Lawyers in Huthcinson, MN and Restraining Order Options

Recently, we have sensed a subtle change in the McLeod County protective order process. For example, in ex parte (emergency ) Orders for Protection (OFPs), some judges require additional evidence before they grant an order. They are no longer willing to accept the alleged victim’s story at 100 percent face value. This evidence could just be anecdotal, or it could be part of a larger trend.

This reluctance is even more apparent if there is a parallel family law proceedings, like a divorce or a motion to modify custody.

However, if the alleged victim is prepared and speaks with a lawyer in Hutchinson, MN prior to the hearing, the additional informal requirements are usually not a problem. Since there is no lawyer on the other side, all proposed evidence is admissible. That could include an audio recording with lots of ambient noise or a text message from a friend.

Nevertheless, we thought it would be a good idea to review the types of restraining orders available and the evidence needed to obtain them.

On a related point, if you are accused of domestic violence, OFP matters are a bit easier to defend, especially if your lawyer in Hutchinson, MN has a lot of experience in these matters.

Types of Restraining Orders

Domestic violence comes in many forms. So, Minnesota law provides for two major types of restraining and protective orders.

Harassment Restraining Orders are available pursuant to Minnesota Statute Section 609.748. The types of harassment are:

  • Any incident of sexual violence, including “revenge porn” postings,
  • Repeated acts which have a “substantial adverse effect on the safety, security or privacy of another,”
  • Targeted residential picketing, which is basically spying on a dwelling, school, place of business, or other location, and
  • Repeatedly attending public events after being warned that the person’s presence at these events is unsettling.

By law, McLeod County judges can only grant sexual violence or repeated act HROs if there is an immediate and pressing danger of harassment. In other words, the underlying incidents have to be very recent. In the current environment, it’s difficult to get a targeted picketing or repeated attendance HRO, at least in our experience.

Domestic Abuse No Contact Orders are broader and more powerful than HROs. Only a criminal judge may issue a DANCO. A judge will grant a DANCO only if the alleged abuser or harasser is a family member. HROs apply to anyone, even non-family members. These orders are also appropriate if the alleged abuser has violated a protective or similar order in the past.

Lawyers in Hutchinson, MN and the Basis for Restraining Orders

Especially in the current environment, domestic abuse is the best ground for obtaining any type of restraining order. The major kinds of domestica abuse are as follows.

Interfering with Emergency Calls

Yes, it is possible to do this and yes, it is a form of family violence. Blocking a call is basically virtual false imprisonment.

Some alleged abusers block cell phone calls to friends or relatives. The process is relatively complex, so it’s almost impossible to “accidentally” block a call.

It’s impossible to block a 9-1-1 call. But it is possible, and rather common, to threaten people if they make such calls. Cajoling a person into not making a call (i.e. “I’m sorry so please don’t call the cops”) may also constitute emergency call interference.

Terroristic Threats

These threats are basically empty threats of violence which are designed to “terrorize” the alleged victim. Examples include making a fake bomb threat, brandishing a replica pistol during an argument, and making vague threats of future physical violence.

Criminal Sexual Contact

Forced sexual contact, even in a marriage relationship, is normally illegal criminal sexual contact in Minnesota. The extent of contact is usually irrelevant.

CSC could also include a “date rape” drug, such as alcohol. Typically, if the alleged victim was almost passed-out drunk, most courts would consider any subsequent sexual contact unconsented and therefore criminal.

Fear of Immediate Physical Harm

If the alleged abuser has been physically violent in the past, any new threats of violence usually qualify as fear of immediate physical harm. Indirect acts of violence, such as wrecking furniture or harming pets, may also qualify.

Physical Harm

There is a difference between physical harm and physical injury. Physical injury is result-oriented (i.e. broken bone or laceration). Physical harm is action-oriented. The conduct, not the result, matters. So, if the alleged abuser throws something at you and misses, that’s still physical harm. Granted, it’s difficult to prove physical harm without physical injury, especially in the current environment.

Partner with a Diligent Lawyer

Now more than ever, if you need protection from domestic abuse, you need to speak with an experienced lawyer in Hutchinson, MN. Call Carlson & Jones, P.A., for a free consultation. After-hours visits are available.

The Three Types of Restraining Orders in Minnesota

Every day, domestic violence shelters nationwide field about 20,000 phone calls from frantic victims. This figure does not include the substantial number of 9-1-1 domestic violence calls, as well as the high number of unreported incidents.

