If there is a violation of any term on a civil protection order, there are two options: criminal prosecution and civil contempt.
Criminal prosecution is the most common option. Colorado law makes it a crime for any person that has actual knowledge of a protection order against them to violate any provision thereon. A person has knowledge of a protection order when he/she or a representative are formally served with the protection order.
Colorado law requires that when a civil protection order is issued (either temporary or permanent) that it be uploaded into a registry that is accessible by law enforcement and served upon the person whom it is against. Therefore, law enforcement officers have immediate access to review all Colorado state issued protection orders.
If a law enforcement officer determines that there is probable cause to believe the restrained person has violated any term of a protection order (and had knowledge of the order), the officer may arrest the individual, apply for an arrest warrant, or issue a criminal summons against the individual. If the officer believes that the restrained person committed an act of domestic violence by violating the civil protection order, Colorado law requires the officer to either arrest the restrained party or apply for an arrest warrant for the restrained person.
A violation of a protection order is a class 2 misdemeanor. The violation is a class 1 misdemeanor if (1) the person has been previously convicted of violating a protection order; or (2) the basis of the protection included an allegation of stalking.
Another option available for violation of a protection order is civil contempt. Civil contempt requires the protected party to initiate the court action. There are two types of civil contempt: (1) remedial contempt and (2) punitive contempt. When filing the contempt action, the protected party must choose to file under remedial, punitive, or both.
The primary purpose of remedial contempt is to force compliance with a Court order. Remedial actions are usually not effective or applicable in the context of a civil protection order because the restrained person typically has violated the protection order by a past act, such as contacting the protected person or being present in a location not allowed by the protection order. Thus, there is nothing to “remedy.”
Sanctions allowed under remedial contempt are a conditional fine, conditional imprisonment, and/or attorney fees incurred to bring the remedial contempt action. Under conditional sanctions, the restrained party would have to pay a fine or be imprisoned until they come into compliance.
To hold the restrained person in remedial contempt, the protected person must prove the following elements by a preponderance of the evidence:
- The restrained person did not comply with the protection order;
- The restrained person knew of the protection order;
- The restrained person has the present ability to comply with the protection order.
The primary purpose of punitive contempt is to punish the restrained party for disobeying a Court order.
Sanctions allowed under punitive contempt are an unconditional fine and/or imprisonment in the county jail. It is important to note that unlike remedial contempt, an award for attorney’s fees is not available under punitive contempt.
To hold the restrained person in punitive contempt, the protected person must prove the following elements beyond a reasonable doubt:
- The restrained person knew of the protection order;
- The restrained person had the ability to comply with the protection order;
- The restrained person willfully refused to comply with the protection order; and
- The restrained person’s actions were offensive to the authority and dignity of the Court.
The restrained person is entitled to additional rights in a punitive contempt action. Some of the additional rights are:
- Right to an attorney: if jail is sought, the restrained person has the right to represented by counsel. If he/she cannot afford an attorney, the Court will appoint one to represent him/her. Note, the protected person does not have same right and must pay for their own attorney.
- Presumption of innocence: the restrained person is presumed to be innocent.
- Right to remain silent: the restrained person has the right to remain silent and
Under either a remedial or punitive contempt, the legal procedures are similar:
- The protected person files a Motion for remedial, punitive or both.
- The Court issues a Citation against the restrained party.
- The Citation and Motion must be personally served on the restrained person.
- The Court will hold an advisement hearing to advise the restrained person of their rights.
- Trial is held.
Pursuing a contempt action is complex. Having the assistance of an experienced attorney will keep you from avoiding common pitfalls. Not every attorney is experienced in pursuing a contempt action. As contempt actions implicate constitutional rights of the restrained party, it is important that you have an experienced attorney to avoid a dismissal or choosing the wrong sanctions for your fact pattern.
Burnham law has prosecuted and defended hundreds of contempt cases. In its prosecutions, Burnham Law has successfully been rewarded attorney’s fees, and had fines and jail sentences imposed. In its defense cases, Burnham Law has received numerous “not guilty” verdicts.
If you are a victim from a violation of a protection order or been accused of violating a protection order, Burnham Law is here to help.