If you have a criminal record of any kind, then you might be eligible for expungement of that criminal record depending on the facts and circumstances of the underlying case(s). Restraining orders are generally not criminal in nature, so they generally are not eligible to be expunged. If you are seeking to remove an active restraining order, then you might be able to do so through an appeal or motion to vacate a restraining order. It is important to understand specifically where you are in the timeline of a restraining order to see what your legal options are. If you have legal questions, then it is important that you speak to an experienced criminal defense attorney as soon as possible.
Restraining Orders Explained
A restraining order is an order granted by a judge that "restrains" a certain individual from having contact or being near another individual. Restraining orders are given when there are allegations of violence and are intended to keep people safe from threats or harm from someone. Most restraining order cases involve people that know each other. In many cases, the people involved in a restraining order are a former couple or are family members. If a restraining order is granted, then the individual named will be restrained and/or forbidden from certain conduct and communications with the alleged victim.
What Type of Action is a Restraining Order?
Restraining orders are considered civil matters, but a violation of a restraining order is a criminal matter. Once a restraining order is granted, the provisions of that restraining order will be entered on police databases, so if a call for help is made, the police have all the information of a restraining order immediately available. While a restraining order is active, no criminal record will generate unless there is an alleged violation of some kind.
It is important to know that you are not allowed to own a firearm if there is an active restraining order against you. You will only regain the right to own a firearm once a restraining order is lifted. If you are caught with a firearm while a restraining order is active against you, then it can lead to a criminal charge.
What Happens If You Violate a Restraining Order?
As mentioned above, restraining orders are considered civil in nature but can turn into a criminal case if there are any alleged violations. This is because any restraining order violations can lead to a criminal contempt charge. If someone is alleged to have committed a restraining order violation, then the police must arrest them under New Jersey law. Restraining order violations can result in different types of punishments depending on what type of violations are alleged and how many prior violations have occurred.
- The first violation of a restraining order can result in up to 180 days in jail and up to a $1,000 fine.
- The second violation of a restraining order can result in a mandatory 30-day jail sentence.
If domestic violence is alleged in the violation of a restraining order, then this can result in a fourth-degree felony charge. A conviction can be punished by up to 18 months in state prison and a fine of up to $10,000.
Since the violation of a restraining order results in an arrest and a criminal charge, the record of a restraining order violation ends up on your criminal record. This record may be eligible for expungement depending on the facts and circumstances of the alleged violation.
What is an Expungement?
An expungement is a legal process that will allow someone that has a criminal record to erase that record from the public eye. Only specific types of crimes are eligible for expungement, and you will most likely have to wait a specific amount of time, typically five years, to seek and obtain an expungement of a criminal offense or record. Expungements are designed to only erase parts of a criminal record and cannot be used for any other purpose, such as removing an active restraining order.
Are Restraining Orders Eligible for Expungement?
Restraining orders themselves are not eligible for expungement because they are not criminal in nature. Since a restraining order is not a criminal offense, an expungement will not help you. If you are looking to contest a restraining order, then you have other legal options but have limited time to exercise those options.
Appeals must be filed within 45 days, or the restraining order will remain permanent unless there is new information that can lead to its removal. If you are outside the window for an appeal, then your main options to have a restraining order removed are through voluntary dismissal by the petitioner or a motion to vacate the restraining order because of changed circumstances that the judge can consider. The court will examine eleven factors to determine whether the motion to vacate should be granted. These factors are outlined in the case of Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995).
Put simply, expungements are not really for restraining orders unless you have a criminal record for violating a provision of a restraining order. If you are looking to get rid of an active restraining order, then you may have legal options available to you. If you have legal questions, then call us at The Lento Law Firm so we can help!
Contact the Lento Law Firm Today
If you have questions about expungements or restraining orders, then it is important that you speak to an experienced attorney. It is important to understand the restraining order process to see if you need an expungement or other legal motion and attorney Joseph D. Lento can help. To learn why Attorney Lento and his team at the Lento Law Firm are the right decision to help you with your case, call us at 888-535-3686 or contact us online.