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Restraining Order

Restraining Orders and No Contact Orders in Minnesota Law

Restraining Order: will government decide your family relationship future?

Restraining Order: will government decide your family’s future?

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.  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:

  • Notice
  • Opportunity to be heard
  • Specific
  • Consequences

Notice:  All restraining orders require notice.  A person is not responsible for obeying any type of restraining order unless they are on notice.  Civil restraining orders like OFPs and HROs must be personally served.  Otherwise, they have no effect.  The judge in a criminal case will provide notice of criminal restraining orders like No Contact Condition of Pretrial Release, and DANCOs both verbally and in writing to the defendant.

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, or fair legal proceedings affecting our life, liberty or property.

An Ex parte restraining order is enforceable after notIce but before an opportunity to be heard; but only on a temporary basis – a matter of days.  An Ex parte Order issues after hearing only from one side.

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 and long-term restraining order only after the affected person has the opportunity to be heard.

Specific:  The restraining order have specific terms about what must not be done.

Consequences:  The order must include the consequences to be suffered if violated. 

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.  One key difference is that the OFP law requires a relationship between the parties while the HRO law does not.

If a person named as a Respondent in either an Order for Protection (OFP) or Harassment Restraining Order (HRO) has contact with the Petitioner or violates its terms, the Respondent can be charged with a crime.

Prosecutors charge these cases as a “Violation of an Order for Protection” or “Violation of a Harassment Restraining Order” as the case may be.  The criminal charges are serious in their consequences.  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 criminal case where the prosecuting attorney claims a relationship and a victim (like a domestic assault case), they will ask the court for both a No Contact Condition of Pretrial Release; and a Domestic Abuse No Contact Order (DANCO).  Though these two types of no contacts orders sound like one thing, they are two separate court orders with important differences.

Pre-trial release conditions – no contact

Cupid & Psyche

Cupid & Psyche

In any criminal case the judge can set conditions of pretrial release, including bail.  In domestic criminal cases, the judge is often asked by the state to include a no-contact condition of pretrial release.

Remedy:  If the defendant violates a condition of pretrial release, the court’s remedies include issuing an arrest warrant and revisiting 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.  It is similar to a civil OFP except that it originates in a criminal case.  It is similar to an OFP in that, unlike a violation of a condition of pretrial release, a violation of a DANCO can be charged as a new, independent crime – with a new court file number and a potential for 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.  Proponents of the DANCO law had this in mind.  A person charged with a domestic crime can post the usually higher, unconditional bail amount with the court and so 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.  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.  The majority of employment screening using criminal history background checks do not check civil court records.  Criminal court records are more important as a result.

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.  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 part of the public record, are still far less damaging than a record of conviction, should one result.

In general, restraining orders tend to have a temporary effect, while in place.  Criminal conviction records are permanent, and have long-term effects.

Right to an Attorney, Thomas Gallagher defends

Right to an Attorney, Thomas Gallagher defends

Do you have a question about a Restraining Order?  Give a call to Thomas Gallagher, Minneapolis Defense Attorney, at 612 333-1500.

Is it possible to avoid a Restraining Order or get rid of one once it already exists?  Like many things, it’s easier to prevent one than to get rid of one already issued by a court.  There are significant differences in how to prevent them, and in how to get rid of them, depending upon what type.

In domestic criminal cases, often the witness did not request and does not want any kind of restraining order or no-contact order.

What about victim’s rights?

Prosecutors and courts almost never ask the alleged victim whether he or 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 agenda.  They recruit 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.  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 by taking away their power to control their own lives and associate as they wish.  This leads many to seek legal advice and representation from a witness lawyer.

Gallagher has been retained as a witness attorney (an attorney counseling and representing a witness) many times over the years.

Gallagher is happy to answer questions by phone.

This article he has written may also be helpful to you: How to Get Rid of a Domestic Abuse No Contact Order in Minnesota.