SF 2911

1st Engrossment - 84th Legislature (2005 - 2006) Posted on 12/15/2009 12:00am

A bill for an act
relating to crimes; creating enhanced penalties for the crimes of violating a
domestic abuse no contact order, assault in the fifth degree, domestic assault,
violating an harassment restraining order, and harassment and stalking; adding
the crime of violating a domestic abuse no contact order to the list of qualified
domestic violence-related offenses; amending Minnesota Statutes 2004, sections
518B.01, subdivision 14; 609.224, subdivisions 2, 4; 609.2242, subdivisions 2,
4; 609.748, subdivision 6; 609.749, subdivision 4; Minnesota Statutes 2005
Supplement, sections 518B.01, subdivision 22; 609.02, subdivision 16.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2004, section 518B.01, subdivision 14, is amended to
read:

Subd. 14.

Violation of an order for protection.

(a) A person who violates an
order for protection issued by a judge or referee is subject to the penalties provided
in paragraphs (b) to (d).

(b) Except as otherwise provided in paragraphs (c) and (d), whenever an order for
protection is granted by a judge or referee or pursuant to a similar law of another state,
the United States, the District of Columbia, tribal lands, or United States territories, and
the respondent or person to be restrained knows of the existence of the order, violation of
the order for protection is a misdemeanor. Upon a misdemeanor conviction under this
paragraph, the defendant must be sentenced to a minimum of three days imprisonment and
must be ordered to participate in counseling or other appropriate programs selected by
the court. If the court stays imposition or execution of the jail sentence and the defendant
refuses or fails to comply with the court's treatment order, the court must impose and
execute the stayed jail sentence. A violation of an order for protection shall also constitute
contempt of court and be subject to the penalties provided in chapter 588.

(c) A person is guilty of a gross misdemeanor who knowingly violates this
subdivision deleted text begin during the time period between deleted text end new text begin within ten years of new text end a previous qualified
domestic violence-related offense conviction deleted text begin and the end of the five years following
discharge from sentence for that offense deleted text end new text begin or adjudication of delinquency new text end . Upon a gross
misdemeanor conviction under this paragraph, the defendant must be sentenced to a
minimum of ten days imprisonment and must be ordered to participate in counseling or
other appropriate programs selected by the court. Notwithstanding section 609.135, the
court must impose and execute the minimum sentence provided in this paragraph for
gross misdemeanor convictions.

(d) A person is guilty of a felony and may be sentenced to imprisonment for not
more than five years or to payment of a fine of not more than $10,000, or both, if the
person knowingly violates this subdivision:

(1) deleted text begin during the time period between deleted text end new text begin within ten years of new text end the first of two or more
previous qualified domestic violence-related offense convictions deleted text begin and the end of the five
years following discharge from sentence for that offense deleted text end new text begin or adjudications of delinquency new text end ;
or

(2) while possessing a dangerous weapon, as defined in section 609.02, subdivision 6.

Upon a felony conviction under this paragraph in which the court stays imposition or
execution of sentence, the court shall impose at least a 30-day period of incarceration
as a condition of probation. The court also shall order that the defendant participate in
counseling or other appropriate programs selected by the court. Notwithstanding section
609.135, the court must impose and execute the minimum sentence provided in this
paragraph for felony convictions.

(e) A peace officer shall arrest without a warrant and take into custody a person
whom the peace officer has probable cause to believe has violated an order granted
pursuant to this section or a similar law of another state, the United States, the District of
Columbia, tribal lands, or United States territories restraining the person or excluding the
person from the residence or the petitioner's place of employment, even if the violation
of the order did not take place in the presence of the peace officer, if the existence of the
order can be verified by the officer. The probable cause required under this paragraph
includes probable cause that the person knows of the existence of the order. If the order
has not been served, the officer shall immediately serve the order whenever reasonably
safe and possible to do so. An order for purposes of this subdivision, includes the short
form order described in subdivision 8a. When the order is first served upon the person
at a location at which, under the terms of the order, the person's presence constitutes a
violation, the person shall not be arrested for violation of the order without first being
given a reasonable opportunity to leave the location in the presence of the peace officer.
A person arrested under this paragraph shall be held in custody for at least 36 hours,
excluding the day of arrest, Sundays, and holidays, unless the person is released earlier by
a judge or judicial officer. A peace officer acting in good faith and exercising due care
in making an arrest pursuant to this paragraph is immune from civil liability that might
result from the officer's actions.

