Wednesday, April 3, 2013

Minnesota Domestic Assault (Explained)

Domestic Assault is generally defined as either "an act intended to cause fear of immediate bodily harm or death" or "an attempt or actual infliction of bodily harm upon another."  You can read the actual domestic assault statute here - Minn. Stat. §609.2242.

Example of Assault: A husband and wife argue in their home.  The husband becomes upset and raises his closed fist at his wife but does not actually strike her.  The wife is frightened by this because she thinks her husband might hit her.  This is considered an assault even though the husband never actually touched his wife.  An assault includes actual touching or an act intending to cause fear (in this case, the husband raising his fist at his wife).

Domestic assault is a "regular" assault upon a family or household member.  This can include any of the following relationships:

  • Spouses and former spouses
  • Parents and children
  • Persons related by blood
  • Persons who are presently residing together or who have resided together in the past (ie. roommates)
  • Persons who have a child in common regardless of whether they have been married or have lived together at any time
  • A man and woman if the woman is pregnant and the man is alleged to be the father, regardless of whether they have been married or have lived together at any time
  • Persons involved in a significant romantic or sexual relationship
These definitions are important since it is a common misconception that two persons must actually live together to be in a domestic assault.  Likewise, domestic assaults do not only occur between spouses or between parents and children.

Levels of Domestic Assault: Misdemeanor, Gross Misdemeanor and Felony

 Domestic Assaults are known as "enhanceable" offenses in Minnesota.  This means if a person is convicted of domestic assault, any future charges and convictions for assault or "qualified domestic violence-related offenses" will be treated harsher. (This does not even take into account the seriousness of the injury suffered by the "victim.")
  • Misdemeanor Domestic Assault: First-time offense or no qualified domestic violence-related convictions in the past 10 years
  • Gross Misdemeanor Domestic Assault: One prior qualified domestic violence-related conviction in the past 10 years
  • Felony Domestic Assault: Two or more qualified domestic violence-related convictions in the past 10 years (maximum punishment of 5 years in prison or $10,000.00, or both)
Qualified Domestic Violence-related Offenses in Minnesota (Examples)

Under Minn. Stat. §609.02, Subd. 16?  These are violations or attempted violations of any of the following:

  • Violation of a domestic abuse order for protection
  • Violation of a domestic abuse no contact order (DANCO)
  • Murder in the First and Second Degree
  • Assault in the First, Second, Third, Fourth and Fifth Degree
  • Domestic Assault
  • Domestic Assault by Strangulation
  • Criminal Sexual Conduct in the First, Second, Third or Fourth Degree
  • Malicious Punishment of a Child
  • Terroristic Threats
  • Violation of a Harassment Restraining Order
  • Stalking
  • Interference with an Emergency Call

Domestic Assault and the Effect on Firearms in Minnesota

When a person is convicted of domestic assault or assault in the first, second, third or fourth degree, the court must determine the following:

Whether the assault was committed against a family or household member
Whether a firearm was used in any way during the assault

If a firearm was used against a family or household member during the assault, the firearm shall be forfeited under Minn. Stat. 609.5316.  In other words, law enforcement will take the firearm permanently either for their own use or to be destroyed.

In addition to forfeiture, if the court determines that a firearm was used in the assault, the person can be prohibited from carrying a firearm anywhere between 3 years to life.  Violation of this order is a gross misdemeanor.  Even if the judge fails to tell the defendant this information, the person can still be charged with the violation.

What to Expect

Persons charged and convicted of domestic assault can expect to have their right to carry firearms taken away, as discussed above.  Defendants can also expect a combination of the following: probation usually lasting 2 years, a monetary fine, no contact with the victim, substance abuse counseling or treatment, community service, anger management classes, electronic home monitoring or local jail time.  First-time offenders typically serve no jail time or a very short amount of jail time (such as 2 or 3 days, which oftentimes can be served through community work service or house arrest).  For second and subsequent convictions, these same expectations exist but the length or probation is increased along with the likelihood the person will serve time in local jail.

All of the above being said, as a former prosecutor I know --- these are all too often the toughest cases for the State to prove.  That's why you need a good a Minnesota Criminal Defense Attorney at your side through the whole process.  Honestly, each case has unique facts and circumstances.  Furthermore, not every city and county handles domestic assault cases the same way.  Harsher punishment is typically sought in cases where the victim was badly hurt, alcohol or drugs were involved, there is a pattern of abuse, a weapon was involved or where the defendant has prior criminal convictions.

If you are facing a Domestic Assault charge, call the criminal defense attorneys at the Rolloff Law Office at (612) 234-1165 for a Free Consultation. 

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