Violation of a Restraining Order in Ocean County NJ
Defense Attorneys for Contempt Charges in Toms River, New Jersey
A violation of a restraining order is a serious matter because it ultimately results in a criminal contempt charge. In order for the violation to occur, the original “aggressor” must commit it. Furthermore, it does not matter whether the “aggressor” is in violation of a Final Restraining Order (FRO) or Temporary Restraining Order (TRO). Violation of a restraining order is a serious offense that can result in a felony record and mandatory incarceration. If law enforcement, after reviewing evidence of the alleged violation, finds that there is probable cause that a violation has taken place, then, pursuant to N.J.S.A. 2C: 25-31 they are obligated to arrest and charge the defendant with criminal contempt of the domestic violence restraining order. It is important to note that the aggressor does not have to be at the scene of the alleged violation in order for the police to make a lawful arrest. If the cops find that there is not probable cause to pursue a criminal prosecution, then the victim may still file a criminal contempt charge in the Superior Court Family Part, Chancery Division pursuant to N.J.S.A. 2C:25-32 because probable cause is not required for civil matters.
If you are facing criminal contempt charges for violation of a restraining order, it is essential to seek knowledgeable legal counsel as soon as possible. Proetta & Oliver is an Ocean County, New Jersey law firm dedicated to criminal and domestic violence defense. With offices in Toms River, our restraining order attorneys regularly represent clients in Brick, Lakewood, Manchester, Jackson, Point Pleasant, and throughout Ocean County. For a free consultation about your specific case, contact us anytime at (848) 238-2100. One of our lawyers is standing by to assist you.
Criminal Contempt of a Restraining Order in New Jersey
As mentioned above, a violation of a restraining order will be prosecuted in either the Family Part or Criminal Part of the Superior Court depending on the circumstances. The Criminal Part, Law Division hears more serious contempt charges. These include fourth degree contempt charges that can arise when an aggressor committed a disorderly persons offense in violation of the order. In contrast, the Family Part, Chancery Division hears less serious contempt charges. For example, if the violation involves a petty disorderly persons offense (harassment), mere contact with the victim, or if the violation involved visitation, then the Family Part will determine the outcome of the violation.
Regardless of where the case is heard, a state criminal prosecutor will be involved in any criminal contempt violation charges. Under 2C:29-9(b), an aggressor is guilty of fourth degree criminal contempt if he or she knowingly disobeyed a court order and the conduct that constitutes the actual violation of the restraining order also constitutes a separate indictable crime or a disorderly persons offense. Conversely, the contempt will be a disorderly persons offense if the act would normally not constitute a crime but for the existence of the restraining order. This can include contacting the victim, possessing any weapon, following the victim, or being at a place restricted by the restraining order with no intent to commit a crime. We have provided a chart below which gives a breakdown of the two different types of contempt of a restraining order and what constitutes them:
A first offense of contempt can be punishable by incarceration if the court finds that the aggravating circumstances outweigh the mitigating circumstances. N.J.S.A. 2C:44-1(b). More importantly, a second or subsequent offense of criminal contempt under the Domestic Violence Act is punishable by 30 days mandatory incarceration for even a non-indictable contempt charge. However, the enhanced jail penalty does not apply to a defendant who is simultaneously convicted for multiple contempt charges even if the conduct occurred on separate dates. State v. Bowser, 272 N.J. Super. 582 (Ch. Div. 1993).
The aggravating and mitigating circumstances the judge may consider when sentencing a defendant to jail for criminal contempt under N.J.S.A. 2C:44-1(a) and (b) are listed below for your convenience.
• Victim particularly vulnerable;
• Risk that the aggressor will commit another offense;
• Aggressor’s prior record;
• Policy seeking to deter aggressor and others;
• Policy avoiding sense that “fines are only cost for doing business”;
• Victim over 60 years old is especially vulnerable;
• Aggressor’s conduct neither caused nor threatened serious harm;
• Aggressor did not contemplate that the conduct would cause or threaten serious harm;
• Substantial grounds exist to excuse or justify the aggressor’s conduct, though failing to establish a defense;
• Victim induced and/or facilitated the commission of the act;
• Aggressor has no history or prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense;
• Aggressor’s conduct was the result of circumstances unlikely to reoccur.
Defenses for Contempt of a Restraining Order
In cases regarding contempt charges and violations of court orders, the State of New Jersey is the plaintiff and therefore a prosecutor will be assigned to the case, rather than the complainant or original victim. State v. Brito, 345 N.J. Super. 228, 230 (App. Div. 2001). Therefore, a defendant should be aware that reconciliation with the alleged victim is not a valid defense to a contempt charge, unlike a final restraining order hearing in which reconciliation is a valid defense. State v. Washington, 319 N.J. Super. 681 (Ch. Div. 1998). However, there exist affirmative defenses for contempt of a restraining order. For instance, if the court cannot show that the defendant had actual notice of the restraining order then it will not be able to convict the defendant for contempt. Furthermore, because the state is the interested party, a victim’s failure to appear may not result in an automatic dismissal. This is because, under the Domestic Violence Act, the court has a duty to protect victims of domestic violence. As such, the lack of appearance at the hearing by the victim may be the result of coercion or duress by the aggressor.
Contact a Lakewood NJ Restraining Order Violation Lawyer Today
If you have been charged with violation of a restraining order or criminal contempt, then it is in your best interest to hire an attorney with experience in such matters. For a free consultation or to build a case strategy customized to the facts of your case and designed to meet your needs, call our Toms River offices today at (848) 238-2100.
Our phones are answered 24 hours a day. We are available weekdays during business hours. We also meet with clients on evenings and weekends by request. All major credit cards are accepted.