How we successfully moved for Dismissal of Felony Domestic Assault charges, enhanced based upon priors.
The Complaint alleged two or more previous “qualified domestic violence-related offense convictions” within ten years. And that was the basis for Felony-level Assault charges; enhanced to a felony level offense; solely upon Minnesota Statutes §609.2242, Subd. 4, priors.
Collateral Attack on Felony Domestic
But without two or more “qualified domestic violence-related offense convictions” the felony domestic charge would face dismissal. (Although, prior to jeopardy attaching; the prosecutor could recharge domestic assault on the same factual claims, but at a lower severity level than a felony.)
Making the law your friend
Minnesota Criminal Lawyer Thomas Gallagher reviewed the client’s prior conviction record. And he compared it to the statutory definition of “qualified domestic violence-related offense convictions” in Minn. Stat. §609.02, Subd. 16.
The client had a conviction for Violation of a DANCO, under Minn. Stat. §518.0 1, Subd. 22(d). But that was not among those listed under the statute defining “qualified domestic violence-related offense convictions.”
The prosecutor had made a mistake charging felony domestic assault. And Attorney Thomas Gallagher caught that mistake. The prosecuting attorney later remarked that even though the law changed several years ago; this was the first time a defense attorney raised this defense. And a review of published cases confirmed his observation.
After a judge commented favorably prior to a contested omnibus hearing, on Attorney Thomas Gallagher’s pretrial motion to dismiss; the prosecutor requested time to consider it. And then the prosecutor later dismissed five felony charges against Gallagher’s client prior to the contested hearing date. He had no evidence to support charge enhancement based on priors, after all.
So a good criminal defense lawyer is detail oriented. And he must check everything the government does for mistakes, as part of a thorough and complete defense. But, this is even more important for anyone facing a felony domestic assault charge.
Attorney Thomas Gallagher represents people facing domestic criminal charges.