Category Archives: OFP & HRO HEARINGS

Minnesota’s 2014 Domestic Violence Firearm Act: Eight (8) Facts that Judges Need to Know (14-21)

gun in handQUESTION: What is the 2014 Domestic Violence Firearm Act (HF 3238, Session Law Chapter 213, also called the Firearms Transfer/Surrender Act) and what do Minnesota judges need to know in order to comply with its mandatory provisions? Enactment of the new law has generated a great deal of confusion among court administration, attorneys and the bench.

ANSWER: The Firearms Transfer Act is a new series of laws that went into effect on August 1, 2014. The act requires defendants convicted of certain domestic violence offenses or persons subject to an Order for Protection (OFP) or Domestic Child Abuse No Contact orders to “Transfer or Surrender Firearms” during the time they are prohibited from possessing firearms (i.e. period of probation or length of the no contact order). The act makes it MANDATORY for judges to order the “Transfer or Surrender” of firearms if the act applies.

This Update will hopefully simplify the new law by breaking it down into 8 facts that explains what judges and attorneys need to know in order to comply with the mandatory provisions of the Act.

TO READ MORE CLICK ON THE LINK BELOW:

PendletonUpdate14-21

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OFP ADVISORY TO RESPONDENTS – ANOTHER URBAN MYTH (14-13)

domestic.violenceQUESTION: It is a well-known legal axiom that an out-of-court statement made by a party-opponent is admissible against that party as non-hearsay in any subsequent legal proceeding. Mn Rule Evid 801D(2). During a contested OFP hearing, if the respondent chooses to testify despite the fact he has a pending domestic assault charge, should the judge, and/or respondent’s attorney, advise respondent that his testimony could be used against him in his subsequent criminal trial?

ANSWER: NODespite the above noted legal axiom, a respondent’s OFP testimony CANNOT be used against him in his subsequent criminal trial. Minnesota law clearly states: “Any testimony offered by a respondent in a hearing pursuant to this section (Domestic Abuse Act) is inadmissible in a criminal proceeding.” MS 518B.01, subd 15.

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PendletonUpdate14-13

OFP & HRO HEARINGS – DUE PROCESS VIOLATION = REVERSAL (14-04)

CAUTION: In the past 12 months the Court of Appeals has REVERSED the issuance of two separate Harassment Restraining Orders (HRO) based on Due Process violation(s). Namely, failure to provide respondent the opportunity to: (1) cross- examine the petitioner or the petitioner’s witnesses; and/or (2) the right to present witnesses on respondent’s behalf, or in the alternative, to make an offer of proof regarding the testimony of witnesses.

CLICK ON LINK BELOW TO READ MORE

Pendleton Update 14-4