In a criminal case with a “domestic relationship” element, it’s common for the court to issue a No Contact Order prohibiting the accused from having contact with the person claimed to be “the victim.” The person they’re calling their victim is not consulted; is not asked. In fact, the witness they’re casting in the victim role has no real voice in this – at least not in Minnesota in 2017. He or she cannot “press charges;” can’t “drop the charges. The current system takes the control away from him or her, and gives it to the prosecutor. It’s been that way for decades.
If you are the accused, forget it. The judge is not going to drop the no contact order for you. No, this is written for the witness – one forced into the role of victim of the prosecution.
If you are the witness in a misdemeanor domestic assault case, for example, chances are you want the no contact order dropped. But how? The information here should help get you started, regaining control over your life – taking it back from the government.
Does this scenario sound familiar? You and your other were enjoying some free time together, with adult beverages. After a few drinks, some conflict and less restraint in expressing it. Somehow, the police got called. The 911 call – by whomever – was recorded. Tempers flared. Police officers showed up. They picked someone to arrest, sometimes with help. In what now seems like no time, it’s over. They’re gone. And so is your other, who is now in jail. Work was missed. Bail money. A lawyer. And – a No Contact Order. The pretrial No Contact Order could be in place for months. After that, it may be replaced with a probation No Contact Order for years.
In order to know how to try to get rid of it, it’ll help to understand what it is – to drill down into it. Here we go.
In a criminal case, any kind of criminal case, the court can and often does set conditions of pretrial release. Or it can release the accused on their personal recognizance (meaning no conditions, just show up for court appearances.) One condition of pretrial release the court can require is bail. Bail can be in the form of cash or a bond. In Minnesota, we have the right to pretrial release on money only bail, or unconditional bail.
In other words, we have the right to be presumed innocent before a trial and release without any conditions other than bail. For non-felony cases there is a maximum bail. (For felony cases, there is no maximum.) The maximum bail for a non-felony case is four times the maximum fine. The maximum for a misdemeanor is $1,000 so the maximum bail is $4,000.
For a gross misdemeanor the maximum fine is $3,000 so maximum bail is $12,000. Since we have the right to money-only bail, without any other conditions, in a non-felony case the maximum bail must be without other conditions. And, perhaps not coincidentally, when judges set unconditional bail amounts in non-felony cases, it’s equal to the maximum: $4,000 in a misdemeanor cases and $12,000 in a gross misdemeanor case. This is good to know, since most domestic assault cases are non-felony.
It also means that the court cannot issue a no contact order as a condition of pretrial release in a non-felony case if the defendant posts maximum bail. Some people were not happy with that. So, several years ago Minnesota adopted a statute authorizing courts to issue a Domestic Abuse No Contact Order – a name so long it soon was more often referenced by an acronym, D.A.N.C.O. It was modeled after the earlier Minnesota Domestic Abuse Act’s Order for Protection law, a civil case heard in family court but with criminal penalties for violations.
Bottom line, a defendant can now post maximum bail in a non-felony domestic assault (or similar) case, and get no other conditions of pretrial release, yet still be subject to a DANCO. Minnesota Statutes §629.75, Subdivision 1 (b), says in part:
“A domestic abuse no contact order is independent of any condition of pretrial release or probation imposed on the defendant. A domestic abuse no contact order may be issued in addition to a similar restriction imposed as a condition of pretrial release or probation.”
Perhaps a court will properly strike down the law as unconstitutional one day, but that is beyond the scope of this article. This is a description of what courts are doing now in Minnesota.
It’s important to understand that in a criminal case there could be two no contact orders: one as a condition of pretrial release, the other as a DANCO. It may help to understand the distinction by looking at the remedy for a violation to each. If a condition of pretrial release is violated, the remedy is for the court to issue an arrest warrant, book the defendant into jail, and revisit the issue of pretrial release in a new bail hearing. If a DANCO is violated, that can be charged as a new, additional crime with a different date of alleged offense (compared to the original criminal charge). There could be an arrest, jail, a bail hearing, on that new charge of violation of a DANCO. (The one, same act could be both a violation of a condition of pretrial release; and a criminal violation of a DANCO.)
As a result, at least when it comes to the No Contact condition, it may not matter much whether the defendant posts maximum, unconditional bail or not.
Do courts ever rescind or get rid of No Contact Orders? Yes, sometimes, but they make it difficult. The reality is that the witness (“the victim” of the prosecution) has no real voice unless they work hard and persevere. It helps if he or she knows how to go about it. It also helps to have a witness lawyer helping make sure that he or she will be heard.
Domestic violence cases, perhaps like many things, vary along a continuum. A few are horrific; but the vast majority are not. Just ask any police officer what the most common 911 response call is – “a domestic.” In how many of these cases is alcohol a factor? Almost all. The majority do not involve any physical harm or injury or minimal like a slap, bruise or scratch. The harm caused by the criminal prosecution in response is typically massive and disproportionate. But you already know that now, don’t you?
The number one question when you go to court will be: “are you afraid of him or her?” What is written in the police reports will be reviewed, over and over. People are not always the best historians when they are angry and drinking. (But discussing the events of the night in question is often not a good idea. Discuss with your lawyer before doing so.)
“Did you say, ‘when you go to court?” Yes, you as the witness, were never asked and now the burden has been squarely placed on your shoulders to go to court to plead with the prosecutor, then the judge to drop the no contact order. It’s your only chance. (The prosecutor or their “advocate” may discourage you from coming to court to ask the No Contact Order be dropped. If you don’t come, it won’t get dropped.)
Many prosecutors have people working for them claiming to be “victim advocates.” Leaving aside the prejudicial “victim” labeling, are they really advocates? A few good ones are. But many see themselves as the advocate of the prosecution agenda, whose job it is to control and manipulate “their” victim to serve the ends of the state. The few good ones actually listen. The best will even fight for the witness’s position and truly advocate for it. Which type will you get? Luck of the draw. If you get a good one, this is good fortune. The bad ones are best ignored to every extent.
Minnesota has a Victim’s Rights Act, Minnesota Chapter 611A. One might think that prosecutors claiming to represent “victims” interests would use and cite this law often. I’ve almost never heard it happen. But I have cited it in most of my domestic assault defense cases, and every time I’ve represented a witness. Why? Because the law says that prosecutors and courts are required to listen to the “victim” and allow them a voice. But many don’t seem to want to hear it. Many prosecutors want to use the witness for their purposes and disregard the effect on their real lives, only to discard after use without thought or care.
It helps for the witness to have a lawyer experienced in domestic violence cases. Your lawyer should know the courtroom, the players, and how to make sure your voice is heard. We will not be ignored. We will make your voice heard.
More can be written. More could be said. Hopefully this brief discussion has been useful for you. It’s a stressful situation to call police for help, only to have them and their prosecuting lawyers turn into the enemy that threatens to ruin you and your family. But there are countermeasures. You can assert your power. You don’t need to let them have it. You can fight back, and regain control over your life.
If you have more questions, consider calling a Minnesota criminal defense lawyer experienced in domestic crime defense to discuss your options.
Thomas C. Gallagher is a Minnesota domestic violence defense lawyer with over 29 years experience with domestic assault and other domestic crime cases and Minnesota restraining orders. He regularly represents the accused to successful outcomes; and sometimes is retained as a witness lawyer.