Accidental Breach of Restraining Orders & PFAs
Question: I accidentally breached a restraining order. What will happen?
Answer: The person who asked this question found an answer I wrote on Quora about restraining orders. They followed up by coming over to my Facebook page and sending me a message. We had a brief conversation where I answered the person’s question in a broad fashion, because that, of course, is all I can do.
This is an area where I actually have some practical experience. Not breaches, but restraining orders. When I was in law school, I participated in a domestic violence clinic. We helped an under-served population in Delaware that could not afford attorneys. Law school clinics are run by law professors, the students (normally third year law students) are admitted to practice in the state, specifically for the clinic and are supervised by the professor. Apropos of nothing, I actually had the privilege of doing the first ever PFA (protection of abuse) by video conference. The aggressor was in jail, and we had been trying to get the order for ages. I explained this to the judge, how the aggressor kept missing the court dates, mainly because he was getting arressted for harassing my client. The judge agreed to allow the video conference, and there you go, we got our PFA.
Was it an Accident or an “Accident”
At any rate, accidental breaches are a problem. You see, we have accidents and we have “accidents.” The question is going to be, which one was it. If, for example, you are the restrained, and you and your ex used to go grocery shopping at a particular store every Friday at 6:00 pm, and you went to that store on Friday at 6:00 pm, chances are good, that won’t be deemed accidental. The prosecutor, and likely the judge, will think that you hoped to bump into the person, knowing they had the habit of going to the grocery store at that location, time and day. You certainly could argue that you went out of habit, and hope that you won’t get in trouble, but it would be better to avoid that kind of breach in the first place. In the end, you can only hope that the person, the prosecutor and the court (or at least one of them) will understand that you did not intend to breach the order. If you do get in trouble, get a lawyer. If you didn’t have one before, you most certainly need one now. Breaches of restraining orders/PFAs are quite serious.
Responding to the Accidental Breach
Let’s say that you really have an accidental breach. How you respond to it is critical. If you continue staying in the same place once you realize that the person is there, then you have specifically chosen to breach the order at that point. It is no longer an accident, if you stay within the distance you are not allowed to be in, even if it initially was an accident. So while you might have had an accident, now it is an intentional breach. If you leave immediately, that could be helpful in your argument that it was an accident and you had no intent to breach the order.
Talk to Your Lawyer About Accidental Breaches of Restraining Orders
When you first get a restraining order or PFA against you, I suggest you ask your lawyer how to deal with accidental breaches. This is especially the case if you live in a small town, or are in a situation where chances are good you may bump into the person. I do not suggest this so you can plot how to avoid getting in trouble for “accidents” mind you. I suggest it so that you know how to react if you have a true accident. Understand, if you keep having “accidental” breaches, there is no way the court will believe they are accidents, and you are going to end up behind bars. You need to do everything you can to avoid accidents. But they can happen. The key is to make sure you understand what to do if one occurs. One thing you most definitely do not want to do is make the accident worse by approaching or communicating with the person who has the order against you. Do not make an accident worse by apologizing, for example. Stay away from the person.