Restraining Order Violations are Serious Crimes

 

A restraining order is a powerful tool to protect victims of domestic violence.  The purpose of a restraining order is to avoid future communication or contact between two people.  This holds true for as long as the order remains active. A person who makes contact will be held in contempt of the restraining order.  In New Jersey, the county prosecutor handles cases against those charged with contempt.  Oftentimes, a person will claim that he or she has “permission” to contact the other person.  This claim is insufficient to avoid a contempt charge.  The restrained person cannot make contact until the Court verifies that the restraining order is no longer active.

Fourth Degree Crime

According to the relevant statute, “a person is guilty of a crime of the fourth degree if that person purposely or knowingly violates any provision in an order entered under the provisions of the ‘Prevention of Domestic Violence Act of 1991,’ or an order entered under the provisions of a substantially similar statute under the laws of another state or the United States when the conduct which constitutes the violation could also constitute a crime or a disorderly persons offense.”

In other words, any violation of a restraining order is a fourth degree crime. Accordingly, depending on the circumstances of each particular case, a jail term can be imposed for even the first offense. Anyone with an active restraining order against him or her must understand that upon a second offense, or any subsequent offense, a 30 day jail term is mandatory. Any complaint for contempt also includes its own form of restraint.  This is separate and apart from the active restraining orders.

The terms and provisions of the restraining order must be followed once it is entered. Only the Court can enter an order either terminating or modifying that restraining order. Accordingly, and regardless of the reasoning, a person will be arrested for violating the order. The next stop is Court for an “initial appearance”.  In court, the defendant learns the charges he or she faces.  It will be determined whether or not the offense is indictable.

Indictable Offenses

If the offense is indictable, the trial court judge shall:

1. give the defendant a copy of the complaint and inform the defendant of the charge;
2. inform the defendant of the right to remain silent and that any statement may be used against the defendant;
3. inform the defendant of the right to retain counsel and, if indigent, the right to be represented by the public defender;
4. ask the defendant specifically whether he or she wants counsel and record the defendant’s answer on the complaint;
5. if the defendant asserts indigence, and does not affirmatively, and with understanding, waive the right to counsel, assure that the defendant completes the appropriate application form for public defender services and files it with the criminal division manager’s office;
6. inform the defendant that there is a pretrial intervention program and where and how an application to it may be made;
7. inform the defendant of his or her right to have a hearing as to probable cause and of his or her right to indictment by the grand jury and trial by jury, and if the offense charged may be tried by the court upon waiver of indictment and trial by jury, the court shall so inform the defendant. All such waivers shall be in writing, signed by the defendant, and shall be filed and entered on the docket. If the complaint charges an indictable offense which cannot be tried by the court on waiver, it shall not ask for or accept a plea to the offense; and
8. admit the defendant to bail as provided in Rule 3:26.

Non-Indictable Offenses

If the offense is non-indictable, the trial court judge shall:

1. give the defendant a copy of the complaint and inform the defendant of the charge;
2. inform the defendant of the right to remain silent and that any statement may be used against the defendant;
3. inform the defendant of the right to retain counsel and, if indigent and entitled by law to the appointment of counsel, the right to be represented by a public defender or assigned counsel; and
4. assign counsel, if the defendant is indigent and entitled by law to the appointment of counsel, and does not affirmatively, and with understanding, waive the right to counsel.

It is also worth noting that there is no defense for a contempt charge based upon reconciliation between the parties.  Obviously, this applies as long as the restraining order remains active. Therefore, it is always best to navigate these sensitive matters with the assistance of counsel. Remember, a second or subsequent offense of contempt carries a mandatory thirty (30) day jail term.

Contact us for more information regarding restraining orders, or if you have other family law questions.