Restraining Orders, whether they are temporary or final, are commonplace. Regardless of which side of the restraining order you find yourself, it is important to be familiar with the law regarding the process of obtaining restraining order and consequences for violating such orders. If you have experienced an encounter with the police as a result of an alleged violation of a restraining order, you likely have been arrested with a set bail requirement. In such a frightening and confusing situation it is important to have reliable legal counsel and defense. Our attorneys at the Law Offices of Hebert I. Ellis, P.C., have many years of experience defending restraining order issues throughout New Jersey and New York.
Obtaining a Restraining Order in NJ
. The procedure for obtaining a Restraining Order in the State of New Jersey is as follows:
– Temporary Restraining Order
An individual applying for a temporary Restraining Order must appear personally before a judge to testify their complaint on the record. Based on their complaint or testimony, the judge will determine whether the applicant is in danger of domestic violence and may order emergency relief by way of a temporary Restraining Order. The temporary restraining order may be issued ex parte if necessary to protect the well-being of the victim.
– Temporary Restraining Order via Electronic Communication A temporary restraining order may also be issued electronically based on sworn oral testimony from an applicant not physically present. This sworn oral testimony can be communicated by way of radio, telephone, or other methods of electronic communication.
Said testimony must be recorded by the judge or a law enforcement officer via tape recording, stenographic machine, or long hand notes made by the judge if electronic means are otherwise unavailable.
– Final Restraining Order
A final restraining order is issued only upon finding specific domestic violence or on a stipulation by the defendant of an act of domestic violence.
– Arrest Without a Warrant
In the event a law enforcement officer has made an arrest without a warrant for a violation of an offense under the Prevention of Domestic Violence Act, a complaint-warrant may be issued and bail may be set.
Some evidence that an act of domestic violence occurred musts exist to authorize a temporary restraining order. “Domestic Violence” as outlined in New Jersey Statute 2C:25-28 requires one more of the following offenses to be met:
– Criminal Trespassing
– Criminal Mischief
If a basis exists to believe any of the above offenses has occurred, a temporary restraining order may be granted. This temporary restraining order prohibits any contact between the parties. Failure to obey the restraining order is a criminal violation of the law. When a temporary restraining order has been issued, the State of New Jersey requires a seizure of any weapons or any permit or ID card to purchase a handgun possessed by the defendant.
A hearing is conducted by a Superior Court Judge in the Family Division within 10 days of the restraining order issuance to determine if the temporary restraining order will become a final restraining order. At this time, a skilled criminal defense attorney presents the defendant’s side of the case. Once the final restraining order is issued, the individual may be arrested for a criminal offense if they are found in violation of their final restraining order. If you are involved in a hearing for a restraining order, make the most of this time in your case and take the opportunity to have an attorney work for you to avoid the imposition of a final restraining order if at all possible.
Violating a Restraining Order
Violation of any restraining order, be it temporary or final, is a criminal offense. If you are believed to have violated a restraining order you may be arrested and suffer the consequences of a criminal contempt charge. If probable cause exists to believe an individual has violated a restraining order, the defendant is arrested.
Criminal Sexual Contact
Any violation of a restraining order is considered a criminal offense and contempt proceedings involving domestic violence orders will ensue and, unless they constitute and indictable offense, will heard by the Family Part of the Chancery Division of the Superior Court.
Any individual convicted of multiple non-indictable domestic violence contempt offenses will serve a minimum term of 30 days in jail.
If an individual knowingly or purposely violates any provision in any order in or similar to the Prevention of Domestic Violence Act of 1991, that person is guilty of a Fourth Degree Offense.
Before a determining a violation of a restraining order, it must be confirmed that the accused had in possession a notice of the restraining order. If the individual accused of violating the restraining order was not serviced with the order or notified of its existence, they cannot be held accountable for any violations. However, if the lack of knowledge of the order is unreasonable or the individual claims false ignorance of the notice, the lack of notice defense will not apply.
Penalties of Violating a Restraining Order
As with many offenses, the penalties for violating depend on the context of the violation. Any penalties for violating domestic violence laws would be given in addition to any penalties applicable to any independent acts of domestic violence committed by the defendant. If the individual is accused of
violating a restraining order by committing a Second Degree, Third Degree, or Fourth Degree Offense (such as Stalking, Harassment, Assault, or Terroristic Threats), then that individual would be subject to penalties for both this offense as well as penalties associated with the domestic violence laws that were violated. A minimum mandatory incarceration period of 30 days in jail is required for a second violation of a restraining order.
A violation of a final restraining order is considered a Fourth Degree Offense and if convicted, penalties can include up to 18 months of jail time. Any potential period of incarceration increases when a Second Degree, Third Degree, or Fourth Degree act of violence is also implicated in the violation of the restraining order. It is imperative to retain an experience criminal defense attorney as early as possible in a restraining order case. Contact the lawyers at the Law Offices of Herbert I. Ellis, P.C., for skilled defense in your restraining order case. We will assist you and explore and possible defenses in your case to help you avoid what can be significant consequences.