An Order of Protection under the Family Violence Protection Act is taken very seriously. Though they are civil rather than criminal in nature, violation of an Order of Protection can result in contempt charges, criminal domestic violence charges and jail time.
Permanent and Severe Consequences
Because they are so serious, it is important to have an attorney from beginning to end where a Petition for Order of Protection from Domestic Abuse has been filed against you. Every hearing has potentially very serious consequences.
Even the very first hearing on the Petition can have permanent and severe consequences on a finding of domestic violence or abuse well beyond what some may perceive as the simple inconvenience of an order of protection.
The most notable include consequences for gun rights, employment and immigration rights. For New Mexico, one extremely important consequences relates to security clearances. In addition, there may be other rights affected by a finding of domestic violence.
The Albuquerque attorneys of Collins & Collins, P.C. have extensive experience on both the family court side as well as the criminal side of these cases. We are here to help.
Order of Protection Issued by the Domestic Violence Division of Family Court
An Order of Protection (often referred to as a restraining order) is a type of civil restraining order carrying no criminal penalties. These are issued out of the Family Law Court Domestic Violence Division.
Though they are civil in nature at their inception, violation of an Order of Protection is a criminal offense. In fact, repeated violations may be charged as a 3rd degree felony carrying up to 3 years in prison.
First Violation Can be Charged as Misdemeanor Carrying Jail Time
The first violation of an Order of Protection is typically charged under NMSA §40-13-6(F)as a misdemeanor offense punishable by up to one year in jail. Subsequent violations carry escalating charges and potential penalties.
The Courts in New Mexico take violations of Orders of Protection very seriously. In Albuquerque in particular, these cases once filed can take a lot of work to resolve. Specifically, the prosecutors will typically not let these cases go unless they have to.
People often ask if the case will be dismissed if the alleged victim does not want to prosecute. Unfortunately, the prosecutors (at least in Albuquerque) will pursue these charges even where the alleged victim recants and even gives written statements to the prosecutor to that affect.
Violation Can Also be Charged with Contempt of Court Carrying Jail Time
In addition to possible criminal charges, a violation can result in a holding of contempt of court. This means any violation including the first.
In cases of contempt of court, the judge may order the immediate detention of the offender. The court has a great deal of discretion over how long to detain a person for contempt of court.
In many cases, the court will order the person detained for 10 days though the court can order longer or shorter periods of detention. The court will typically also order attorney fees, court costs and fines for contempt of court.
Mandatory Jail Time for Second Violation
The Family Violence Protection Act provides for mandatory jail time of 72 consecutive hours for a second violation. Again, under NMSA §40-13-6(F), this is not discretionary with the court so there is no possibility of a deferred or suspended sentence or any other considerations.
Keep in mind also, that this is in addition to possible additional criminal charges. This means that if you are found guilty of a second violation, you will go to jail. The only question is for how long?
Potential for Felony Charges Even on First Violation
Further, the person may be charged with felony aggravated stalking even for a first violation of an Order of Protection under NMSA §30-3A-3.1. It is fairly rare in the absence of aggravating circumstances that felony charges would be file on a first violation
However, a second or subsequent violation frequently results in charges of aggravated stalking, a 4th degree felony carrying up to 18 months in prison and a $5000 fine.
Escalating Criminal Charges for Subsequent Violations
Like all crimes, subsequent offenses carry increasingly severe punishment. A third or subsequent violation is a 3rd degree felony carrying up to 3 years in prison and a $5000 fine. Multiple violations may also be charged separately on the same complaint with the penalties for each individual charge stacking with possible concurrent sentencing.
Child Abuse and Neglect Can be Charged when Children Present
Finally, if children are involved, a whole new set of issues arises. The violation can then be charged as child abuse and neglect both under the New Mexico Criminal Code and the Children’s Code. These too carry extremely serious consequences including incarceration, fines, attorney fees, and the loss of child custody and time-sharing.
Be Very Careful, Every Violation Has Potential Consequences!
In short, violations of an Order of Protection from Domestic Abuse are taken very seriously in New Mexico. Extreme caution is advised if there is any possibility of allegations of a violation.
Even seemingly trivial violations can result in all of the above consequences. Charges may even be filed where the alleged victim invites contact. In the end, these may or may not be dismissed depending on all the circumstances, but the process of getting them dismissed can be very difficult, stressful and costly.