chance that the alleged victim’s recollections are shaky at best.
Reach Out to Assertive Attorneys
At a protective order hearing, you need an aggressive Hutchinson criminal lawyer, because the deck may be stacked against you. Even if you need an after-hours appointment, call Carlson & Jones, P.A. for a free consultation.