(f) If the court finds that the respondent has violated an order for protection and
that there is reason to believe that the respondent will commit a further violation of the
provisions of the order restraining the respondent from committing acts of domestic abuse
or excluding the respondent from the petitioner's residence, the court may require the
respondent to acknowledge an obligation to comply with the order on the record. The court
may require a bond sufficient to deter the respondent from committing further violations
of the order for protection, considering the financial resources of the respondent, and not
to exceed $10,000. If the respondent refuses to comply with an order to acknowledge the
obligation or post a bond under this paragraph, the court shall commit the respondent to
the county jail during the term of the order for protection or until the respondent complies
with the order under this paragraph. The warrant must state the cause of commitment,
with the sum and time for which any bond is required. If an order is issued under this
paragraph, the court may order the costs of the contempt action, or any part of them, to be
paid by the respondent. An order under this paragraph is appealable.

(g) Upon the filing of an affidavit by the petitioner, any peace officer, or an interested
party designated by the court, alleging that the respondent has violated any order for
protection granted pursuant to this section or a similar law of another state, the United
States, the District of Columbia, tribal lands, or United States territories, the court may
issue an order to the respondent, requiring the respondent to appear and show cause within
14 days why the respondent should not be found in contempt of court and punished
therefor. The hearing may be held by the court in any county in which the petitioner or
respondent temporarily or permanently resides at the time of the alleged violation, or in
the county in which the alleged violation occurred, if the petitioner and respondent do not
reside in this state. The court also shall refer the violation of the order for protection to the
appropriate prosecuting authority for possible prosecution under paragraph (b), (c), or (d).

(h) If it is alleged that the respondent has violated an order for protection issued under
subdivision 6 or a similar law of another state, the United States, the District of Columbia,
tribal lands, or United States territories, and the court finds that the order has expired
between the time of the alleged violation and the court's hearing on the violation, the court
may grant a new order for protection under subdivision 6 based solely on the respondent's
alleged violation of the prior order, to be effective until the hearing on the alleged violation
of the prior order. If the court finds that the respondent has violated the prior order, the
relief granted in the new order for protection shall be extended for a fixed period, not to
exceed one year, except when the court determines a longer fixed period is appropriate.

(i) The admittance into petitioner's dwelling of an abusing party excluded from the
dwelling under an order for protection is not a violation by the petitioner of the order
for protection.

A peace officer is not liable under section 609.43, clause (1), for a failure to perform
a duty required by paragraph (e).

(j) When a person is convicted under paragraph (b) or (c) of violating an order for
protection and the court determines that the person used a firearm in any way during
commission of the violation, the court may order that the person is prohibited from
possessing any type of firearm for any period longer than three years or for the remainder
of the person's life. A person who violates this paragraph is guilty of a gross misdemeanor.
At the time of the conviction, the court shall inform the defendant whether and for
how long the defendant is prohibited from possessing a firearm and that it is a gross
misdemeanor to violate this paragraph. The failure of the court to provide this information
to a defendant does not affect the applicability of the firearm possession prohibition or the
gross misdemeanor penalty to that defendant.

(k) Except as otherwise provided in paragraph (j), when a person is convicted
under paragraph (b) or (c) of violating an order for protection, the court shall inform
the defendant that the defendant is prohibited from possessing a pistol for three years
from the date of conviction and that it is a gross misdemeanor offense to violate this
prohibition. The failure of the court to provide this information to a defendant does not
affect the applicability of the pistol possession prohibition or the gross misdemeanor
penalty to that defendant.

(l) Except as otherwise provided in paragraph (j), a person is not entitled to possess a
pistol if the person has been convicted under paragraph (b) or (c) after August 1, 1996,
of violating an order for protection, unless three years have elapsed from the date of
conviction and, during that time, the person has not been convicted of any other violation
of this section. Property rights may not be abated but access may be restricted by the
courts. A person who possesses a pistol in violation of this paragraph is guilty of a gross
misdemeanor.

(m) If the court determines that a person convicted under paragraph (b) or (c) of
violating an order for protection owns or possesses a firearm and used it in any way during
the commission of the violation, it shall order that the firearm be summarily forfeited
under section 609.5316, subdivision 3.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2006, and applies to crimes
committed on or after that date.
new text end

Sec. 2.

Minnesota Statutes 2005 Supplement, section 518B.01, subdivision 22, is
amended to read:

Subd. 22.

Domestic abuse no contact order.

(a) A domestic abuse no contact order
is an order issued by a court against a defendant in a criminal proceeding for:

(1) domestic abuse;

(2) harassment or stalking charged under section 609.749 and committed against
a family or household member;

(3) violation of an order for protection charged under subdivision 14; or

(4) violation of a prior domestic abuse no contact order charged under this
subdivision.

It includes pretrial orders before final disposition of the case and probationary orders
after sentencing.

