TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 18, 2016
RE: Rule 5, N.D.R.Crim.P., Initial Appearance Before the Magistrate
Attorney Jackson Lofgren, writing on behalf of the North Dakota Association of Criminal Defense Lawyers, has requested the committee to consider an amendment to Rule 5 that would require defendants to be advised at the initial appearance that a conviction for a misdemeanor crime of domestic violence could result in a lifetime firearms ban. A copy of Mr. Lofgren's letter is attached.
Mr. Lofgren states that defendants who plead guilty to misdemeanors are often surprised to learn that they are forbidden from possessing firearms. The committee has previously discussed how it is common for defendants to plead guilty at the initial appearance because they want to get out of jail and go back to work. Requiring advice of firearms consequences may be useful in such a situation. The committee, however, has also discussed how courts are being required to provide a growing number of warnings and that adding more could be counterproductive.
Proposed amendments to Rule 5 are attached. Under the proposal, a firearms advisory would be added to the list of advice that must be given in a misdemeanor case misdemeanor convictions seemed to be the main concern expressed by Mr. Lofgren. If the committee thinks that requiring advice at the initial appearance about firearms consequences would be useful, it may wish to discuss whether to require a firearms advisory in both misdemeanor and felony cases.
The committee previously approved amendments to Rule 5 on changing the term "preliminary examination" to "preliminary hearing." These amendments are before the Court and they are included in the provided draft. The new proposed amendments on the firearms advisory are highlighted.