Violations of Restraining orders (“209A” Orders), and Harassment Prevention Orders
Violations of Restraining and Harassment Prevention orders carry serious penalties, and such a charge can be brought against you on what seems like very little evidence.
Often the evidence supporting a charge of violating a restraining order is solely the testimony of the alleged victim. A claim that someone violated the “no contact” or “proximity” provisions of the order can be brought solely on the basis of the alleged victim’s statement that she was contacted or the defendant came to her house or place of work, or was near her at a bar or restaurant.
But no matter how “good” the evidence appears, these cases are extremely serious.
Judges take these charges very seriously precisely because they begin with a court having issued a restraining order. A violation is a violation of a previous court order.
At your initial appearance, the judge can either detain you or may impose stringent conditions upon your release. Conditions may include house arrest, mandatory sobriety tests, ankle bracelets and drug testing. If convicted, in addition to any jail and probation time you must complete a 42-week batterer’s treatment program.
Penalties for violating a restraining order can vary from probation to significant jail time, depending on the nature of the violation and the criminal record of the person accused. Violations can also have serious consequences for child custody and visitation, and other family court matters such as divorce cases.
Restraining order violations are misdemeanors and are handled in the district court. The penalty is up to 2.5 years in jail and/or a fine of up to $5,000.00, plus the batterer’s program and any other probation conditions the court orders.
What can constitute a restraining order violation?
A violation of any of the conditions set by the order is a criminal offense. A restraining order violation could arise out of an allegation that you made contact with an individual protected by a restraining order, by appearing either at their home or their work, or within a certain distance from the person or a place as defined in the order. “Third party contact” is when you have someone else contact the person on your behalf.
Contact can include:
- Phone contact;
- In person contact;
- Commenting on a person’s social media post;
- Sending or leaving notes or mail;
- Causing a third party to contact the person on your behalf.
Another form of violation is “abuse” of the person protected by the order. Sometimes this is when there is a charge of a assault and battery and at the time there was also a restraining order between you and the person assaulted. But it can could also happen when the only provision of the restraining order is “no abuse” of the person, and you get in a verbal argument or make threats to them.
Abuse can include threats, intimidation, or even causing utilities to be shut off at the home where the Plaintiff is living, even if you own the home.
Proving a violation of a restraining order.
In order to convict you of a restraining order violation, the prosecution must prove beyond a reasonable doubt:
- First, that a valid restraining order was issued against you by a court;
- Second, that you received notice that the order was in effect or learned of the terms of the order;
- Third, that you violated a term of the order; and
- Fourth, that the order was in effect on the date and at the time of the violation.
Defenses to a charge of violating a restraining order.
If you were charged with violating a restraining order, you may have viable defenses, including but not limited to:
- You were not served with the order;
- That the contact did not violate the terms of the order;
- That it was unintentional and simply accidental or “incidental” contact;
- Even if there is a technical violation of the order that was not intended to abuse, threaten or intimidate the plaintiff, the penalty may be greatly mitigated;
- That the contact or abuse never happened.
Charges of restraining order violations sometimes start out as “he said, she said” cases, but often phone records, screen shots of texts, or video surveillance recordings are found that either prove or disprove the charges. Cases that seem simple at the outset can sometimes prove to be much less clear after some investigation.
A complainant may have a motive to lie about the violation. The conduct may not be an actual violation, especially when an order has been modified to accommodate shared child custody or allows for some kinds of contact but not others.
If you are charged with violating a restraining order.
Most importantly, get yourself an experienced, qualified lawyer who has handled these kinds of cases before. This is not the time to wing it.
Unfortunately, if you are charged, you will be facing an uphill battle, because prosecutors can be particularly zealous in these cases. Depending on the facts alleged against you, a judge is likely to impose bail, or hold you in custody as dangerous if the prosecutors request it. You can expect to be treated by the court and prosecutors as if the allegations are true right from the start. Domestic violence is a serious and dangerous issue, and courts and prosecutors will go out of their way to protect the “victim”, even before anyone has been found guilty of a violation.
Remember that from the moment someone makes an allegation of a restraining order violation against you, everyone, from the police to the prosecutors to the judge, will be watching you closely, looking for signs that you are “dangerous” or that you don’t take the court’s order seriously.
Remember that you are being observed and evaluated from the beginning. From the moment that you learn you are being accused, it is imperative that you:
- remain calm, don’t argue or get excited or loud;
- be respectful of police and court officials;
- don’t try to explain – once the allegation is made, you are probably getting charged no matter what you say;
- get a lawyer;
- and again, don’t try to talk your way out of it, you will probably make your defense harder.
Most importantly, get experienced, qualified representation from a criminal defense lawyer who has handled restraining order violation cases successfully.