SF 2438

as introduced - 80th Legislature (1997 - 1998) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act
  1.2             relating to crime; including additional conduct within 
  1.3             the definition of domestic abuse; clarifying that 
  1.4             penalties for violation of an order for protection 
  1.5             apply to orders issued by a judge or referee; amending 
  1.6             Minnesota Statutes 1996, section 518B.01, subdivision 
  1.7             2; Minnesota Statutes 1997 Supplement, section 
  1.8             518B.01, subdivision 14. 
  1.9   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.10     Section 1.  Minnesota Statutes 1996, section 518B.01, 
  1.11  subdivision 2, is amended to read: 
  1.12     Subd. 2.  [DEFINITIONS.] As used in this section, the 
  1.13  following terms shall have the meanings given them:  
  1.14     (a) "Domestic abuse" means the following, if committed 
  1.15  against a family or household member by a family or household 
  1.16  member: 
  1.17     (1) physical harm, bodily injury, or assault; 
  1.18     (2) the infliction of fear of imminent physical harm, 
  1.19  bodily injury, or assault; or 
  1.20     (3) violation of an order for protection; 
  1.21     (4) violation of a restraining order issued under section 
  1.22  518.131 or 609.748; 
  1.23     (5) violation of a no contact order issued under section 
  1.24  629.72; or 
  1.25     (6) terroristic threats, within the meaning of section 
  1.26  609.713, subdivision 1, harassing telephone calls, within the 
  1.27  meaning of section 609.79, subdivision 1, or criminal sexual 
  2.1   conduct, within the meaning of section 609.342, 609.343, 
  2.2   609.344, or 609.345.  
  2.3      (b) "Family or household members" means: 
  2.4      (1) spouses and former spouses; 
  2.5      (2) parents and children; 
  2.6      (3) persons related by blood; 
  2.7      (4) persons who are presently residing together or who have 
  2.8   resided together in the past; 
  2.9      (5) persons who have a child in common regardless of 
  2.10  whether they have been married or have lived together at any 
  2.11  time; 
  2.12     (6) a man and woman if the woman is pregnant and the man is 
  2.13  alleged to be the father, regardless of whether they have been 
  2.14  married or have lived together at any time; and 
  2.15     (7) persons involved in a significant romantic or sexual 
  2.16  relationship. 
  2.17     Issuance of an order for protection on the ground in clause 
  2.18  (6) does not affect a determination of paternity under sections 
  2.19  257.51 to 257.74.  In determining whether persons are or have 
  2.20  been involved in a significant romantic or sexual relationship 
  2.21  under clause (7), the court shall consider the length of time of 
  2.22  the relationship; type of relationship; frequency of interaction 
  2.23  between the parties; and, if the relationship has terminated, 
  2.24  length of time since the termination. 
  2.25     Sec. 2.  Minnesota Statutes 1997 Supplement, section 
  2.26  518B.01, subdivision 14, is amended to read: 
  2.27     Subd. 14.  [VIOLATION OF AN ORDER FOR PROTECTION.] (a) A 
  2.28  person who violates an order for protection issued under this 
  2.29  section by a judge or referee is subject to the penalties 
  2.30  provided in paragraphs (b) to (d).  
  2.31     (b) Except as otherwise provided in paragraphs (c) and (d), 
  2.32  whenever an order for protection is granted pursuant to this 
  2.33  section by a judge or referee, or a similar law of another 
  2.34  state, and the respondent or person to be restrained knows of 
  2.35  the order, violation of the order for protection is a 
  2.36  misdemeanor.  Upon a misdemeanor conviction under this 
  3.1   paragraph, the defendant must be sentenced to a minimum of three 
  3.2   days imprisonment and must be ordered to participate in 
  3.3   counseling or other appropriate programs selected by the court.  
  3.4   If the court stays imposition or execution of the jail sentence 
  3.5   and the defendant refuses or fails to comply with the court's 
  3.6   treatment order, the court must impose and execute the stayed 
  3.7   jail sentence.  A violation of an order for protection shall 
  3.8   also constitute contempt of court and be subject to the 
  3.9   penalties provided in chapter 588. 
