This depends on why they were taken away. For a Minnesota Felony Conviction, you can restore your gun rights in two ways. One is by receiving a pardon or by Court Order. Pardons require a person to have a clean record for 5 or 10 years (depending on the charge) and a person must apply to the Pardon Board. However, crimes of violence especially those involving firearms are very rarely granted. Second is by a request for Judicial Restoration or Court Order. This has less requirements than a Pardon, because it only requires that the person has been released from physical confinement and that they can make a showing of good cause to have their gun rights returned. This often involves a petition, a hearing, statements from the person requesting restoration, and potentially statements form other community members.
If you have a misdemeanor conviction that Federally restricts you from possessing firearms a Court Order in Minnesota will not help as Minnesota does not consider you ineligible. But there are a few potential other options to restore your gun rights when you are considered ineligible under Federal Law. Typically, this is done by trying to change the underlying misdemeanor conviction or having that conviction set aside.
How can I lose my Civil Rights, including my Firearm/Gun Rights, in Minnesota?
A person can lose certain civil rights by Judicial Order or by conviction for a felony in Minnesota. Often times a Judge will place restrictions on people as part of their sentence, for example a condition of probation on a domestic case may be that you are not allowed to possess, own, carry, or use firearms. A probationary condition like this is removed once you have successfully completed probation and been discharge. The other way a person can lose their civil rights, including voting rights and gun rights, is when they have been convicted of a felony. In Minnesota, a person who is convicted of a Felony automatically has their civil rights restored upon discharge of their sentence (by Court Order or expiration of their Sentence). However, if you have been convicted of a Crime of Violence you have a lifetime ban on shipping, transporting, possessing, or receiving firearms unless you restore your civil rights.
What is a crime of violence?
A Crime of Violence is always a felony conviction but it only applies to certain offenses. Examples of those offenses are: Murder, Assault, Robbery, Kidnapping, Criminal Sexual Conduct, Arson, Harassment, and Controlled Substance (Drug) Offenses. Additionally, people who have pled to one of these types of offenses under a Stay of Imposition, meaning after probation it is considered a misdemeanor, will still be ineligible even though the conviction does not appear to be a Felony.
I am not a Felon, but I still cannot get a firearm. Why is that?
Often, if a person has a misdemeanor conviction for a crime of violence, then it is possible their firearm rights were taken under Federal Law. Federal Law states that a person is ineligible to ship, transport, possess, or receive firearms if they have been convicted of a Misdemeanor Crime of Domestic Violence. A Misdemeanor Crime of Domestic Violence must be a conviction for an offense where physical force, attempted use of physical force, or threatened use of a deadly weapon was used against a current or former spouse or partner, guardian, parent of a child in common, or someone who lives in the same household. This includes misdemeanor assault, domestic assault, and even disorderly conduct conviction.
Upon arrest for a DWI, the worry is not only about what might happen in the criminal case, but also about how long you will lose your driver’s license for a DWI in Minnesota. The main factors influencing the length are whether you took a breath, blood, or urine test, the alcohol level of that test, and how many prior DWI offenses you have on your record.
As a default, you can look at the Notice and Order of Revocation, which is what the Minnesota Department of Public Safety enters as the length of time your license is revoked. If you want to double-check that number or ensure its accuracy, the following principles apply.
A first-time DWI with an alcohol concentration of .15 or lower, will be subject to a 90-day revocation period in Minnesota. The same length of time applies for first-time controlled substance and hazardous substance DUIs. If those drivers later plead guilty to a Fourth Degree DWI offense, then there will be an administrative reduction to 30 days for the license revocation. In either event, the person is eligible to drive on a limited license after 15 days of the revocation period accrue.
If your alcohol concentration is .16 or more, then a first-time DWI will have a driver’s license revocation period of 1 year. In this scenario, the driver is not able to obtain a limited license, but can partake in Minnesota’s Ignition Interlock Program. There is no waiting period to become a participant in ignition interlock, you just have to fulfill all the requirements as quickly as you can to get up and running on the device.
