A turning point of the most serious variety occurs in a romantic relationship after a report of domestic abuse. Many tough decisions must be made and the help of a skilled and experienced domestic abuse defense lawyer can make all the difference.
Minnesota’s laws and courts have established numerous safeguards and protections for people who report that they are a victim of domestic abuse. These measures have been taken due to the manipulation, intimidation, and escalation displayed again and again by domestic abusers. Domestic abuse victims are viewed by our justice system as particularly vulnerable, and domestic abusers as particularly dangerous.
It is important to know that Minnesota’s safeguards and protections of alleged domestic abuse victims start immediately, regardless of whether the accusations are actually proven to be true. After being accused of domestic abuse, many men and women wonder about the fairness of such a system and further question whether their presumption of innocence is being infringed upon. The short answers are “yes” the system is fair and “no” their presumption of innocence is not being infringed upon.
A longer explanation, though, helps the accused person understand exactly what to expect, how to approach and effectively address the accusations, and what measures will be taken by their lawyer to make sure there is fairness in the process. This article will provide a more general, abbreviated explanation that the lawyers at Lundgren & Johnson provide to their clients to help them through one of the most difficult times in their lives. If you are facing a similar issue, please feel free to contact our firm for a free consultation.
Arrest and First Court Appearance
The accused person will be arrested once a report is made in most instances and will remain in custody until he or she is brought before a judge at their first court appearance. For a detailed explanation about the timing of that first court appearance, visit our blog: In Jail for the Weekend (Or More) – Minnesota’s 36-Hour Rule.
At the first court appearance the person will be informed many things about their rights and the criminal charges that have been alleged against them. The charges can vary widely depending on the factual circumstances. Accordingly, the offense level can range from a misdemeanor to a felony. Likewise, the potential penalties can range from probation to prison if convicted.
The judge will also set conditions of release and bail for the accused person. Irrespective of the specific charges that are alleged, the accused person must be prepared for the following restrictions courts uniformly impose while the case is pending.
No Contact Order, Domestic Abuse No Contact Order, and Firearm Surrender
When domestic abuse related charges are brought against an individual, the court’s number one concern is to deescalate the situation and provide for the alleged victim’s safety. In order to accomplish those goals it has numerous tools it can, and will, use.
First, as a condition of the person’s release, the court will require the person to vacate the home and have no contact with the alleged victim. If the person violates this order the court will issue a warrant for the person’s arrest. Second, the court will also order the person to surrender any firearms in their possession. A person accused of domestic assault charges can avoid being subject to these conditions of release by posting an unconditional bail amount, but for the reasons below, this option is merely academic.
The third tool at the court’s disposal is to order a separate Domestic Abuse No Contact Order (DANCO) irrespective of bail or any conditions of release. The court will impose a DANCO. The DANCO will prohibit the person from entering the residence they share with the alleged victim and will prohibit any contact with the alleged victim. A violation of the DANCO will lead to the person’s immediate arrest and additional criminal charges. DANCO’s also have the effect of disqualifying an individual from possessing firearms under a federal statute colloquially known as the Lautenberg Amendment. No amount of posted bail can get rid of the DANCO. It is the most powerful tool at the court’s disposal.
Civil Order for Protection
In addition to the orders imposed as a part of the criminal charges, the alleged victim may also seek a separate, civil domestic abuse order for protection. There is no filing fee to obtain an order for protection and alleged victims are often encouraged by county or city officials to seek and obtain one. Civil orders for protection are routinely issued on an emergency, ex parte, basis, meaning the individual it is applied against does not have an opportunity to be heard before it is issued. Once served with the order, however, the accused person can request a hearing and one will be held in relatively short order.
A civil order for protection can include extensive relief to the person seeking it. As an illustrative example, the order can remove the accused from the home, prohibit the person from visiting the alleged victim’s place of employment, prohibit the person from transferring joint assets, require continued payments for insurance premiums, award temporary custody of common children, require the accused to attend and complete counseling, and much more. The order is typically granted for two years, but it can be granted for up to 50 years.
