Restraining orders are common in cases of domestic violence, which aims at protecting domestic violence victims. However, you might be issued with a restraining order even if you do not pose danger to anyone. This might be the case if the alleged victim wants revenge, among other reasons. In any case, you will face criminal charges if you violate the order, and it would be crucial to contact us at The LA Criminal Defense Law Firm if any criminal charges are levelled against you. Read on to understand the various California restraining orders and how we can help you.
Domestic Violence Cases That Can Warrant a Restraining Order
Domestic violence is abuse committed to an intimate partner, by intentionally and recklessly threatening or causing harm to them. In California law, it is a crime to threaten to harm or harm an intimate partner. It may lead to severe charges such as the issuance of a restraining order, jailing, and penalties. An intimate partner is someone you have a relationship in the following ways:
Former or current spouse
Current or former fiancée
Current or former domestic partner
Someone who you have seriously dated
A person whom you have a child with
Other domestic violence victims include grandchildren, grandparents, aunt, uncles, nephews, nieces, brothers, sisters, among others.
Common domestic violence crimes include:
Corporal injury to an inhabitant or a spouse
Failure to provide child care/Child neglect
Elder abuse, criminal threat
Damaging of telephone wires
Posting harmful information on media
If the court believes that you pose any of the above domestic violence dangers to an intimate partner, you might be issued with a restraining order.
What is a Restraining Order?
A restraining order, also known as a Protective order, is a court order that is meant to protect violence victims from harassment, threats and physical abuse, stalking or intimidation. When issued with a restraining order, you have no permission to contact that person who filed for the charges at any given time. Whatever behavior that the restraining law is protecting will be well detailed in the restraining order itself. The restraining order usually contains the provisions that are meant to prevent you from making direct or indirect contact with the person protected. Some of these provisions include:
Preventing you from sending texts or making calls to the person who the order is protecting
Making you stay a distance from the person protected at all times
Prevent you from making social media interactions or sending emails to the individual protected by the restraining order.
In case you fail to abide by the provisions of the protective order, you will be accused of violating your law stated under the California Penal code Section 273.6 PC
You should ensure that, even if the victim is making contact with you, you should get your way out of them because they have no restrictions on moving freely, and he or she is the only one who can lift the order and make you free again.
How is Violating a Restraining Order Treated in California?
Charges for violation of a domestic violence protective order can be charged as a felony or misdemeanor, depending on the number of times you have had convictions for the same and the type of harm or injury you have caused to the victim. If it is your first-time conviction, the violation is treated as a misdemeanor, however, if you have had previous convictions for the past one year, and that the victim sustained injuries due to your abuse. The violation is treated as a felony. Protective order violation can also be treated as a felony if it is your second conviction within seven years, and that the abuse involved threats of violence or violence.
Types of Restraining Order in California
Different restraining orders have various provisions, meaning a California court can issue you with a restraining order depending on the kind of protection that the victim wants. In California, restraining orders fall into different categories:
Domestic Violence Restraining Order
Domestic Violence restraining Order protects a person from threats of abuse or abuse from another person who is closely related to you. Filing for a domestic violence restraining order is done by registered domestic partners, married couples, cohabitants, spouses, and former spouses. Children too above twelve years of age can file a restraining order against you in a court of law. In the case of a child below twelve years, someone else submitting a restraining request is done on their behalf.
Civil Harassment Restraining Order
Sometimes if you are not eligible for a domestic violence restraining order, then you are issued with a civil harassment restraining order. It is filed against co-workers, extended family members, neighbors, or roommates. A civil harassment restraining order is submitted when there are chances of unlawful violence such as assault, stalking, or credible threats of violence.
Dependent Adult or Elder Restraining Order.
Filling for the order is done by older people who are of 65 years of age or individuals who are between 18-64 years of age and have a mental or physical disability that makes them not live the usual way of life. An elder or a dependent adult will file for a restraining order if they are victims of neglect, hurtful treatment, abuse, or deprivation.
Workplace Violence Restraining Order
A workplace violence restraining order is usually filed when an employer wants to protect the employees from threatened violence or violence at the workplace. When you are issued any restraining order, you must seek advice from an experienced restraining order attorney to help you understand your provisions in the restraining law.
What Are the Levels of Protection for Any Restraining Order?
