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Minnesota Domestic Assault Attorney Thomas Gallagher’s defense guide.
In Minnesota domestic assault is the most common domestic violence charge. But others include criminal charges of violating a restraining order based on relationship. And Minnesota law defines a “domestic” relationship broadly; in ways that defy common sense.
Love-triangle: Domestic Assault Attorney Thomas Gallagher defended a client; one of two male college roommates fighting. But they were fighting over a girlfriend. And then the prosecutor charged the client with “domestic assault” against the rival.
But under the narrower, federal relationship definition, prosecutors could not have done so.
Relationship element: Minnesota law creates several domestic crimes that all contain a relationship element. So in other words, a domestic crime requires evidence that the accused and the witness had that type of relationship. And examples of these include misdemeanor domestic assault cases. So, a domestic assault attorney could win your case where evidence of the required relationship is lacking.
Is domestic assault a felony?
Minnesota statutes allow prosecutors to “enhance” charges to a felony level in some situations.
Enhancement elements: Domestic assault can be a felony. Minnesota has many statutes that prosecutors can use to charge a felony-level domestic assault.
Minnesota’s specific domestic assault crime statute, Minn. Stat. §609.2242, creates crimes at the misdemeanor, gross misdemeanor, and felony levels. And the gross misdemeanor requires proof of “a previous qualified domestic violence-related offense conviction” within ten years.
If the defendant has prior “qualified domestic violence-related offense” convictions within ten years; the prosecutor can allege that as an element to prove felony domestic assault. But Attorney Thomas Gallagher has won dismissal of felony domestic charges, based on priors.
And another tactic for prosecutors is the controversial felony “domestic assault – strangulation” charge. Prosecutors use it to enhance misdemeanor-level cases to a felony; with the flimsiest evidence of incidental neck touching, a red mark, or the like.
But your domestic assault attorney can help you push back.
Five degrees of assault crimes
Prosecutors can charge assault fifth degree as a misdemeanor, gross misdemeanor, or felony. Minn. Stat. §609.224. The gross misdemeanor and the felony levels require at least one “previous qualified domestic violence-related offense conviction.” But the look-back periods are either three or ten years.
The first degree through fourth degree assault statutes generally do not require prosecutors to prove a relationship element. But some “third degree assault” charges are an exception. However, there a prosecutor must prove “a past pattern of child abuse” against the same minor, under Minn. Stat. §609.223 subd. 2. And a prosecutor must prove assault of “a victim under the age of four, and causes bodily harm” to the head, eyes, or neck, or multiple bruises, under Minn. Stat. §609.223 subd. 3. Both are felonies.
Your domestic assault attorney should be familiar with these laws.
Other crimes prosecutors claim in domestics
We also see criminal charges in domestic-related cases that do not require a relationship element. They include misdemeanor fifth-degree assault, disorderly conduct, obstructing legal process, “threats of violence,” and criminal sexual conduct. None of those require relationship proofs.
So when we speak of a domestic or family violence cases; we could mean the accusation fits the narrow, legal definition. Or people might be speaking loosely about any case where the people have a relationship.
What about child abuse crimes? They require proof of age, but not of relationship. Abuse of any child can be a crime, regardless of relationship. These include child neglect, child endangerment, and other child abuse crimes.
And though often associated with domestic cases, these crimes don’t require relationship proof: stalking and harassment crimes; violation of an Order for Protection (OFP), Harassment Restraining Order (HRO), or Domestic Abuse No Contact Order (DANCO); and interference with emergency 911 call.
For a deeper look at this, see our page: Minnesota domestic crime statutes.
Domestic Assault Attorney: Defending
Defense of domestic criminal cases should include strategies to aggressively defend every person. So, you can benefit from an experienced domestic assault attorney.
Counseling the client is important in these cases. So, for example, what should the accused do in response to the court’s No Contact Order? An experienced domestic assault attorney can help advise.
