Restraining Orders and No Contact Orders in Minnesota Law
There is more than one type of Restraining Order in Minnesota law. Here are the most important:
- Order for Protection (OFP)
- Harassment Restraining Order (HRO)
- No Contact Condition of Pretrial Release
- Domestic Abuse No Contact Order (DANCO)
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 DANCO. But judges almost never 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, common features:
- Opportunity to be heard
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. Otherwise, they have no effect.
But the judge in a criminal case will provide notice of criminal restraining orders verbally and in writing to the defendant. And these include both No Contact Condition of Pretrial Release, and DANCOs.
Opportunity to be heard: The core features of due process are: Notice; and the opportunity to be heard by a fair and neutral magistrate (judge). Each of us has the constitutional right to due process, or fair legal proceedings affecting our life, liberty or property.
An Ex parte restraining order can be enforced after notIce, and before an opportunity to be heard. But an ex parte order can only be enforced on a temporary basis – a matter of days. An Ex parte Order issues after hearing only from one side.
So, ex parte restraining orders have less legal effect in several ways. 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.
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 law 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 violates its terms; the prosecutor charges the Respondent with a crime.
Prosecutors 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 case restraining order > criminal law consequences
In a pending domestic criminal cases, the prosecutor 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 may sound like one thing. But they are two separate court orders with important differences.
Pre-trial release conditions – no contact
Remedy: If the defendant violates a condition of pretrial release, the court can issue an arrest warrant and revisit the issue of pretrial release. (Pretrial release concerns mainly the court’s assuring defendant appearance at future court appearances, through trial or sentencing if any.)
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 Domestic Abuse No Contact Order, or DANCO in Minnesota?
The Domestic Abuse No Contact Order, often referred to by its acronym, DANCO, is a more recent development. And it is similar to a civil OFP. But 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 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 can avoid a no-contact condition of pretrial release.
But the DANCO imposed remains 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 unconditional money-only bail.
Do restraining orders go on your public record? Show up on a background check?
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 do not check civil court records. So criminal court records are more important.
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.
Criminal court records, on the other hand, can cause problems. They are public. 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 tend to have a temporary effect, while in place. (One example is the temporary suspension of gun rights while an OFP is in effect.) But criminal conviction records are permanent, and have long-term effects.
Is it possible to avoid a Restraining Order or get rid of one once it already exists? Like so many things, prevention is easier than getting rid of one. How to prevent them, and how to get rid of them, varies depending upon which type.
In domestic criminal cases, the witness often did not request, and does not want, any restraining order or no-contact order.
Do you have a question about a Restraining Order? Give a call to Thomas Gallagher, Minneapolis Defense Attorney, at 612 333-1500.
What about victim’s rights?
Prosecutors and courts almost never ask the alleged victim whether she wants a no contact order; and if they say they don’t, courts usually issue the no contacts orders initially.
Most so-called victim advocates promote the prosecution’s agenda. They recruit and groom the victim as a prosecution tool. The prosecutor discards the victim after use. There are a rare few victim advocates actually deserving of that title.
So many alleged victims retain a lawyer of their own to make their voices heard.
When their Solution is your Problem
The legal system in Minnesota generally 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 lawyer.
Many have retained Thomas Gallagher as a witness attorney.
And you can read his article here: How to Get Rid of a Domestic Abuse No Contact Order in Minnesota.