If you refuse to submit to an evidentiary breath, blood, or urine test, then you will receive a revocation of 1 year. You will also be eligible to drive on a limited license after 15 days of the revocation period pass. Further, if you later plead guilty to a Third Degree DWI Refusal or Fourth Degree DWI, then you will receive an administrative reduction for your license revocation period if you have no prior DUIs or implied consent revocations in your lifetime.
A second-DWI offense within a ten-year period will result in a license revocation of 1 year, if the person’s alcohol concentration was under .16 for their present offense. If the driver tested .16 or more or refused the test, then the revocation period is 2 years. In all of these scenarios, the person is eligible to get on the ignition interlock device for this time period.
A third offense within a ten-year period will result in a cancellation of the person’s driver’s license for 3 years. Regardless of the person’s alcohol concentration level or whether they refused a test, the cancellation period of 3 years applies. A difference between a cancellation period and a revocation period is that a cancellation the requirement for a person to get their regular driver’s license back is that they have to become a participant in Minnesota’s Ignition Interlock Program. And, the 3-year cancellation period does not begin to accrue until the driver is on that program. For a revocation period, a driver can just decide not to drive for the length of the revocation period and apply for their regular driver’s license thereafter.
Fourth Offense or More
A person’s fourth DWI or more will also result in a cancellation. This time for 6 years. The same mandatory ignition interlock restrictions apply, except the limited license stays in effect for the first 3 years.
In any scenario, a driver has a right to challenge their driver’s license revocation or cancellation through the implied consent process. To read more about that, Click Here to Read More
Importantly, if you are under twenty-one years old at the time of the DUI, then the revocation periods will double in time. Additionally, the laws on revocation periods in Minnesota can change through the legislative process. In the past decade, this occurred multiple times. If there is a question about whether the law has changed in this regard, please contact us for the most up-to-date information.
A PSI, or presentence investigation, occurs after a conviction and before sentencing. In virtually all felony cases, a PSI will take place before the judge pronounces the sentence. In domestic abuse cases, regardless of the level of offense, a domestic abuse PSI will generally occur before sentencing. In some counties, the court will require a PSI for misdemeanor and gross misdemeanor DWIs – however, that is not the norm statewide.
What Happens During a PSI?
A PSI is an interview with a probation officer. That probation officer will want to get information about your background, including criminal history, employment, addresses, etc. They will also want to discuss the incident with you. They usually ask you to write out your recollection of the events leading up to and including the incident that resulted in the charges in your case. They will also want to talk about the incident either in person or over the phone. For those that plead guilty to the offense, some sense or remorse or taking responsibility during this part of the process is generally not a bad idea.
If alcohol or drugs were involved in the incident, the probation officer will also want to gauge your past and current level of chemical dependency. This can be as simple as asking you how often you drink or use drugs, what you use, why you use, and how much you have used in the past. The probation officer will also ask for collateral contacts, usually at least two people, that know you well. They will then want to contact those people to try and verify the information you provided. They will then use this data, along with their own observations and research, to determine what level of chemical dependency programming to recommend.
In domestic abuse cases, the PSI will include past and current issues surrounding anger management and abuse. As with chemical dependency, some level of programming may be recommended by the probation officer to address those potential issues. Additionally, the victim in the case will be contacted to address whether they want to provide an impact statement to the court either in writing, or in person, for sentencing. The victim will also provide input about whether they desire a probationary DANCO (domestic abuse no contact order). Further, victims can provide input about whether they request any restitution, which would cover out-of-pocket expenses for such things as medical bills or property damage.
What Happens After a PSI?
Prior to the sentencing hearing, the probation officer will file with the court the PSI report. The prosecutor, judge, and defense attorney should all get a copy of it. Sometimes, it does not get filed until the day before, or day of, the sentencing hearing. In some counties, the court requires judge approval to share the PSI report with the defendant.
One of the most important parts of the report is the recommendations from the probation officer. When there is not an agreement on jail or prison time, this recommendation can carry significant weight as to what the judge may impose. The report will also recommend how long probation should be and the probationary conditions requested, such as whether they believe a no use of alcohol or non-prescribed drugs condition should be imposed and treatment recommendations. Regardless of what the recommendations of the PSI are, your attorney, and you, will be able to make arguments to the judge to ask what you think the sentence should be.
