Many clients that I interact with on a daily basis, especially in the restraining order (TRO/FRO) setting, often ask the above question. I generally tell clients that the better question to ask is if you can be convicted of a technical violation of the law. Generally, any deviation from the words of the criminal statute, technical or substantive, will often times be deemed an arrestable violation of the law by the local police. In the restraining order setting, a technical violation of a TRO/FRO will undoubtedly result in arrest by local police for contempt of a court order. However, in New Jersey, the De Minimis Infraction Statute plays a crucial role in distinguishing between serious legal violations and trivial (technical) matters that do not warrant the attention of an already crowded judicial docket.
The De Minimis Infraction statute, N.J.S.A. 2C:2-11, reads as follows:
The assignment judge may dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it finds that the defendant’s conduct:
a. Was within a customary license or tolerance, neither expressly negated by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense;
b. Did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or
c. Presents such other extenuations that it cannot reasonably be regarded as envisaged by the Legislature in forbidding the offense. The assignment judge shall not dismiss a prosecution under this section without giving the prosecutor notice and an opportunity to be heard. The prosecutor shall have a right to appeal any such dismissal.
At its core, the De Minimis Infraction statute empowers judges to dismiss cases that, while technically unlawful, are not significant enough to merit full prosecution. Such a dismissal is not a product of leniency or reducing accountability, but rather about ensuring that the justice system focuses its efforts and limited resources on matters that truly impact societal well-being.
The application of N.J.S.A. 2C:2-11 relies heavily on the discretion of judges who must weigh the specifics of each case. This discretion ensures that those with reasonable explanations—where intent to harm is absent—are spared the ordeal of prosecution, while also protecting the resources of the court, county and/or state prosecutors, and defense counsel.
The de minimis infraction statute is an excellent example of how the legal system can adapt to focus on genuine threats to societal norms and values, while acknowledging that not every technical infraction merits the full force of a criminal prosecution.
Our Appellate Division has discerned instances where a defendant’s conduct, although a technical violation of the TRO, was not actionable as contempt. For example, in State v. Wilmouth, 302 N.J. Super 20, 23 (App. Div. 1997), the defendant uttered a statement to his estranged wife in the presence of a police officer, and despite the existence of a restraining order, the Court, there, concluded this was not a violation subject to a prosecution for criminal contempt. THEN, in State v. Krupinsky, 321 N.J. Super 34, 45 (App Div 1999), the Appellate Division reversed a contempt conviction because the defendant’s conduct, although a technical violation of the restraining order, was not specifically delineated as restrained, and he acted to assure the safety and welfare of the parties’ infant children. Thus, the defendant’s act was considered a trivial infraction.
Weeding out trivial cases, through the de minimis infraction statute, allows our judicial system to dedicate its finite resources to serious matters that have actual victims and tangible harm, and ultimately maintains the integrity & efficiency of the criminal justice system.
When representing the criminally accused, defense attorneys must always consider the circumstances surrounding the so called “violation of the law” to ensure that technical violations are properly weeded out through a de minimis infraction motion filed before the assignment judge. While dismissals on the grounds of a de minimis infraction are rarely granted by the Court, it is important to hire an attorney that understands how to use the de minimis infraction statute as a shield to protect the accused. Please contact the attorneys at TBWD Law if you or a loved one is charged with what you believe is a “technical” violation of the law.