Many of these alleged victims seek judicial protection. A restraining order is much more than just a piece of paper. It gets the full authority of the law on the victim’s side, gives other people notice of the danger, and creates legal obligations for alleged abusers. These individuals usually need their own Hutchinson, MN lawyers to protect their interests.

At Carlson & Jones, we protect domestic violence victims. At the same time, we realize that there are usually two sides to the story. The most effective protective orders take all the facts into account and provide appropriate protections for both alleged victims and alleged abusers.

Orders for Protection

McLeod County courts may intervene in a domestic fight if the applicant qualifies for a protective order from both a relational and physical standpoint.

Typically, the applicant is or was related to the defendant by blood or marriage. So, establishing a relationship is usually not a problem. But sometimes, the domestic ties are not so black and white. For example, a girlfriend may seek protection from her boyfriend. UNder Minnesota law, such protection may be available. However, the nature of the relationship may be an issue. One or two dates probably does not make two people “dating partners” as defined in the Domestic Abuse Act.

Moreover, only physical abuse victims qualify for these protective orders. Once again, in the vast majority of cases, there has been a physical assault. Any harmful or offensive touch qualifies. Physical injury just makes the incident easier to prove in court. The iminent threat of physical violence qualifies as well. But there is a difference between an iminent threat and and idle threat. There’s also a difference between a threat of violence and a fear of violence.

Based solely on the application a McLeod County judge may grant an ex parte order for protection. Then, after the alleged abuser receives notice of the proceeding and has an opportunity to hire a Hutchinson, MN lawyer, the judge may extend the order for up to two years.

This permanent protective order is usually more than preventative. Judges routinely order protective order defendants to do things like pay financial support, surrender their firearms, and vacate a joint residence.

Harassment Restraining Orders

Many times, domestic violence is a slow burn as opposed to a one-time flare-up. In these situations, a harassment restraining order may be available. HROs are designed for situations which may not be physically threatening, but are nevertheless very unsettling for both alleged victims and their families. Such conduct includes:

  • Showing up at work,
  • Following the alleged victim or a family member,
  • Placing repeated phone calls, especially at odd hours, and
  • “Checking up” on the alleged victim.

Technically, two incidents are all it takes to establish a pattern. But pragmatically, the more incidents that a Hutchinson, MN lawyer presents to the court, the more likely a judge is to issue an HRO. Diary or journal entries are good; prior 9-1-1 calls or witnesses are even better.

The incidents above are not enough. They must trigger a reasonable fear in the alleged victim. Lack of objective fear is the easiest way for a Hutchinson, MN lawyer to defend alleged abusers against HROs.

Procedurally, harassment orders are much the same as protective orders. The judge may issue an ex parte order based solely on the victim’s testimony. But a judge is unlikely to do so if there are only a few isolated stalking episodes. At a full hearing, the order can include not only anti-stalking provisions, but also language which prohibits the alleged abuser from interfering with utility service or school enrollment.

Out-of-State Protective Orders

The Minneapolis area is basically a regional transportation hub. Lots of people move to Minnesota from other places in the Midwest and other places around the country. If they relocate to escape domestic abuse, their protective orders may be able to relocate with them.

Permanent (non-ex parte) protective orders are almost always transferrable across state lines, as long as a court of competent jurisdiction entered orders that concern domestic violence issues under Minnesota law. The rules differ slightly for MPOs (Military Protective Orders).

Child custody provisions usually remain in place as well, as long as they comply with measures like the Uniform Child Custody Jurisdiction Act (UCCJA) and the ominously-named Parental Kidnapping Prevention Act. So, if a judge gave you custody of your children, you can generally keep them. To change that provision, the alleged abuser would have to petition the issuing judge. McLeod County judges have no power to modify an out-of-state domestic violence order.

It’s also a good idea to enroll your out-of-state order with the National Crime Information Center Registry. The NCIC forwards the order to all state law enforcement agencies.

Work with Experienced Attorneys

Both alleged victims and alleged abusers have legal options in domestic violence situations. For a free consultation with an experienced Hutchinson, MN lawyer, contact Carlson & Jones, P.A. We routinely handle matters in McLeod County and nearby jurisdictions.

Do Hutchinson Criminal Lawyers Defend Protective Order Claims?

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.