(b) A person who knows of the existence of a domestic abuse no contact order issued
against the person and violates the order is guilty of a misdemeanor.

(c) new text begin A person is guilty of a gross misdemeanor who knowingly violates this
subdivision within ten years of a previous qualified domestic violence-related offense
conviction or adjudication of delinquency.
new text end

new text begin (d) new text end A peace officer shall arrest without a warrant and take into custody a person
whom the peace officer has probable cause to believe has violated a domestic abuse no
contact order, even if the violation of the order did not take place in the presence of the
peace officer, if the existence of the order can be verified by the officer. The person shall
be held in custody for at least 36 hours, excluding the day of arrest, Sundays, and holidays,
unless the person is released earlier by a judge or judicial officer. A peace officer acting
in good faith and exercising due care in making an arrest pursuant to this paragraph is
immune from civil liability that might result from the officer's actions.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2006, and applies to crimes
committed on or after that date.
new text end

Sec. 3.

Minnesota Statutes 2005 Supplement, section 609.02, subdivision 16, is
amended to read:

Subd. 16.

Qualified domestic violence-related offense.

"Qualified domestic
violence-related offense" includes the following offenses: sections 518B.01, subdivision
14 (violation of domestic abuse order for protection); new text begin 518B.01, subdivision 22
(violation of domestic abuse no contact order); new text end 609.221 (first-degree assault); 609.222
(second-degree assault); 609.223 (third-degree assault); 609.2231 (fourth-degree assault);
609.224 (fifth-degree assault); 609.2242 (domestic assault); 609.2247 (domestic assault
by strangulation); 609.342 (first-degree criminal sexual conduct); 609.343 (second-degree
criminal sexual conduct); 609.344 (third-degree criminal sexual conduct); 609.345
(fourth-degree criminal sexual conduct); 609.377 (malicious punishment of a child);
609.713 (terroristic threats); 609.748, subdivision 6 (violation of harassment restraining
order); deleted text begin and deleted text end 609.749 (harassment/stalking); new text begin and 609.78, subdivision 2 (interference with
an emergency call); new text end and similar laws of other states, the United States, the District of
Columbia, tribal lands, and United States territories.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2006, and applies to crimes
committed on or after that date.
new text end

Sec. 4.

Minnesota Statutes 2004, section 609.224, subdivision 2, is amended to read:

Subd. 2.

Gross misdemeanor.

(a) Whoever violates the provisions of subdivision
1 against the same victim deleted text begin during the time period between deleted text end new text begin within ten years of new text end a previous
qualified domestic violence-related offense conviction or adjudication of delinquency deleted text begin and
the end of the five years following discharge from sentence or disposition for that offense, deleted text end
is guilty of a gross misdemeanor and may be sentenced to imprisonment for not more than
one year or to payment of a fine of not more than $3,000, or both.

(b) Whoever violates the provisions of subdivision 1 within deleted text begin two deleted text end new text begin three new text end years of
a previous qualified domestic violence-related offense conviction or adjudication of
delinquency is guilty of a gross misdemeanor and may be sentenced to imprisonment for
not more than one year or to payment of a fine of not more than $3,000, or both.

(c) A caregiver, as defined in section 609.232, who is an individual and who violates
the provisions of subdivision 1 against a vulnerable adult, as defined in section 609.232, is
guilty of a gross misdemeanor and may be sentenced to imprisonment for not more than
one year or to payment of a fine of not more than $3,000, or both.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2006, and applies to crimes
committed on or after that date.
new text end

Sec. 5.

Minnesota Statutes 2004, section 609.224, subdivision 4, is amended to read:

Subd. 4.

Felony.

(a) Whoever violates the provisions of subdivision 1 against
the same victim deleted text begin during the time period between deleted text end new text begin within ten years of new text end the first of any
combination of two or more previous qualified domestic violence-related offense
convictions or adjudications of delinquency deleted text begin and the end of the five years following
discharge from sentence or disposition for that offense deleted text end is guilty of a felony and may be
sentenced to imprisonment for not more than five years or payment of a fine of not more
than $10,000, or both.

(b) Whoever violates the provisions of subdivision 1 within three years of the first
of any combination of two or more previous qualified domestic violence-related offense
convictions or adjudications of delinquency is guilty of a felony and may be sentenced
to imprisonment for not more than five years or to payment of a fine of not more than
$10,000, or both.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2006, and applies to crimes
committed on or after that date.
new text end

Sec. 6.

Minnesota Statutes 2004, section 609.2242, subdivision 2, is amended to read:

Subd. 2.

Gross misdemeanor.

