Estimated reading time: 8 minutes
Minnesota law enables more than one type of Restraining Order. Here are the most important:
- Order for Protection (OFP)
- Harassment Restraining Order (HRO)
- Domestic Abuse No Contact Order (DANCO)
- No Contact “Condition of Pretrial Release”
- Extreme Risk Protection Order (ERPO)
Family court: The first two (OFP and HRO) begin in family court as civil motions by a person. So, the person who asked for it can drop it.
Criminal court: The second two (No Contact Condition and DANCO) begin in a criminal court case after the government claims a person committed a crime. The government’s lawyer – the prosecutor – asks for it.
A judge can drop the “No Contact Condition” and the DANCO. But judges rarely will unless the alleged victim campaigns for it.
How do restraining orders work?
The various types of restraining orders can be a bit confusing. But they all share key features:
- Notice
- Opportunity to be heard
- Specific
- Consequences
Notice: All restraining orders require notice. So a person is not responsible for obeying any type of restraining order unless they are on notice. And civil restraining orders like OFPs and HROs must be personally served.
But the judge in a criminal case will provide notice of criminal restraining orders verbally and in writing to the defendant appearing in court, in person. And these include both No Contact “Conditions of Pretrial Release,” and DANCOs.
Opportunity to be heard: Notice; and the opportunity to be heard by a fair and neutral magistrate (judge), are core features of due process. Each of us has the constitutional right to due process (fair legal proceedings) affecting our life, liberty or property.
An ex parte restraining order can be enforced after notice, but before an opportunity to be heard. As a result, an “ex parte” order can only be enforced on a temporary basis – typically a matter of days (until a hearing, if Respondent requests one). An “ex parte” Order issues from the judge after a sworn statement from only one side.
So, “ex parte” restraining orders have less legal effect. But they do have consequences if violated after notice.
A judge can issue a full, long-term restraining order only after the affected person has the opportunity to be heard. (The Respondent can waive or give up their opportunity to be heard, by not requesting a hearing after notice.)
Specific: The restraining order must have specific terms about what must not be done.
Consequences: The order must include notice of the consequences in the event of a violation.
Civil restraining order > criminal consequences
The Minnesota laws creating the Order for Protection (OFP) and Harassment Restraining Order (HRO) remedies are similar in many ways. But one key difference is that the OFP law requires a relationship between the parties while the HRO law does not.
If the Respondent in either an OFP or HRO, has contact with the Petitioner or otherwise violates its terms; the prosecutor can charge the Respondent with a crime.
Prosecutors criminally charge these cases as a “Violation of an Order for Protection” or “Violation of a Harassment Restraining Order.” And these criminal charges have serious consequences. So a person charged with one of these crimes needs help from an experienced defense lawyer.
Criminal restraining order > criminal consequences
In pending domestic criminal cases, the prosecutor usually asks the judge for both a No Contact Condition of Pretrial Release; and a Domestic Abuse No Contact Order (DANCO). These two types of “no contact orders” (NCOs) may sound like one thing. But they are two separate court orders with important differences.
Pre-trial release condition: no contact
In any criminal case the judge can set conditions of pretrial release, including bail. But in domestic criminal cases, the state asks the judge to include a no-contact condition of pretrial release. (Pre-trial release is release from custody before a trial, sometimes with conditions set by a judge.)
Remedy: If the defendant violates a condition of pretrial release, the court can issue an arrest warrant. And the judge can revisit the issue of pretrial release later, after the defendant is in jail again.
A violation of a no-contact condition of pretrial release cannot itself, alone, result in a new criminal case. But, a violation of a DANCO can, and does.
What is a DANCO?
The “Domestic Abuse No Contact Order” in Minnesota, often referred to by its acronym, DANCO, is a more recent development. And though similar to a civil OFP, it originates in a criminal case.
It is similar to an OFP because a prosecutor can charge a violation of a DANCO as a new, independent crime. And a “Violation of a DANCO” charge will have a new court file number; and potentially, a separate date of offense, conviction record and sentence.
In Minnesota, every defendant has the Constitutional right to pre-trial release without conditions other than bail, pending the trial. And proponents of the DANCO law had this in mind. A person facing domestic criminal charges can post the usually higher, unconditional bail amount with the court. And so that defendant could avoid a “no-contact” condition of pretrial release.
But the DANCO is another kind of no contact order with even more severe consequences for violation. Since the DANCO is not a “condition of pretrial release,” in the end a “no contact order” remains – even if the defendant posts the higher, unconditional money-only bail.
What is an ERPO?
An “Extreme Risk Protection Order” (ERPO), (e.g., “red flag” order), is a court Order to confiscate firearms. This is another type of restraining order.
A family or household member, law enforcement officer, city or county attorney, or guardian can petition a court for an order to temporarily prohibit someone from lawfully purchasing or possessing a firearm. They must claim that the person is at risk of harming themselves or someone else.
If granted by a judge, an ERPO directs a person to surrender firearms and bars lawful purchase of firearms while in effect. The initial ERPO can be granted in secret, without notice or opportunity to be heard (“ex parte”).
The targeted person can request a hearing after receiving the ex parte ERPO and surrendering firearms, to argue to a judge that a long-term ERPO should not be granted.
This law is controversial. Reasons include potential for vindictive prosecution, and deterring help for mental health and chemical health. The ERPO laws are Minnesota Statutes Sections 624.7171 to 624.7178.
And critics point out that if a person is “at risk of harming themselves or someone else,” then a Civil Commitment petition would address helping the whole person; not just an attempt at removal of one instrumentality, easily avoided.
Do restraining orders go on your public record?
Court records – civil vs. criminal: First, note the difference between a civil restraining order and a criminal charge. The general rule is that most court records are public, whether civil or criminal. But most employment screening using criminal history background checks tend not to check civil court records. So criminal court records are more important.
Show up on a background check? Even if someone saw a civil court record of a OFP or HRO case, it would mean little. Judges grant civil restraining orders on a lower burden of proof. And they don’t mean that the judge viewed allegations as true beyond doubt.
Criminal court records, on the other hand, can cause bigger problems. A conviction record shows that a jury or judge accepted the allegation as true beyond a reasonable doubt. Criminal case restraining orders, though public, are still less damaging than a record of conviction.
In general, restraining orders have a temporary effect, while in place. (One example is the temporary suspension of gun rights while a civil OFP is in effect.) But criminal conviction records are permanent, and can have long-term effects (including civil rights).
Is it possible to avoid a Restraining Order or get rid of one once it already exists? Like so many things, prevention is far easier than getting rid of one afterwards. How to prevent them, and how to get rid of them, varies depending upon which type.
In domestic criminal cases, the witness usually did not request, and does not want, any restraining order or no-contact order.
What about victim’s rights?
Despite the Minnesota Victim’s Rights law, Prosecutors and courts rarely ask the alleged victim whether he or she wants a no contact order; and if they say they don’t, courts may still issue the no contact orders initially.
Most so-called victim advocates solely promote the prosecution’s agenda. They recruit and groom the victim as a prosecution tool. The prosecutor then discards the victim after use. Victim advocates deserving of that title, are rare and few.
When their solution is your problem. The legal system in Minnesota victimizes these witnesses. It does so by taking away their power to control their own lives, and associate as they wish. And this leads many to seek legal advice and representation from a witness attorney.
More
How to Drop a No Contact Order in Minnesota
Get Out of Jail After Arrest – Tips for Getting Her Out
Domestic Assault Cases
Felony Domestic Assault Dismissal, Based on Priors
Emergency 911 Call Crimes | Interfere with 911 Call