There are levels of protection that could apply in California courts and the restraining order that you have been issued. The levels of protection offered to the victim who filed for the restraining order to keep you away from him or her include:
Emergency Protective Order (EPO)
It is a short-term restraining order that you will be issued to keep you away from the victim for a maximum of seven days. The emergency restraining order is usually temporary. You will, therefore, be issued with one that is permanent once the court decides that the victim indeed had to file a permanent protective order against you. It is usually issued in cases where there is a domestic violence case. The police will respond to the issue by requesting an emergency restraining order before they do their investigation.
Temporary Restraining Order (TRO)
A prosecutor will issue you a temporary restraining order if you are involved in a criminal offense. The restraining order will remain valid as long as your case progresses in court until the final decision is made. It can last for some time, depending on the period that your case will continue. Therefore, the purpose of the temporary restraining order is to protect the victim from making contact with you until you are issued a permanent restraining order, or your case has been concluded, and your case dismissal is approved.
Permanent Restraining Order (PRO)
A permanent protective order lasts up to five years and restricts you from making direct or indirect contact with the victim. Since it is a permanent restriction, it significantly affects your freedom. California courts will give the prosecutor and the defense a chance to present their cases for hearing before the decision that you will be issued a permanent protective order is made. The judge weighs the options and evidence for and against the issuance of the protective order, by making a decision based on the facts presented.
The level of protection against your case will depend on the danger that you put the victim or the threat that the victim is likely to face if you are let to walk as a free man. Therefore, it is a reason enough to make you seek help from an experienced attorney from The LA Criminal Defense Law Firm when there is a permanent restraining order filed against you.
How is a Restraining Order Served?
In case an individual files for a restraining order against you, the court will decide when it will be issued, by setting the date and time for the hearing. You are served with restraining order papers once the hearing is done to notify you that there is someone who wants you to keep away from him or her. The protective order papers have several details; the date and time for the hearing, documents filed by the victim to support your issuance of the restraining order, and a statement of any action that the victim requests to be taken against you. You are given between 10-20 days to respond to the case before the hearing of the case. If there is no proper service for you, the court will likely not issue you a restraining order. A process server or a law enforcement officer will be the one to grant you the restraining order papers, and it will not be served by mail as usual.
What Will Happen If You Happen to Violate a Restraining Order?
Under the California Penal code Section 273.6 PC, you will face severe consequences if you are granted a restraining order, and you fail to comply with the provisions stated. However, the court will have to prove that you indeed violated the terms of the restraining order. A restraining order hearing is then held, and the prosecutor proves that you violated specific provisions stated in the order. The terms that the prosecutor must prove are:
That a judge had issued a restraining order against you at one time
That you well knew that a restraining order had been issued against you and that you understood the provisions contained in the order. For the judge to prove that you knew the terms stated in the order, he or she will have just to ensure that you were familiar with the provisions in the law, even though you did not read them.
You could abide by the terms in the order. The court has no right to place an order that restricts your liberty in the wrong way. Therefore, you have an opportunity to challenge the court on the legality of the protective order terms by involving an experienced attorney if they are impossible to comply with.
You intentionally violated the protective order provisions. The court must prove that you thoroughly understood the terms of the order despite breaking it. Under the California Penal code Section 273.6 PC, the law protects you from the conviction if the order violation was inadvertent or accidental. If it was an intentional act, then you must face the penalties that come with it.
Penalties You Will Face for Violating a Restraining Order
You could face criminal charges if it is proven that you indeed violated the provisions of the restraining order that you have been issued. In California, if you violate a restraining order, the crime can be considered a felony or misdemeanor, depending on the number of times you have had convictions for the same, and if you left some injuries to the alleged victim or not.
If your conviction is a misdemeanor restraining order violation, you pay a fine amounting up to $1000 or face a jail term for up to 364 days in the county jail. What if the conviction is a felony? You will serve a jail term not exceeding three years in the county jail and a fine amounting to $10,000 because you had a previous criminal history. In case you left some injuries to the victim, you face a mandatory jail term of 30 days in the county jail.