Whoever violates subdivision 1 deleted text begin during the time
period between deleted text end new text begin within ten years of new text end a previous qualified domestic violence-related
offense conviction or adjudication of delinquency against a family or household member
as defined in section 518B.01, subdivision 2, deleted text begin and the end of the five years following
discharge from sentence or disposition for that offense deleted text end is guilty of a gross misdemeanor
and may be sentenced to imprisonment for not more than one year or to payment of a fine
of not more than $3,000, or both.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2006, and applies to crimes
committed on or after that date.
new text end

Sec. 7.

Minnesota Statutes 2004, section 609.2242, subdivision 4, is amended to read:

Subd. 4.

Felony.

Whoever violates the provisions of this section or section 609.224,
subdivision 1, against the same victim deleted text begin during the time period between deleted text end new text begin within ten years of new text end
the first of any combination of two or more previous qualified domestic violence-related
offense convictions or adjudications of delinquency deleted text begin and the end of the five years following
discharge from sentence or disposition for that offense deleted text end is guilty of a felony and may be
sentenced to imprisonment for not more than five years or payment of a fine of not more
than $10,000, or both.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2006, and applies to crimes
committed on or after that date.
new text end

Sec. 8.

Minnesota Statutes 2004, section 609.748, subdivision 6, is amended to read:

Subd. 6.

Violation of restraining order.

(a) A person who violates a restraining
order issued under this section is subject to the penalties provided in paragraphs (b) to (d).

(b) Except as otherwise provided in paragraphs (c) and (d), when a temporary
restraining order or a restraining order is granted under this section and the respondent
knows of the order, violation of the order is a misdemeanor.

(c) A person is guilty of a gross misdemeanor who knowingly violates the order
deleted text begin during the time period between deleted text end new text begin within ten years of new text end a previous qualified domestic
violence-related offense conviction deleted text begin and the end of the five years following discharge from
sentence for that offense deleted text end new text begin or adjudication of delinquency new text end .

(d) A person is guilty of a felony and may be sentenced to imprisonment for not
more than five years or to payment of a fine of not more than $10,000, or both, if the
person knowingly violates the order:

(1) deleted text begin during the time period between deleted text end new text begin within ten years of new text end the first of two or more
previous qualified domestic violence-related offense convictions deleted text begin and the end of the five
years following discharge from sentence for that offense deleted text end new text begin or adjudications of delinquency new text end ;

(2) because of the victim's or another's actual or perceived race, color, religion, sex,
sexual orientation, disability as defined in section 363A.03, age, or national origin;

(3) by falsely impersonating another;

(4) while possessing a dangerous weapon;

(5) with an intent to influence or otherwise tamper with a juror or a judicial
proceeding or with intent to retaliate against a judicial officer, as defined in section
609.415, or a prosecutor, defense attorney, or officer of the court, because of that person's
performance of official duties in connection with a judicial proceeding; or

(6) against a victim under the age of 18, if the respondent is more than 36 months
older than the victim.

(e) A peace officer shall arrest without a warrant and take into custody a person
whom the peace officer has probable cause to believe has violated an order issued under
subdivision 4 or 5 if the existence of the order can be verified by the officer.

(f) A violation of a temporary restraining order or restraining order shall also
constitute contempt of court.

(g) Upon the filing of an affidavit by the petitioner, any peace officer, or an interested
party designated by the court, alleging that the respondent has violated an order issued
under subdivision 4 or 5, the court may issue an order to the respondent requiring the
respondent to appear within 14 days and show cause why the respondent should not be
held in contempt of court. The court also shall refer the violation of the order to the
appropriate prosecuting authority for possible prosecution under paragraph (b), (c), or (d).

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2006, and applies to crimes
committed on or after that date.
new text end

Sec. 9.

Minnesota Statutes 2004, section 609.749, subdivision 4, is amended to read:

Subd. 4.

Second or subsequent violations; felony.

(a) A person is guilty of a
felony who violates any provision of subdivision 2 deleted text begin during the time period between deleted text end
new text begin within ten years of new text end a previous qualified domestic violence-related offense conviction
or adjudication of delinquency deleted text begin and the end of the ten years following discharge from
sentence or disposition for that offense deleted text end , and may be sentenced to imprisonment for not
more than five years or to payment of a fine of not more than $10,000, or both.

(b) A person is guilty of a felony who violates any provision of subdivision 2 deleted text begin during
the time period between deleted text end new text begin within ten years of new text end the first of two or more previous qualified
domestic violence-related offense convictions or adjudications of delinquency deleted text begin and the
end of ten years following discharge from sentence or disposition for that offense deleted text end , and
may be sentenced to imprisonment for not more than ten years or to payment of a fine of
not more than $20,000, or both.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2006, and applies to crimes
committed on or after that date.
new text end