Domestic Assault vs. “Regular” Assault in Minnesota

 

Domestic Assault is generally defined as either “an act intended to cause fear of immediate bodily harm or death” or “an attempt or actual infliction of bodily harm upon another.”  You can read the actual domestic assault statute here (Minn. Stat. §609.2242).

 

Example of Assault: A husband and wife argue in their home.  The husband becomes upset and raises his closed fist at his wife but does not actually strike her.  The wife is frightened by this because she thinks her husband might hit her.  This is considered an assault even though the husband never actually touched his wife.  An assault includes actual touching or an act intending to cause fear (in this case, the husband raising his fist at his wife).

 

Domestic assault is a “regular” assault upon a family or household member (Minn. Stat. §518B.01).  This can include any of the following relationships:

 

• Spouses and former spouses
• Parents and children
• Persons related by blood
• Persons who are presently residing together or who have resided together in the past
• Persons who have a child in common regardless of whether they have been married or have lived together at any time
• A man and woman if the woman is pregnant and the man is alleged to be the father, regardless of whether they have been married or have lived together at any time
• Persons involved in a significant romantic or sexual relationship

 

These definitions are important since it is a common misconception that two persons must actually live together to be in a domestic assault.  Likewise, domestic assaults do not only occur between spouses or between parents and children.

 

Levels of Domestic Assault: Misdemeanor, Gross Misdemeanor and Felony

 

 

Domestic Assaults are known as “enhanceable” offenses in Minnesota.  This means if a person is convicted of domestic assault, any future charges and convictions for assault or “qualified domestic violence-related offenses” will be treated harsher.

 

• Misdemeanor Domestic Assault: First-time offense or no qualified domestic violence-related convictions in the past 10 years
• Gross Misdemeanor Domestic Assault: One prior qualified domestic violence-related conviction in the past 10 years
• Felony Domestic Assault: Two or more qualified domestic violence-related convictions in the past 10 years (maximum punishment of 5 years in prison or $10,000.00, or both)

 

Qualified Domestic Violence-related Offenses in Minnesota

 

 

What is considered a “qualified domestic violence-related offense” under Minn. Stat. §609.02, Subd. 16?  These are violations or attempted violations of any of the following:

 

• Violation of a domestic abuse order for protection
• Violation of a domestic abuse no contact order (DANCO)
• Murder in the First and Second Degree
• Assault in the First, Second, Third, Fourth and Fifth Degree
• Domestic Assault
• Domestic Assault by Strangulation
• Criminal Sexual Conduct in the First, Second, Third or Fourth Degree
• Malicious Punishment of a Child
• Terroristic Threats
• Violation of a Harassment Restraining Order
• Stalking
• Interference with an Emergency Call

 

As you can see, a person with any of these convictions who then commits a domestic assault will face “enhanced” charges and more severe penalties.  Example: A person is charged and convicted of domestic assault.  It is the person’s first charge for domestic assault and they are convicted of a misdemeanor.  Three years later, the same person violates a domestic abuse order for protection and is now charged with a gross misdemeanor which carries a maximum penalty of 1 year in jail or a $3,000.00 fine, or both.

 

Domestic Assault and the Effect on Firearms in Minnesota

 

 

When a person is convicted of domestic assault or assault in the first, second, third or fourth degree, the court must determine the following:

 

• Whether the assault was committed against a family or household member
• Whether a firearm was used in any way during the assault

 

If a firearm was used against a family or household member during the assault, the firearm shall be forfeited under Minn. Stat. 609.5316.  In other words, law enforcement will take the firearm permanently either for their own use or to be destroyed.

 

In addition to forfeiture, if the court determines that a firearm was used in the assault, the person can be prohibited from carrying a firearm anywhere between 3 years to life.  Violation of this order is a gross misdemeanor.  Even if the judge fails to tell the defendant this information, the person can still be charged with the violation.

 

Right to Carry a Pistol

 

 

If a defendant is convicted of fifth-degree assault or domestic assault, and the court determines that the victim was a family or household member, the defendant can be prohibited from carrying a pistol for 3 years from the date of the conviction.  Violating this order is a gross misdemeanor.  Likewise, even if the court fails to tell this information to the defendant, s/he is still bound by the prohibition.

 

A person is also not permitted to carry a pistol if they have been convicted of domestic assault or fifth-degree assault against a family or household member after August 1, 1993.  Violating this law is a gross misdemeanor unless 3 years has passed and the person has not received another fifth-degree assault or domestic assault conviction.

 

Common Defenses

 

 

Some defenses to domestic assault include self-defense, defense of another person, defense of property and false allegations.  It is a common scenario to have one the defendant and the alleged victim as witnesses to the assault.  These cases are often referred to as “he said, she said” scenarios.  Factors to consider in such cases include the credibility of the witnesses and the criminal history of the defendant.  Because an assault case presents different facts and circumstances, it is wise to seek the opinion of a Minneapolis domestic violence attorney on possible defenses and the likelihood of success at trial.

 

What to Expect

 

 

Persons charged and convicted of domestic assault can expect to have their right to carry firearms taken away, as discussed above.  Defendants can also expect a combination of the following: probation usually lasting 2 years, a monetary fine, no contact with the victim, substance abuse counseling or treatment, community service, anger management classes, electronic home monitoring or local jail time.  First-time offenders typically serve no jail time or a very short amount of jail time (such as 2 or 3 days, which oftentimes can be served through community work service or house arrest).  For second and subsequent convictions, these same expectations exist but the length or probation is increased along with the likelihood the person will serve time in local jail.
Each case has unique facts and circumstances.  Furthermore, not every city and county handles domestic assault cases the same way.  Harsher punishment is typically sought in cases where the victim was badly hurt, alcohol or drugs were involved, there is a pattern of abuse, a weapon was involved or where the defendant has prior criminal convictions.

 

Domestic Assault Defense Attorney in Minneapolis, Minnesota

 

 

If you face domestic assault charges in the Twin Cities, call the criminal defense attorneys of Keyser Law Firm of Keyser Law Firm at (612) 338-5007 for a free consultation.  You can also fill out the “Free Consultation” box on this page to directly e-mail our attorneys.  Our fees are affordable and we accept payment plans for select clients.