1st Engrossment - 82nd Legislature (2001 - 2002) Posted on 12/15/2009 12:00am
1.1 A bill for an act 1.2 relating to domestic abuse; clarifying the standard 1.3 for a misdemeanor violation of an order for protection 1.4 or no contact order; amending Minnesota Statutes 2000, 1.5 section 518B.01, subdivision 22; Minnesota Statutes 1.6 2001 Supplement, section 518B.01, subdivision 14. 1.7 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.8 Section 1. Minnesota Statutes 2001 Supplement, section 1.9 518B.01, subdivision 14, is amended to read: 1.10 Subd. 14. [VIOLATION OF AN ORDER FOR PROTECTION.] (a) A 1.11 person who violates an order for protection issued by a judge or 1.12 referee is subject to the penalties provided in paragraphs (b) 1.13 to (d). 1.14 (b) Except as otherwise provided in paragraphs (c) and (d), 1.15 whenever an order for protection is granted by a judge or 1.16 referee or pursuant to a similar law of another state, the 1.17 United States, the District of Columbia, tribal lands, or United 1.18 States territories, and the respondent or person to be 1.19 restrained knows of the existence of the order, violation of the 1.20 order for protection is a misdemeanor. Upon a misdemeanor 1.21 conviction under this paragraph, the defendant must be sentenced 1.22 to a minimum of three days imprisonment and must be ordered to 1.23 participate in counseling or other appropriate programs selected 1.24 by the court. If the court stays imposition or execution of the 1.25 jail sentence and the defendant refuses or fails to comply with 1.26 the court's treatment order, the court must impose and execute 2.1 the stayed jail sentence. A violation of an order for 2.2 protection shall also constitute contempt of court and be 2.3 subject to the penalties provided in chapter 588. 2.4 (c) A person is guilty of a gross misdemeanor who knowingly 2.5 violates this subdivision during the time period between a 2.6 previous qualified domestic violence-related offense conviction 2.7 and the end of the five years following discharge from sentence 2.8 for that offense. Upon a gross misdemeanor conviction under 2.9 this paragraph, the defendant must be sentenced to a minimum of 2.10 ten days imprisonment and must be ordered to participate in 2.11 counseling or other appropriate programs selected by the court. 2.12 Notwithstanding section 609.135, the court must impose and 2.13 execute the minimum sentence provided in this paragraph for 2.14 gross misdemeanor convictions. 2.15 (d) A person is guilty of a felony and may be sentenced to 2.16 imprisonment for not more than five years or to payment of a 2.17 fine of not more than $10,000, or both, if the person knowingly 2.18 violates this subdivision: 2.19 (1) during the time period between the first of two or more 2.20 previous qualified domestic violence-related offense convictions 2.21 and the end of the five years following discharge from sentence 2.22 for that offense; or 2.23 (2) while possessing a dangerous weapon, as defined in 2.24 section 609.02, subdivision 6. 2.25 Upon a felony conviction under this paragraph in which the court 2.26 stays imposition or execution of sentence, the court shall 2.27 impose at least a 30-day period of incarceration as a condition 2.28 of probation. The court also shall order that the defendant 2.29 participate in counseling or other appropriate programs selected 2.30 by the court. Notwithstanding section 609.135, the court must 2.31 impose and execute the minimum sentence provided in this 2.32 paragraph for felony convictions. 2.33 (e) A peace officer shall arrest without a warrant and take 2.34 into custody a person whom the peace officer has probable cause 2.35 to believe has violated an order granted pursuant to this 2.36 section or a similar law of another state, the United States, 3.1 the District of Columbia, tribal lands, or United States 3.2 territories restraining the person or excluding the person from 3.3 the residence or the petitioner's place of employment, even if 3.4 the violation of the order did not take place in the presence of 3.5 the peace officer, if the existence of the order can be verified 3.6 by the officer. The probable cause required under this 3.7 paragraph includes probable cause that the person
knowingly3.8 violated the orderknows of the existence of the order. If the 3.9 order has not been served, the officer shall immediately serve 3.10 the order whenever possible. An order for purposes of this 3.11 subdivision, includes the short form order described in 3.12 subdivision 8a. When the order is first served upon the person 3.13 at a location at which, under the terms of the order, the 3.14 person's presence constitutes a violation, the person shall not 3.15 be arrested for violation of the order but shall bewithout 3.16 first being given a reasonable opportunity to leave the location 3.17 in the presence of the peace officer. A person arrested under 3.18 this paragraph shall be held in custody for at least 36 hours, 3.19 excluding the day of arrest, Sundays, and holidays, unless the 3.20 person is released earlier by a judge or judicial officer. A 3.21 peace officer acting in good faith and exercising due care in 3.22 making an arrest pursuant to this paragraph is immune from civil 3.23 liability that might result from the officer's actions. 3.24 (f) If the court finds that the respondent has violated an 3.25 order for protection and that there is reason to believe that 3.26 the respondent will commit a further violation of the provisions 3.27 of the order restraining the respondent from committing acts of 3.28 domestic abuse or excluding the respondent from the petitioner's 3.29 residence, the court may require the respondent to acknowledge 3.30 an obligation to comply with the order on the record. The court 3.31 may require a bond sufficient to deter the respondent from 3.32 committing further violations of the order for protection, 3.33 considering the financial resources of the respondent, and not 3.34 to exceed $10,000. If the respondent refuses to comply with an 3.35 order to acknowledge the obligation or post a bond under this 3.36 paragraph, the court shall commit the respondent to the county 4.1 jail during the term of the order for protection or until the 4.2 respondent complies with the order under this paragraph. The 4.3 warrant must state the cause of commitment, with the sum and 4.4 time for which any bond is required. If an order is issued 4.5 under this paragraph, the court may order the costs of the 4.6 contempt action, or any part of them, to be paid by the 4.7 respondent. An order under this paragraph is appealable. 