Fourth Degree Assault occurs when someone physically assaults and inflicts demonstrable bodily harm or intentionally throws or transfers bodily fluids upon a specific class of people. Bodily harm is any physical pain or injury, illness, or any impairment of a physical condition. It can be as basic as a red mark or a bruise.
Fourth Degree Assault can be a gross misdemeanor or a felony depending on the act, who the victim is, and whether the actor has any priors. In short, Fourth Degree Assault is any assault against a special protected class where some evidence of harm can be shown.
What makes up this protected class of people?
The list of protected people is expansive. An assault against an employee of the Department of Natural Resources, school official (like a teacher, school administrator, or school employee), a public employee with mandated duties (like a child protection worker, animal control officer, agricultural officer, etc.), community crime prevention group member, vulnerable adult, reserve officer, utility and postal service employees, and transit operators is considered a gross misdemeanor.
An assault against firefighter, healthcare provider (like a nurse, EMT, doctor, etc.), correctional employee, prosecuting attorney, judge, probation officer, and personnel of a secure treatment facility is a felony. An assault against a peace officer (or police officer) or an assault motivated by bias relating to a person’s race, color, religion, sex, sexual orientation, disability, age, or national origin can be a gross misdemeanor or felony depending on if someone has a prior or if they throw/transfer bodily fluids as part of the assault.
It is important to note that in most circumstances the people within these protected groups must be acting within their duties at the time of the assault or the actor knows the person is one of these protected people. However, that does not always mean they are in uniform or specifically at their workplace.
What are the possible consequences?
Fourth Degree Assault is a gross misdemeanor or a felony. The maximum penalty for a gross misdemeanor is 365 days imprisonment and a fine of $3,000. While the maximum penalty for a felony ranges from 366 days to three years and a fine of $3,000 to $6,000. Keep in mind, the maximum punishment rarely gets handed down from judges. Most plea bargain offers are less than the maximum and most straight pleas to a judge result in less than maximum punishment. Even if you have a jury trial and are not successful, the judge may not sentence the maximum punishment. Often, sentences result in stayed jail time. This means that if you comply with your probationary conditions, then you will not have to end up serving the duration of the stayed jail time.
Unlawful Assembly is a misdemeanor and occurs in three different situations. In all three situations a common factor is that three or more people assemble. The difference from there depends on what that group of people are doing. You can be found guilty of unlawful assembly if the group assembles with the intent to commit any unlawful act by force or with the intent to carry out any purpose in such manner as will disturb or threaten the public peace. Additionally, if the group assembles without an unlawful purpose, but the participants conduct themselves in a disorderly manner as to disturb or threaten the public peace. As Unlawful Assembly is a misdemeanor the maximum punishment is ninety (90) days in jail, and a fine of one-thousand dollars ($1,000), or both. However, a person charged with unlawful assembly rarely does any jail time and often pays a fine much less than the maximum, if convicted.
What if I am present but not partaking in the assembly?
When a person without lawful purpose is at an unlawful assembly and refuses to leave when directed by law enforcement they can be charge with the crime of Presence at an Unlawful Assembly. Presence at an Unlawful Assembly is also a misdemeanor carrying a maximum of 90 days in jail, and a fine of $1,000, or both – also with the same caveats of potential jail time and fine amounts as Unlawful Assmebly
What about your First Amendment Constitutional Rights?
The discussion of free speech and assembly were discussed regarding the charge of Unlawful Assembly by the Minnesota Supreme Court in the 1970s in State v. Hipp. The Minnesota Supreme Court reviewed the law and decided that it was not a restriction on speech but a restriction on conduct. While the Constitution protects people’s rights to assemble and protest, it does not protect every type of conduct related to assembly. The Minnesota Supreme Court determined that the conduct that was prohibited and not protected by the Constitution was such that threatened or disturbed the “tranquility enjoyed by a community when good order reigns amongst its members”. Additionally, this meant that a group threatens or disturbs the peace when the conduct “unreasonably denies or interferes with the rights of others to peacefully use their property or public facilities without obstruction, interference, or disturbance”. It is the impact the assembly has on other people’s ability to peacefully use the area (most often streets or sidewalks) that determines if the conduct is constitutionally protected. Thus, blocking of sidewalks and roads could be Unlawful Assembly depending on the impact it has on other people’s peaceful use of that area.