How Do Hutchinson Criminal Defense Lawyers Deal with Restraining Orders?

Every year, more than ten million Americans are the victims of domestic violence. The abuse could be physical or non-physical. Moreover, the abuse could also be a sudden explosion of violence or a long series of smaller events. Many of these incidents result in serious or even fatal injuries. Since so much is at stake, it’s important that people who need help get it straightaway.

Generally, McLeod County judges cannot take action without according all sides due process of law. Domestic protective orders are one of the few exceptions. If you need immediate protection, a Hutchinson criminal defense lawyer can make sure you get it.

However, the due process waiver is only temporary. Before a judge takes stronger action, it is important to hear both sides of the story. That’s especially true if there is a parallel family law or divorce proceeding. Very few victims manufacture or inflate domestic violence charges to gain an edge in civil court. But it has happened before, and it will happen again.

Who is Entitled to Protection

Over the last fifty years, the definition of “family” has changed significantly in Minnesota. Most Hutchinson children live in non-traditional households. Minnesota’s domestic violence law recognizes these shifts, so many different individuals are entitled to protection.

  • Common Child: Some people have children together but never marry. In fact, some of these couples never had much of a relationship at all. Nevertheless, violence still sometimes happens in these situations, so protection is available.
  • Current or Former Dating Partners: The above categories are objective. People are either married or they are not. But this category is a bit subjective. Two people need not be engaged to be “dating partners,” but they probably must have gone out more than once or twice.
  • Persons Related by Marriage: Most domestic violence claimants are current spouses, estranged spouses, or former spouses of the alleged abuser. This definition may also encompass in-laws and other non-marital relationships. Common-law marriages have not been legal in Minnesota since 1941, unless the couple was common-law married in another state.
  • Current or Former Roommates: This category is vague as well. One night on a sofa does not make one a roommate. However, there’s no requirement for a written roommate agreement or that a person is listed on a lease.

A number of individuals know they are entitled to protection and they know they need protection. Nevertheless, they do not contact Hutchinson criminal defense lawyers about a possible restraining order. Many of these people assume that the order is just a piece of paper which is almost meaningless.

But that’s not true. If a person obtains a restraining order, the alleged victim can distribute copies of that order to schools, daycares, churches, and other places their children frequent. If these organizations receive notice, they have a legal duty to honor the protective order. Furthermore, the ex parte restraining order is a springboard. Once the alleged victim obtains one, it’s much easier to secure broader and longer-lasting protection in a subsequent hearing.

Types of Restraining Orders

Alleged victims in McLeod County may obtain either an HRO (Harassment Restraining Order) or an OFP (Order For Protection). In general, victims who fear for their physical safety, or the safety of their children, should apply for OFPs. As the name implies, HROs usually prevent stalking and other non-physical forms of abuse.

Minnesota judges are about the only ones in the country who can issue long-term protective orders based on one side’s testimony. The judge will issue a protective order if there is an imminent threat of domestic violence and the applicant needs immediate protection. The judge will either grant a protective order that’s good for up to two years or deny protection and set a hearing. Once the alleged abuser receives notice, that person can also request a hearing.

If the alleged abuser previously violated a protective order, the OFP can be valid for up to fifty years. The alleged abuser can ask the judge to modify or vacate the order later. Normally, a five-year waiting period applies.

At the subsequent hearing, which either party can request, the judge may enter additional orders, such as:

  • Forfeiture of firearms,
  • Payment of support, and
  • Attending parenting, anger management, or other classes.

Generally, HROs offer the same protections. But there are some procedural differences. If the alleged victim cites only one harassment, stalking, or other incident, the alleged victim must also swear that there is an immediate threat of physical violence.

A Hutchinson criminal defense lawyer may also go to civil court and obtain roughly the same protection. The parties have more control over the matter in civil court, and criminal protective orders have more teeth. Many times, at Carlson & Jones, we suggest that alleged victims seek both types of protection.

We are dedicated to the rights of victims, and we also believe that there are usually two sides to every story. A protective order can have dire consequences, both professionally and personally. So, we sometimes represent alleged abusers and make sure they get their day in court.

Work with Assertive Attorneys

Whether you are faced with domestic violence or feel you have been unfairly charged, help is available. For a free consultation with an experienced Hutchinson criminal defense lawyer, contact Carlson & Jones, P.A. AFter-hours visits are available.

 

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