  3.10     (c) A person is guilty of a gross misdemeanor who knowingly 
  3.11  violates this subdivision during the time period between a 
  3.12  previous conviction under this subdivision; sections 609.221 to 
  3.13  609.224; 609.2242; 609.713, subdivision 1 or 3; 609.748, 
  3.14  subdivision 6; 609.749; or a similar law of another state; and 
  3.15  the end of the five years following discharge from sentence for 
  3.16  that conviction.  Upon a gross misdemeanor conviction under this 
  3.17  paragraph, the defendant must be sentenced to a minimum of ten 
  3.18  days imprisonment and must be ordered to participate in 
  3.19  counseling or other appropriate programs selected by the court.  
  3.20  Notwithstanding section 609.135, the court must impose and 
  3.21  execute the minimum sentence provided in this paragraph for 
  3.22  gross misdemeanor convictions. 
  3.23     (d) A person is guilty of a felony and may be sentenced to 
  3.24  imprisonment for not more than five years or to payment of a 
  3.25  fine of not more than $10,000, or both, if the person knowingly 
  3.26  violates this subdivision: 
  3.27     (1) during the time period between the first of two or more 
  3.28  previous convictions under this section or sections 609.221 to 
  3.29  609.224; 609.2242; 609.713, subdivision 1 or 3; 609.748, 
  3.30  subdivision 6; 609.749; or a similar law of another state; and 
  3.31  the end of the five years following discharge from sentence for 
  3.32  that conviction; or 
  3.33     (2) while possessing a dangerous weapon, as defined in 
  3.34  section 609.02, subdivision 6. 
  3.35  Upon a felony conviction under this paragraph in which the court 
  3.36  stays imposition or execution of sentence, the court shall 
  4.1   impose at least a 30-day period of incarceration as a condition 
  4.2   of probation.  The court also shall order that the defendant 
  4.3   participate in counseling or other appropriate programs selected 
  4.4   by the court.  Notwithstanding section 609.135, the court must 
  4.5   impose and execute the minimum sentence provided in this 
  4.6   paragraph for felony convictions. 
  4.7      (e) A peace officer shall arrest without a warrant and take 
  4.8   into custody a person whom the peace officer has probable cause 
  4.9   to believe has violated an order granted pursuant to this 
  4.10  section or a similar law of another state restraining the person 
  4.11  or excluding the person from the residence or the petitioner's 
  4.12  place of employment, even if the violation of the order did not 
  4.13  take place in the presence of the peace officer, if the 
  4.14  existence of the order can be verified by the officer.  The 
  4.15  person shall be held in custody for at least 36 hours, excluding 
  4.16  the day of arrest, Sundays, and holidays, unless the person is 
  4.17  released earlier by a judge or judicial officer.  A peace 
  4.18  officer acting in good faith and exercising due care in making 
  4.19  an arrest pursuant to this paragraph is immune from civil 
  4.20  liability that might result from the officer's actions. 
  4.21     (f) If the court finds that the respondent has violated an 
  4.22  order for protection and that there is reason to believe that 
  4.23  the respondent will commit a further violation of the provisions 
  4.24  of the order restraining the respondent from committing acts of 
  4.25  domestic abuse or excluding the respondent from the petitioner's 
  4.26  residence, the court may require the respondent to acknowledge 
  4.27  an obligation to comply with the order on the record.  The court 
  4.28  may require a bond sufficient to deter the respondent from 
  4.29  committing further violations of the order for protection, 
  4.30  considering the financial resources of the respondent, and not 
  4.31  to exceed $10,000.  If the respondent refuses to comply with an 
  4.32  order to acknowledge the obligation or post a bond under this 
  4.33  paragraph, the court shall commit the respondent to the county 
  4.34  jail during the term of the order for protection or until the 
  4.35  respondent complies with the order under this paragraph.  The 
  4.36  warrant must state the cause of commitment, with the sum and 
  5.1   time for which any bond is required.  If an order is issued 
  5.2   under this paragraph, the court may order the costs of the 
  5.3   contempt action, or any part of them, to be paid by the 
  5.4   respondent.  An order under this paragraph is appealable.  