Examples of cases involving claims of domestic violence crime handled by Domestic Assault Attorney Thomas Gallagher include:
- Felony Domestic Assault, including strangulation claims, priors
- Interference with a 911 Emergency Call, 609.78
- Misdemeanor Domestic Assault
- Violation of an Order for Protection (OFP), Harassment Restraining Order (HRO)
- Child Abuse or Neglect
- Criminal Sexual Conduct, with or without relationship element
Defenses & Your Domestic Defense Attorney
Most defenses apply to every type of criminal case. But some defenses are specific to domestic criminal cases. Your domestic defense attorney should know them all well.
Self-Defense: Like assault cases generally, many domestic assault cases involve a defense based upon reasonable self-defense: Minnesota Self-defense laws
False Reports: False accusations are common. The accuser’s strong emotions at the time of the police report may distort them. And the relationship history can influence them.
But almost always, the people were using alcohol. And the alcohol reduces impulse control, increases emotions, degrades perception and reporting of events.
Fifth Amendment Privilege: A prosecutor may charge both parties for mutual assault. Or they might pick one. And in this situation, an effective defense can involve getting both parties their own witness attorney, to checkmate the prosecution. Other defenses are available as well.
Holding Government to its Proof
Since the burden of proof rests with the prosecution, what actual evidence is there? Is there nothing more than a naked accusation, without corroborating evidence?
The jury is the last defense of human rights and liberty under the Constitution. Our job is to challenge the prosecution case and expose its weakness.
And we test the theory that the accused is innocent, with evidence. A prosecutor can attempt to convict a person of a domestic crime on the uncorroborated claims of a single witness. But that witness may have an axe to grind; an agenda. And you need the best defense possible to counter that.
Penalties prevention with domestic assault attorney
Prosecutors can charge domestic crimes as misdemeanors, gross misdemeanors, or felonies.
The level of conviction depends upon the length of incarceration “imposed” by the judge. And more than one year is a felony. Thirty-one to 364 days is a gross misdemeanor. Or, up to 90 days is a misdemeanor. Your domestic assault attorney can help you understand and avoid these penalties.
But the level of the charge depends upon the maximum possible jail or prison time.
Probation is a “Stay of Imposition,” or “Stay of Execution” of Sentence. And felony probation is more common than a prison commitment. And with a probationary sentence, the defendant can avoid prison (or jail) by complying with the conditions. Common conditions of probation in these cases include a domestic violence evaluation, following its recommendations; and no contact with the victim.
The biggest penalty is the criminal “conviction” record. And it triggers harsh consequences. But a good domestic assault attorney can help you avoid them.
Government “solutions:” Reduction in annual family income: A big consequence is the loss of family income and job opportunities. And if you multiply annual income reduction by future working years; the dollar-amount is huge.
Destruction of marriage and the family: So these cases tremendously stress the defendant, the witness, and the entire family. And with the No Contact Orders, both pre-trial and as a condition of probation; the government destroys marriages and families. And this is government overkill, in most cases.
See: How to Drop a No Contact Order in Minnesota.
Collateral consequences: domestic assault attorney
Lifetime loss of civil rights: A domestic crime conviction often results in a lifetime loss of civil rights to firearms. And this is another government over-reach, especially for most defendants with only one incident or no felonies. So for a deeper look, read our: Civil Rights to Firearms After a Misdemeanor Domestic Crime Conviction in Minnesota.
But your experienced domestic assault attorney can help you understand, prevent and solve these civil rights problems.
Avoiding Conviction Consequences
A good domestic crime attorney can help you and your family avoid the severe consequences of a conviction. Beyond jail or prison, a person facing domestic crime charges, a criminal record is a severe consequence. But a conviction is worse than jail and can result in:
- Reduction in annual income earning potential; reduced child support
- Professional, occupational license loss
- Increase in health & other insurance premiums
- Damage to credit report & rating
- Deportation or Removal from the United States (of non-citizens)
- Public criminal record
- Gun & firearms civil rights after domestic conviction
Question? Call Attorney Thomas Gallagher, 612 333-1500
More
Domestic Assault, Felony Assault, Crimes with Domestic Relationship
Minnesota Domestic Criminal Statutes
Point-of-View and Self-Defense
Felony Domestic Assault Charges Dismissal, Based on Priors