Like the DANCO, a person subject to an order for protection is disqualified from possessing a firearm under the Lautenberg Amendment. Also like the DANCO, a violation of an order for protection will result in arrest and new criminal charges being filed. Even if the person is acquitted on the underlying charges, a violation of an active DANCO or order for protection constitutes an independent criminal offense.
If a hearing is requested by the accused person, the alleged victim need only prove his or her claim by a preponderance of the evidence. “A preponderance of the evidence” means “more likely than not” – and happens to be the lowest standard of proof in our justice system. The accused person does enjoy the right to testify on his or her behalf at the hearing without that testimony being used against him at his criminal trial. The accused person can also use the subpoena power of the court to compel other persons to come to court and testify.
County Human Services Investigation
If the domestic abuse charges concern neglect, maltreatment, or abuse of a child or vulnerable adult within the home, the County will initiate an administrative maltreatment investigation. If a finding of maltreatment is made against the accused, it can prohibit that person from maintaining or obtaining any employment that requires successful screening by the Department of Human Services. A finding of maltreatment will also include a protection plan to ensure the safety of the children or vulnerable adult, if necessary.
Domestic assault charges often bring the necessity or desire for divorce, too. While the lawyers at Lundgren & Johnson do not practice in family law, we have resources and referrals for our clients who need the services of a divorce lawyer. We also understand that in order for our clients’ interests to be best represented, there needs to be communication and coordination with the lawyer responsible for the dissolution proceedings. Would you want to undergo two nearly simultaneous medical operations by two different doctors who had little to no communication with one another? The answer is no; it is equally imperative for legal professionals to share and compare information.
Mitigating the Immediate Damage
Our domestic assault defense lawyers have seen many iterations and unique scenarios involving abuse allegations. Through that experience we have developed several measures that have proven effective in bringing relief for our clients. While no two situations are alike, many present similar obstacles and therefore have familiar solutions.
As an example, it is important to coordinate at the outset between all of the orders that may be in place against the accused. Courts will often grant our request for a law enforcement escort into the home so the accused can gather personal belongings and effects. However, that order must encompass each one across the board, otherwise the accused is being set up for failure and potential additional criminal charges.
There are other immediate measures that can be taken at the outset to lessen the harshness of the restrictions imposed against the accused. We take pride in remaining flexible, keeping an open mind, and coming up with creative solutions to our client’s problems.
Tailor an Effective Defense on the Merits
Our lawyers David R. Lundgren and Adam T. Johnson are Lead Counsel Verified in criminal law, Top 40 Under 40 trial lawyers for criminal defense, and have received the Client’s Choice Award from Avvo for a reason: they have demonstrated time and time again that they can tailor a defense to accomplish their client’s objectives.
While preparing a defense, our lawyers look at all possible avenues to advocate on our clients’ behalves. This will often include exploring potential motives for the alleged victim to fabricate allegations, looking for evidence of prior false accusations by the alleged victim, determining any biases the alleged victim may have against the accused, and exploring credibility and/or dishonesty issues the alleged victim may have. We take pride in our attempts to turn already marginal “he said – she said” cases into even less than that. Our clients benefit because we take the time to properly prepare a case for trial even when a trial seems unlikely.
Restoring Our Clients to Whole
When an accused person first reaches out to our firm they are often overwhelmed and are mostly concerned about how to avoid the negative consequences of a criminal conviction. However, a sound strategy will also include challenging any of the collateral orders outside of the criminal context if warranted and desired. For example, will the client be satisfied if the criminal charges are dismissed, but they are fired because of a Human Services finding of maltreatment or are banned from possessing a firearm because of a civil order for protection?
An experienced and strategic defense starts by clearly defining the goals and identifying what has to be done to accomplish those goals. To be sure, no lawyer can guarantee a specific result in any case. However, an accused person has a much better chance at accomplishing his or her goals when they know and understand the obstacles they face and have a zealous advocate by their side in their attempt to successfully surpass them.
Call Us Today
We take great pride in protecting our clients’ rights. If you or a loved one are facing domestic abuse allegations, contact attorneys David R. Lundgren or Adam T. Johnson at 651-888-2937 to discuss your options.