4.8 (g) Upon the filing of an affidavit by the petitioner, any 4.9 peace officer, or an interested party designated by the court, 4.10 alleging that the respondent has violated any order for 4.11 protection granted pursuant to this section or a similar law of 4.12 another state, the United States, the District of Columbia, 4.13 tribal lands, or United States territories, the court may issue 4.14 an order to the respondent, requiring the respondent to appear 4.15 and show cause within 14 days why the respondent should not be 4.16 found in contempt of court and punished therefor. The hearing 4.17 may be held by the court in any county in which the petitioner 4.18 or respondent temporarily or permanently resides at the time of 4.19 the alleged violation, or in the county in which the alleged 4.20 violation occurred, if the petitioner and respondent do not 4.21 reside in this state. The court also shall refer the violation 4.22 of the order for protection to the appropriate prosecuting 4.23 authority for possible prosecution under paragraph (b), (c), or 4.24 (d). 4.25 (h) If it is alleged that the respondent has violated an 4.26 order for protection issued under subdivision 6 or a similar law 4.27 of another state, the United States, the District of Columbia, 4.28 tribal lands, or United States territories, and the court finds 4.29 that the order has expired between the time of the alleged 4.30 violation and the court's hearing on the violation, the court 4.31 may grant a new order for protection under subdivision 6 based 4.32 solely on the respondent's alleged violation of the prior order, 4.33 to be effective until the hearing on the alleged violation of 4.34 the prior order. If the court finds that the respondent has 4.35 violated the prior order, the relief granted in the new order 4.36 for protection shall be extended for a fixed period, not to 5.1 exceed one year, except when the court determines a longer fixed 5.2 period is appropriate. 5.3 (i) The admittance into petitioner's dwelling of an abusing 5.4 party excluded from the dwelling under an order for protection 5.5 is not a violation by the petitioner of the order for protection. 5.6 A peace officer is not liable under section 609.43, clause 5.7 (1), for a failure to perform a duty required by paragraph (e). 5.8 (j) When a person is convicted under paragraph (b) or (c) 5.9 of violating an order for protection and the court determines 5.10 that the person used a firearm in any way during commission of 5.11 the violation, the court may order that the person is prohibited 5.12 from possessing any type of firearm for any period longer than 5.13 three years or for the remainder of the person's life. A person 5.14 who violates this paragraph is guilty of a gross misdemeanor. 5.15 At the time of the conviction, the court shall inform the 5.16 defendant whether and for how long the defendant is prohibited 5.17 from possessing a firearm and that it is a gross misdemeanor to 5.18 violate this paragraph. The failure of the court to provide 5.19 this information to a defendant does not affect the 5.20 applicability of the firearm possession prohibition or the gross 5.21 misdemeanor penalty to that defendant. 5.22 (k) Except as otherwise provided in paragraph (j), when a 5.23 person is convicted under paragraph (b) or (c) of violating an 5.24 order for protection, the court shall inform the defendant that 5.25 the defendant is prohibited from possessing a pistol for three 5.26 years from the date of conviction and that it is a gross 5.27 misdemeanor offense to violate this prohibition. The failure of 5.28 the court to provide this information to a defendant does not 5.29 affect the applicability of the pistol possession prohibition or 5.30 the gross misdemeanor penalty to that defendant. 5.31 (l) Except as otherwise provided in paragraph (j), a person 5.32 is not entitled to possess a pistol if the person has been 5.33 convicted under paragraph (b) or (c) after August 1, 1996, of 5.34 violating an order for protection, unless three years have 5.35 elapsed from the date of conviction and, during that time, the 5.36 person has not been convicted of any other violation of this 6.1 section. Property rights may not be abated but access may be 6.2 restricted by the courts. A person who possesses a pistol in 6.3 violation of this paragraph is guilty of a gross misdemeanor. 6.4 (m) If the court determines that a person convicted under 6.5 paragraph (b) or (c) of violating an order for protection owns 6.6 or possesses a firearm and used it in any way during the 6.7 commission of the violation, it shall order that the firearm be 6.8 summarily forfeited under section 609.5316, subdivision 3. 6.9 Sec. 2. Minnesota Statutes 2000, section 518B.01, 6.10 subdivision 22, is amended to read: 6.11 Subd. 22. [VIOLATION OF A DOMESTIC ABUSE NO CONTACT 6.12 ORDER.] (a) A domestic abuse no contact order is an order issued 6.13 by a court against a defendant in a criminal proceeding for 6.14 domestic abuse. It includes pretrial orders before final 6.15 disposition of the case and probationary orders after sentencing. 6.16 (b) A person who knows of the existence of a domestic abuse 6.17 no contact order issued against the person and violates the 6.18 order is guilty of a misdemeanor. 6.19 (c) A peace officer shall arrest without a warrant and take 6.20 into custody a person whom the peace officer has probable cause 6.21 to believe has violated a domestic abuse no contact order, even 6.22 if the violation of the order did not take place in the presence 6.23 of the peace officer, if the existence of the order can be 6.24 verified by the officer. The person shall be held in custody 6.25 for at least 36 hours, excluding the day of arrest, Sundays, and 6.26 holidays, unless the person is released earlier by a judge or 6.27 judicial officer. A peace officer acting in good faith and 6.28 exercising due care in making an arrest pursuant to this 6.29 paragraph is immune from civil liability that might result from 6.30 the officer's actions. 6.31 Sec. 3. [EFFECTIVE DATE.] 6.32 Sections 1 and 2 are effective August 1, 2002, and apply to 6.33 crimes committed on or after that date.