What is the difference between Unlawful Assembly and Rioting?
Rioting and Unlawful Assembly are similar criminal charges in that both need three or more people to assemble. The difference is that with rioting the group disturbs the public peace by an intentional act or threat of unlawful force or violence to person or property. So unlike Unlawful Assembly the conduct needs to go beyond just disturbing the peace. Additionally, rioting comes in three different levels based on if someone in the group has a dangerous weapon and if a death occurs. Unlike with Unlawful Assembly a conviction for rioting starts as a gross misdemeanor and can become a felony which carries a maximum punishment of twenty (20) year in prison and a thirty-five thousand dollar fine ($35,000) or both. Contact Ambrose Law Firm if you have been accused of unlawful assembly.
Domestic Assault by Strangulation in Minnesota is a felony. It is essentially a heightened version of domestic assault where the physical act used is strangulation. To be found guilty, a person has to allegedly assaulted a family or household member with the use of strangulation. The charge most commonly results as Second-Degree Assault.
What Constitutes Strangulation?
This is the most important factor and it is why this version of domestic assault is separate from the standard crime of domestic assault. Strangulation occurs when someone intentionally impedes the normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person. This means that strangulation can occur even if the person is still able to breath or talk, because only a person’s normal breathing needs to be interfered with. Choking someone with your hands, pushing on someone’s neck with your knee, or covering someone’s face with a pillow or bag can all be considered strangulation.
What Constitutes Assault?
Assault can be difficult to understand but generally it consists of either an intentional infliction or attempt to inflict bodily harm upon another or an act done with intent to cause fear in another of immediate bodily harm or death. In the context of domestic assault by strangulation you really are looking at an intentional infliction of bodily harm upon another. Specifically, the intentional infliction of harm by strangulation.
What Constitutes a Family or Household member?
While this seems very straightforward and easy to understand the term “family or household member” goes beyond the simple common-sense definition. The term includes spouses, former spouses, parents, children, relatives by blood, people you currently live with or have lived with in the past, someone whom you share a child with, people you have a significant or sexual relationship with, and if a woman is pregnant either the woman or the alleged father.
What are the Possible Consequences for Domestic Assault by Strangulation?
As a felony a person found guilty is looking at a maximum consequence of three years, a fine of $5,000, or both. It is important to note though that in Minnesota felony convictions are subject to the Minnesota Sentencing Guidelines. This means that the amount of prison time a person must do is determined by looking at a person’s prior criminal history score. The period of time is not always the final amount, as a deviation from the sentencing guidelines can be requested by a motion to the court. When a departure motion is filed, a Judge can decide to sentence lower than what the guidelines dictate for that specific situation. Therefore, while the guidelines typically determine the maximum, the maximum does not always apply.
Third Degree Assault in Minnesota most commonly occurs when a person assaults another and inflicts substantial bodily harm. There are two other ways that someone can be charged with third degree assault and they deal with assaults on minors. If someone assaults a minor (person under the age of 18) and there is a past pattern of child abuse against a minor, then the person can be charge with third degree assault without a showing of substantial bodily harm. Additionally, if a person assaults a child under the age of four and causes bodily harm to the child’s head, eyes, neck, or causes multiple bruises to the body. Thus, the big factors making an assault rise to the level of third degree is an assault to a minor or substantial bodily harm to the alleged victim.
What are the possible consequences?
Third Degree Assault is a felony and carries a maximum penalty of 5 years imprisonment and a fine of $10,000. This is the maximum sentence so often it is possible to receive a sentence lower than the 5 years. As a felony the Minnesota Sentencing Guidelines apply so the maximum possible punishment may not be imposed depending on the defendant’s criminal history score. Third Degree Assault is a severity level four crime according to the guidelines. Which does not typically carry with it a presumptive prison sentence, unless the offender’s criminal history score is four or higher. If convicted, there is an option to file a motion for a sentencing departure and ask the court to deviate from the guidelines and sentence lower than what the guidelines call for in your particular situation. Meaning in short, the maximum sentence will neither always apply, nor will the guideline sentence always employ.
