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What Happens If You Violate a No-Contact Provision in a Restraining Order?

Jan 10, 2024 | Written by: Diana N. Fredericks, Esq. |

Did you know that if you are a defendant in a restraining order (temporary or permanent), you may not have any contact with the victim/plaintiff?  Did you know that violations of restraining orders in New Jersey are a per se offense, and will result in arrest and potential quasi-criminal proceedings?  While there may be exceptions to the no-contact provisions of a restraining order, particularly if the parties share children, it is still imperative that you understand what type of communications are permitted, if any (email, text, a messaging app, etc.) and the permitted frequency of same.  This needs to be mentioned with specificity in the actual terms of the restraining order. 

Have you ever considered what would happen if you accidentally pocket dialed the person on the other side of the restraining order, or accidentally selected their information on your phone?  Surely something innocent would not be considered a violation, would it?  Yes. 

In a recent unpublished decision of State v. Labinski, the Appellate Division addressed this question.

The defendant appealed his bench trial conviction for contempt under N.J.S.A. 2C:29-9(b)(2) for violating the no-contact provision in a domestic violence temporary restraining order (TRO). The Family Part judge denied the defendant's pretrial motion to dismiss the contempt complaint.  After a trial, the judge[1] found the State proved beyond a reasonable doubt that the defendant knowingly placed a telephone call to his former wife in violation of the TRO. The judge rejected the defendant's contention that the call had been made either inadvertently by the defendant or by someone else "spoofing" his telephone number.   The Appellate Division agreed with the trial court and upheld the contempt finding.

The salient facts are as follows:

On June 30, 2021, the defendant's former wife obtained a TRO against him under the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35, alleging the defendant had harassed her. The TRO prohibited the defendant "from having any oral, written, personal, electronic, or other form of contact or communication with [his former wife.]"  The former wife reported she received a call from the defendant that she did not answer.  The defendant was charged by complaint with knowingly or purposely violating an order entered under the provisions of the PDVA.

On the second day of trial, the defendant testified in his own defense. He claimed he did not knowingly or purposely contact his former wife. When asked if the call was a pocket dial or a "spoof" call, the defendant replied, "I don't know, sir."  The defense also presented testimony from a witness qualified as an expert on cell phones. The expert explained the many ways an accidental call can occur:  pocket dialing, issues with the voice-activated Siri application, spam calls (spoofing), accidentally hitting someone's name after receiving a voicemail, accidentally calling a designated medical contact, or a "butt dial."  The expert acknowledged butt dials are less likely to occur with current technology, as those sorts of calls typically originate from phones with raised buttons. The defendant had an iPhone, which does not have raised buttons. The expert also testified that a cracked screen could lead to an accidental call. The defendant had a cracked phone screen on the day of the violation.  After closing arguments, the trial judge found that the defendant had violated the TRO, issuing an oral opinion to explain his decision. The judge rejected the notion that the call was a "spoof call," noting it "would be just an absolute, incredible coincidence, to happen once with a—with a fresh restraining order, to just happen to have that phone number chosen by a telemarketer . . . ."  The judge also found an accidental Siri call unlikely.

The defendant was issued a fine, ordered to submit a DNA sample, and banned from possessing a firearm.  In reaching this conclusion, the Appellate Division found:

The violation was not de minimis for purposes of N.J.S.A. 2C:2-11 merely because only a single phone call was placed. There need not be a pattern of violations to warrant prosecution for contempt of a domestic violence TRO. The no-contact provision in the order was clear and unambiguous in precluding any contact. Furthermore, the TRO expressly proscribed contact, not just communication. The latter term implies conversation or conveyance of information such as by leaving a voicemail message. One of the purposes of a no-contact order is to protect domestic violence victims from any attempt by defendants to exercise the kind of control that is common in domestic violence situations. See Cesare v. Cesare, 154 N.J. 394, 397-98 (1998); see also Hoffman, 149 N.J. at 584 ("[T]he [PDVA] effectuates the notion that the victim of domestic violence is entitled to be left alone.").

Interestingly, the court also found that the former wife’s failure to answer the phone also did not make the offense de minimis. 

What are the important takeaways from this decision?  The Appellate Division stated the following:

  • Yes, de minimis provision can apply in cases involving violations of restraining orders, [but] we conclude it does not apply in this instance where the contempt charge alleged conduct that clearly violated an unambiguous no-contact order. There were no extenuating circumstances to justify placing a phone call. The phone call here, coming just two days after the TRO was entered, struck at the heart of that notion. Accordingly, defendant was obliged to contest the contempt charge on its merits at trial, putting the State to its proofs applying the beyond-a reasonable-doubt standard. Defendant was not entitled to have it dismissed before trial as a de minimis infraction.
  • When a defendant chooses to put on a defense, the trier of fact is permitted to scrutinize it like any other evidence. And of course, when defendants elect to testify in their own defense, they place their credibility at issue before the trier of fact
  • J.S.A. 2C:29-9(b)(2) prohibits a person from "purposely or knowingly violat[ing] an order entered under the provisions of the [PDVA]. . . ." Defendant argues "one, unanswered phone call, without any voicemail or message left for the alleged victim, does not constitute a communication or contact under the temporary restraining order." We disagree. The TRO entered against defendant expressly and unambiguously prohibited him from "having any oral, written, personal, electronic, or other form of contact or communication with [his former wife.]" (emphasis in original). For reasons we have already explained in our discussion of defendant's de minimis argument, we are satisfied the call was a form of contact.

If you are defending a restraining order, you may want to consider deleting/removing the victim’s contact information from your cell phone and other forms of communication, so that you cannot accidentally contact the person, pending the final hearing and/or clarification on how communication is permitted, if any.

[1] These are bench not jury trials.

Diana Fredericks, Esq.


Diana N. Fredericks, Esq., devotes her practice solely to family law matters.  She is a Certified Matrimonial Law Attorney and was named to the NJ Super Lawyers Rising Stars list in the practice of family law by Thomson Reuters from 2015 through 2021, to the NJ Super Lawyers list in 2023, and to the New Leaders of the Bar list by the New Jersey Law Journal in 2015.  Contact Ms. Fredericks for a consultation at 908-735-5161 or via email.

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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.