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Getting Domestic Assault charge removed

Hibbing, MN |

About 8-10 years ago my girlfriend and I got into a yelling argument and we were pushing each other around, I was trying to push her out of the apartment, she was trying to push her way back in. I believe I slapped her once but I am unsure of even that, its been awhile, but there was no other hitting or anything like that. The neighbors called the cops and they showed up, I told them exactly what happened, no lies, and I spent the night in jail and now have a domestic assault charge.

I am now married to the same Woman, we have 3 beautiful children together, all within wedlock, we are an "story book" family. We haven't ever had an issue since the above. But, growing up in a hunting family, I can't go hunting or teach my kids what Dad taught me, my best memories were out in the woods.

Attorney Answers 2

Posted

Domestic assault in the State of Minnesota is what is called an "enhaceable" offense. This means that if a person is charged with domestic assault and has a prior conviction within the last 10 years, the new charge will likely be "enhanced" to a more serious level (e.g., gross misdemeanor rather than misdemeanor). A such, I think you have virtually no chance to get the conviction expunged within 10 years of the original date of conviction (since there will be strenuous objection to expungement by the prosecutor if you seek it within the 10 year enhacement period). Once beyond 10 years from the original date of conviction, there is still no guarantee that you can get it expunged, though you may certainly try.

Even if you are successful in obtaining expungement, this will not be the end of the situation. You would likely then have to apply to have your right to own/use/possess/purchase firearms restored on a Federal level. This is also a procedure without any guarantee of success, as you were convicted of a "crime of violence", which carries a lifetime ban against possessing firearms. The Federal mechanism for relief from this lifetime ban was not funded (unless this has recently changed), so an application to overturn the ban can be submitted, but would likely not be processed (it would sit in a file with no action taken).

I would suggest you consider hunting or outdoor activities that do not involve firearms. You may wish to consult with an attorney to get more specific details on this situation.

The content of this answer is provided for informational purposes only, and should not be construed as a source of solicitation or legal advice. An attorney-client relationship is not formed by viewing this answer or by sending electronic mail to the writer. Further, information contained herein is not to be construed as an invitation for an attorney-client relationship.

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10 comments

Asker

Posted

I had an attorney consultation a couple years ago and I was told to wait 10 years, but they told me that the firearms ban would be gone because the charge was not involving a weapon. Is this correct?

Benjamin Josef Colburn

Benjamin Josef Colburn

Posted

Without doing some supplemental research (which might be appropriate given the often-changing nature of laws), my understanding is as follows: The Federal ban would apply for life under 18 U.S.C. 922(g)(9) to those convicted of a misdemeanor crime of domestic violence as defined in 18 U.S.C. 921(a)(33). The National Instant Criminal Background Check System (NICS) considers a person prohibited if teh conviction involves physical force and teh crime was committed against a family member as defined in 18 U.S.C. 921(a)(33)(ii). This includes disorderly conduct by fighting under Minn. Stat. 609.72, Subd.1(1). Ultimately, I think you are out of luck, though if you were my client, I would want to spend some time updating my recollection and knowledge of Federal Statutes to be certain.

Asker

Posted

Does it matter that we did not live together?

Benjamin Josef Colburn

Benjamin Josef Colburn

Posted

Probably not, as the Minnesota Statute on Domestic Assault contemplates the victim being either a "family" or "household" member. To my understanding, the Federal Statutes at issue do not distinguish whether one resides with the alleged victim.

Asker

Posted

I must be not understanding.... (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.

Benjamin Josef Colburn

Benjamin Josef Colburn

Posted

I 'd be happy to consult with you in greater detail if you wish to schedule a consultation at my office. This method of communication leaves many questions unanswered and really allows responses of limited detail. Needless to say, if you are in Hibbing, you may wish to consult in person with an attorney slightly closer to your area of residence.

Asker

Posted

Where are you located?

Benjamin Josef Colburn

Benjamin Josef Colburn

Posted

Hastings, MN http://fluegel.com/

Asker

Posted

Where are you located?

Asker

Posted

I've been reading some more here guys, looks like under Minnesota law I am guilty on domestic assault obviously, but not under federal law because under federal law in is not domestic assullt if you are not living together or have a child together.....

Posted

If you were convicted of the offense, there is little that can be done. Domestic Assault is an enhanceable offense. that means if you have another charge within 10 years of a first, it is enhanced from a misdemeanor to a gross misdemeanor. As a result, it is unlikely to be expunged.

Moreover, under current law, a statutory expungement is not likely even if the offense were not enhanceable. Expungements are only allowed by statute where there has been a determination in your favor. That means, ultimately, the charges must have been dismissed. If that occurred, you may erase any and all court or administrative records.

If you were not convicted and the matter was ultimately dismissed, you may file a Petition to expunge the record which would essentially erase the record of the charge.

Disclaimer: Nothing in this email message creates an attorney client relationship absent a retainer agreement with this office. Any response to email inquiries should be considered general in nature and should not be relied upon as legal advice. You should always consult a lawyer in your state regarding your specific legal matter. Visit online at http://www.minnesotaLawyers.com

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3 comments

Asker

Posted

I've been reading some more here guys, looks like under Minnesota law I am guilty on domestic assume obviously, but not under federal law because under federal law in is not domestic assullt if you are not living together or have a child together.....

Maury Devereau Beaulier

Maury Devereau Beaulier

Posted

That is niot entirely accurate. Your conviction, if you were convicted, is under state law. The only impact federal law has on the issue is with regard to it's prohibition on gun possession. You would be precluded from owning a weapon with a state domestic assault conviction.

Asker

Posted

Even if the state definition of domestic assault includes more of a range of peoples that would be charged, and has no firearm ban, and the federal I am would not be guilty of because my charge isn't domestic assault under the federal law, but that has a lifetime ban?