What is considered child abuse?
Any act that constitutes an assault (in the first, second, third, or fifth degree), domestic assault, criminal sexual conduct (in the first, second, third, or fourth degree), malicious punishment of a child, neglect or endangerment of a child, or a threat of violence is considered child abuse. Meaning that any assault, sexual contact, neglect, or threat to commit violence can be considered child abuse. The act does not need to take place in Minnesota and for third degree assault, but there needs to be a pattern of abuse.
What is substantial bodily harm?
Substantial Bodily Harm in terms of the law means a temporary but substantial disfigurement, a temporary but substantial loss or impairment of the function of any bodily member or organ, or a fracture of any bodily member. So, a chipped tooth, a broken arm, or an injury that causes loss of physical function like to someone’s shoulder can all be classified as substantial bodily
Second Degree Assault is a felony and it occurs when someone assaults another with a dangerous weapon. The person does not need to be injured by the dangerous weapon to meet the statutory requirement of second degree assault. So, the main factor raising an assault to the level of second degree is the use of a dangerous weapon.
What are the possible consequences?
Second Degree Assault is a felony with a maximum penalty of either 7 years and a fine of $14,000 or 10 years and a fine of $20,000. The difference depends on whether substantial bodily harm is inflicted on the alleged victim. So, if there is substantial bodily harm then the maximum penalty is increased to 10 years and a fine of $20,000.
It is important to know that these are the maximum penalties which often are not always imposed by a Judge. In felony cases like second degree assault the Minnesota Sentencing Guidelines apply. This means that a defendant’s criminal history score will determine whether the maximum possible punishment will be given. It is also possible to request a deviation from the sentencing guidelines by the way of a motion. By filing a motion, the Judge can decide to sentence lower than what the guidelines call for in your particular situation. In short, the maximum does not always mean the maximum will apply.
What is a dangerous weapon?
A dangerous weapon is a firearm, loaded or unloaded, or any device designed as a weapon and capable of producing death or great bodily harm including combustible or flammable liquids. A firearm is always considered a dangerous weapon, but a hammer or glass bottle can also be a dangerous weapon. A motor vehicle has also been considered a dangerous weapon meaning that hitting someone or attempting to hit someone with your car can constitute second degree assault.
What is substantial bodily harm?
Substantial Bodily Harm in terms of the law means a temporary but substantial disfigurement, a temporary but substantial loss or impairment of the function of any bodily member or organ, or a fracture of any bodily member. So, a chipped tooth, a broken arm, or an injury that causes loss of physical function like to someone’s shoulder could all be considered substantial bodily harm. The injury does not need to be permanent so even though a broken arm will heal, the fracture is still considered substantial bodily harm. Therefore, without substantial bodily harm the maximum consequence is decreased from 10 years and $20,000 to 7 years and $14,000.
First Degree Assault occurs when one person assaults another and inflicts great bodily harm. In rarer circumstances it can occur when someone uses or attempts to use deadly force against a peace officer, prosecuting attorney, judge, or correctional employee who is engaged in the performance of their job.
What level of crime is First Degree Assault?
First Degree Assault is a felony meaning the maximum penalty is over one year in prison. Specifically, for First degree assault the maximum sentence is 20 years and a fine of $30,000 or both. If the assault was against a peace officer, prosecuting attorney, judge, or correctional employee then there is a minimum sentence of 10 years in prison, but the maximum of 20 years still applies.
Importantly, the Minnesota Sentencing Guidelines applies to felony cases, including first degree assault. This means that the maximum possible punishment may not be imposed depending on the defendant’s criminal history score. In some cases, there is also a possibility to file a motion for a sentencing departure and ask the court to deviate from the guidelines and sentence lower than the guidelines call for in your particular situation. In short, the maximum does not always mean the maximum will apply, just as the minimum does not always mean the minimum will apply.
