Enhancement (making a crime more serious because of prior convictions) is a confusing subject for many people charged with crimes, especially in the context of 5th Degree Assault and Domestic Assault. Many folks instinctively understand the idea that some charges get more serious if you have prior convictions for the same offense. For example, I’ve never had a client who was particularly confused about why they were charged with a gross misdemeanor or felony Driving While Intoxicated (DWI). Almost invariably, clients understood that their prior DWI convictions meant that their current charges were going to be more serious. They also didn’t seem to struggle in other contexts either such as No Proof of Insurance, Orders for Protection, or Harassment Retraining Order Violations.
The real confusion typically arose in the context of Assault in the Fifth Degree or Domestic Assault. This misunderstanding came from the fact that many people assume assault charges become felonies based on the level of injury to the alleged victim or the use of a weapon. I’ve had countless clients say “I didn’t even lay a hand on her, how can this be a felony?” or “She wasn’t even injured, this can’t be a felony.” The reality is that those clients were sadly mistaken. The clients were correct that many felonies depend upon the injury to the alleged victim or the use of a weapon. For example, Domestic Assault by Strangulation is always a felony regardless of prior convictions and use of a weapon will almost always bring a Second Degree Assault charge. But that is not the only way to be charged with a felony assault in Minnesota.
In Minnesota, crimes of 5th Degree Assault and Domestic Assault, both of which are typically misdemeanors, can be enhanced to felony level offenses, carrying potential prison sentences and much longer periods of probation, if the accused has two prior convictions, for similar offenses, within the past ten years. These prior offenses DO NOT have to be within the same alleged victim, nor do they have to be convictions from the State of Minnesota. Furthermore, the prior convictions don’t have to involve actual acts of violence. Therefore, prior convictions for fear-based Domestic Assault or Assault in the Fifth Degree can be used to enhance a current charge of Domestic Assault or 5th Degree Assault to a Felony charge. This can be difficult for some clients to swallow. Many simply don’t understand how they can be charged with a felony when they have never been convicted of physically assaulting anyone. They are also confused when the prior convictions involve different victims or when they occurred out of state. Unfortunately for these clients, they can be charged with felonies in all of these circumstances if they have two prior convictions on their record. It goes without saying that this is not a situation in which you want to find yourself.
The enhanceability of crimes means it is incredibly important to have an experienced attorney on your side if you are charged with an enhanceable offense. There are resolutions, such as disorderly conduct or a stay of adjudication, which can protect you in the event that you are charged again at some time in the future. Far too many people look at a Domestic Assault or a 5th Degree assault and say to themselves – “It’s just a misdemeanor. It’s not a big deal.”
Many folks want to get things over with so that they don’t have to go back to court, or so that they can get out of jail, or so that they can reconnect with loved ones. While that might make sense in the present, who can really predict what things are going to look like ten years into the future? Ten years is a long time, particularly when you can be charged with an assault for simply engaging in a purely verbal altercation.
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