You may ask yourself whether you have some specific rights despite having a restraining order taken against you. It depends on the privileges that you want. For example, it is illegal for you to possess a gun or any other firearm if you have a protective order filed against you. To comply with the restraining order provisions, you must sell your firearm to a licensed firearm dealer or surrender to any local law enforcement agency. If you intentionally own a gun while you are served with a protective order, severe criminal charges are taken against you, which will also depend on your criminal history. If found with a firearm and your case is treated as a misdemeanor, you pay a fine not exceeding $1,000 and serve a jail term of up to 365 days in county jail. If your conviction is treated as a felony, you pay a fine of up to $1,000 and serve a jail term of up to 3 years in the county jail.
Can You Get Probation If You Violate a Restraining Order?
Suppose you are found that you have violated the restraining order provisions. In that case, you are eligible for probation, where during that period, you must not be involved in any other crime, apart from the traffic rule. There are also some terms and conditions that you must follow during the same period. The conditions include:
You should be performing community service
That you make frequent visits to the probation officer
Reimburse any expense that is as a result of your violence
Pay the medical bills if you injured the victim
You undergo a mandatory counseling session
If you fail to comply with any of the probation terms, the court will likely revoke your probation and be sentenced under the law to the maximum custody time that is allowed.
Defenses to Restraining Order Violation
Contacting an experienced attorney from The LA Criminal Defense Law Firm will represent you during the court process. You violate the terms and conditions stated in the protective order. It is because the attorney understands the legal defenses of accusation related to restraining order violation. Some of the arguments that have successfully defended many people who have violated restraining orders like you are:
Lack of Knowledge That the Order Existed
For the judge to convict you of violating the protective order, he or she must prove before the court that you knew that there was a protective order that existed against you. No convictions can be held against you if you did not know that the order was in place, and you, therefore, did not violate the order intentionally. The defense can also apply to cases where you were not present during the issuance of the restraining order. Your attorney will have an opportunity to the court that you didn't know about the restraining order, and prove that you did not receive any restraining order notice. For example, the law could erroneously be issued to a different person, and you, therefore, do not deserve any form of punishment.
Defense to Order Violation: Lack of Intent
The prosecutor must prove that you intentionally violated the order if you are found to have violated the restraining order provisions. It is because accidental or inadvertent order violation is a legal defense that can be argued in your case and walk as a free individual. In such circumstances, it may happen that you have visited a specific place that you needed to be, and it happens that the same person who filed for your restraining order is in the same place. In that case, you will not be found guilty of violating the restraining law because you did not intentionally get into contact with the victim, and you did not know that he or she would be in the same place.
Inability to Follow the Protective Order
The court may impose in the restraining order, terms that are impossible for you to follow. In circumstances like that, there will be no conviction that you did not abide by the restraining order terms and conditions because you did not have the "present ability" to do so. For example, the provision in the restraining order requires that you do not pass a particular route because it is the same route that the victim uses. The same route is the only way that you use to access your place of work. In that case, your attorney will argue that you did not have the "present ability" to follow the court order, and you, therefore, did not violate the restraining order. Your attorney will request your protective order charges be dismissed and the terms and conditions in the law to be revised.
The Restraining Order was Issued Unlawfully
For the prosecutor to convict you for violating your restraining order, he or she must prove that it was lawfully issued. Your attorney can argue that the facts and evidence provided and used to grant you a restraining order was misleading and false. If it is found that the court used misleading information to issue you with a restraining order, the order would be considered as invalid, and you will not be liable for any charges related to the violation of the restraining order.
False Allegations as a Defense to Violation of Restraining Order
The defense is majorly used when there is domestic violence when the couple wants a divorce or child custody. The person who filed for the restraining order may falsely accuse you of violating the restraining law if he or she wants to get revenge in whatever abuse that you did. If there are wrong accusations that you did violate the restraining order, you should contact your criminal defense attorney, who will fight the allegations filed against you.
Contact a Restraining Order Attorney Near Me
When issued with a restraining order, your usual way of life can be affected. It will be difficult for you to move freely to avoid making direct contact with the person who the restraining order is protecting. It advisable that you contact your attorney when you are accused of violating a restraining order. Contact The LA Criminal Defense Law Firm if you have been issued a domestic violence restraining order. Our attorneys are well knowledgeable with restraining orders violation laws and are always ready to defend your freedom and rights. If you need more information on any other restraining order, do not hesitate to contact us at 310-935-1675 and feel free to share your issues.