What does great bodily harm mean?
Great bodily harm is any bodily injury which creates a high probability of death, causes serious permanent disfigurement, or causes a permanent or protracted loss or impairment of the function of any bodily member or organ. In short this means that a person’s life is at risk based on the injury or there is some lasting permanent damage to the person whether it is noticeable like a physical disfigurement or internal.
What does deadly force mean?
Deadly force is force used with the purpose of causing, or which the actor should reasonably know creates a substantial risk of causing, death or great bodily harm. Discharging a firearm at a person or an occupied vehicle would constitute deadly force. The maximum sentence someone can receive is 20 years in prison, a fine of $30,000, or both. If the charge is connected to assaulting a peace officer, prosecuting attorney, judge, or correctional officer the minimum sentence is ten years. Similarly to first degree assault resulting in great bodily harm, keep in mind the Minnesota Sentencing Guidelines and how they may apply to your case.
What are the main factors making an assault First Degree?
The big factors that raise an assault to first degree are the injury that occurs, the type of force used, and whether the assault was done to a specific group of people.
A consequence of breaking a DANCO is a new criminal charge. This is a new domestic violence-related offense which can be a misdemeanor, gross misdemeanor, or felony. Domestic violence-related offenses are enhanceable, meaning the more you get within a 10-year period the more severe the consequences. If you violate a DANCO within 10 years of a prior domestic violence-related offense conviction, or adjudication of delinquency, you can be charged with a gross misdemeanor and subject to mandatory penalties.
A qualified prior domestic violence related-offense can be a violation of an order for protection, murder (first or second degree), assault (first, second, third, fourth, or fifth degree), domestic assault, female genital mutilation, domestic assault by strangulation, criminal sexual conduct (first, second, third, or fourth degree), malicious punishment of a child, terroristic threats, violation of a harassment restraining order, harassment or stalking, nonconsensual dissemination of private sexual images, and violation of a DANCO and any similar laws of other states or the United States or territories.
The mandatory-minimum penalty for a second offense is 10 days imprisonment (jail) and court ordered counseling. The maximum sentence is up to 365 days of imprisonment. Often the counseling is either domestic violence counseling or anger management. If a person violates a DANCO within 10 years of two prior domestic violence-related offense conviction or while possessing a dangerous weapon they can be charged with a felony. A felony DANCO violation comes with a maximum penalty of five years imprisonment, a fine of $10,000, or both. A felony level DANCO violation also comes with a mandatory minimum penalty which is at least 30 days in jail and court-ordered counseling.
Since DANCO violations are considered severity level 4 crimes, a person’s criminal history score can impact the amount of time someone has to do. Somebody with four prior domestic assaults or DANCO violations, is facing roughly a 24-month sentence (based on their criminal history score) not a 30-day sentence. Having four prior domestic related-offenses is not as crazy as you think, considering two are needed to get to the felony level (unless a weapon was the enhancing factor). This also does not take into account other prior convictions a person has which can also go into a person’s criminal history score, thus impacting the amount of time someone is sentenced to.
It is not just prior domestic related-offense convictions that go into someone’s criminal history score, it is a person’s full criminal history. It is important to remember that it takes very little to violate a DANCO and every violation of a DANCO is its own charge which can quickly increase the number of priors somebody has. On top of the mandatory minimum imprisonment period, a felony conviction can create issues for people outside of criminal court. The most common issues people incur is difficulty finding employment and housing, because these often require criminal background checks, as well as the inability to vote while on felony probation.
Also, if a person is convicted of any domestic assault (excluding DANCO violations) they would be ineligible to ship, transport, possess, or receive a firearm or ammunition for the remainder of the person’s lifetime unless their firearm rights have been restored under the law. Plus, the person who violates the order can be arrested on the original case and their bail or conditions of release can be changed by the judge. Heightened conditions can include drug testing and electronic monitoring, usually through the use of a GPS monitor. So, in all a DANCO violation doesn’t just lead to a new misdemeanor charge, instead it can lead to months of jail especially if the violation or violations occur after the underlying domestic case has already led to a conviction.