  5.5      (g) Upon the filing of an affidavit by the petitioner, any 
  5.6   peace officer, or an interested party designated by the court, 
  5.7   alleging that the respondent has violated any order for 
  5.8   protection granted pursuant to this section or a similar law of 
  5.9   another state, the court may issue an order to the respondent, 
  5.10  requiring the respondent to appear and show cause within 14 days 
  5.11  why the respondent should not be found in contempt of court and 
  5.12  punished therefor.  The hearing may be held by the court in any 
  5.13  county in which the petitioner or respondent temporarily or 
  5.14  permanently resides at the time of the alleged violation, or in 
  5.15  the county in which the alleged violation occurred, if the 
  5.16  petitioner and respondent do not reside in this state.  The 
  5.17  court also shall refer the violation of the order for protection 
  5.18  to the appropriate prosecuting authority for possible 
  5.19  prosecution under paragraph (b), (c), or (d). 
  5.20     (h) If it is alleged that the respondent has violated an 
  5.21  order for protection issued under subdivision 6 or a similar law 
  5.22  of another state and the court finds that the order has expired 
  5.23  between the time of the alleged violation and the court's 
  5.24  hearing on the violation, the court may grant a new order for 
  5.25  protection under subdivision 6 based solely on the respondent's 
  5.26  alleged violation of the prior order, to be effective until the 
  5.27  hearing on the alleged violation of the prior order.  If the 
  5.28  court finds that the respondent has violated the prior order, 
  5.29  the relief granted in the new order for protection shall be 
  5.30  extended for a fixed period, not to exceed one year, except when 
  5.31  the court determines a longer fixed period is appropriate. 
  5.32     (i) The admittance into petitioner's dwelling of an abusing 
  5.33  party excluded from the dwelling under an order for protection 
  5.34  is not a violation by the petitioner of the order for protection.
  5.35     A peace officer is not liable under section 609.43, clause 
  5.36  (1), for a failure to perform a duty required by paragraph (e). 
  6.1      (j) When a person is convicted under paragraph (b) or (c) 
  6.2   of violating an order for protection and the court determines 
  6.3   that the person used a firearm in any way during commission of 
  6.4   the violation, the court may order that the person is prohibited 
  6.5   from possessing any type of firearm for any period longer than 
  6.6   three years or for the remainder of the person's life.  A person 
  6.7   who violates this paragraph is guilty of a gross misdemeanor.  
  6.8   At the time of the conviction, the court shall inform the 
  6.9   defendant whether and for how long the defendant is prohibited 
  6.10  from possessing a firearm and that it is a gross misdemeanor to 
  6.11  violate this paragraph.  The failure of the court to provide 
  6.12  this information to a defendant does not affect the 
  6.13  applicability of the firearm possession prohibition or the gross 
  6.14  misdemeanor penalty to that defendant. 
  6.15     (k) Except as otherwise provided in paragraph (j), when a 
  6.16  person is convicted under paragraph (b) or (c) of violating an 
  6.17  order for protection, the court shall inform the defendant that 
  6.18  the defendant is prohibited from possessing a pistol for three 
  6.19  years from the date of conviction and that it is a gross 
  6.20  misdemeanor offense to violate this prohibition.  The failure of 
  6.21  the court to provide this information to a defendant does not 
  6.22  affect the applicability of the pistol possession prohibition or 
  6.23  the gross misdemeanor penalty to that defendant. 
  6.24     (l) Except as otherwise provided in paragraph (j), a person 
  6.25  is not entitled to possess a pistol if the person has been 
  6.26  convicted under paragraph (b) or (c) after August 1, 1996, of 
  6.27  violating an order for protection, unless three years have 
  6.28  elapsed from the date of conviction and, during that time, the 
  6.29  person has not been convicted of any other violation of this 
  6.30  section.  Property rights may not be abated but access may be 
  6.31  restricted by the courts.  A person who possesses a pistol in 
  6.32  violation of this paragraph is guilty of a gross misdemeanor. 
  6.33     (m) If the court determines that a person convicted under 
  6.34  paragraph (b) or (c) of violating an order for protection owns 
  6.35  or possesses a firearm and used it in any way during the 
  6.36  commission of the violation, it shall order that the firearm be 
  7.1   summarily forfeited under section 609.5316, subdivision 3. 
  7.2      Sec. 3.  [EFFECTIVE DATE.] 
  7.3      Sections 1 and 2 are effective August 1, 1998, and apply to 
  7.4   crimes committed on or after that date.