Restraining Order
In certain situations, when someone is making another person feel unsafe through their actions, the person who is feeling unsafe will attempt to gain a restraining order. It is most common for someone to acquire a restraining order against someone with whom they were previously involved in an intimate relationship, but restraining orders can also take place between family members, friends, or even strangers. A restraining order dissuades the perpetrator of the threatening behavior from continuing to engage in this type of behavior, by establishing harsh penalties for violating the terms of the restraining order.
If you are interested in acquiring a restraining order against someone who is regularly making you feel unsafe, or if you are being accused of violating a restraining order, it is advisable to seek out the assistance of a legal professional. If you are looking for a restraining order, this person can make sure you receive the right type of restraining order, and ensure that the language in the restraining order is a tough as it needs to be. If you believe you are being falsely accused of acting in violation of a court ordered restraining order, this lawyer can help make sure that all of your rights are fully respected, and work hard to demonstrate your innocence. The best lawyers in the San Diego area work with Domestic Violence Attorney 619-393-8588, and many of them possess high-level expertise in restraining order law.
While you certainly can’t be expected to understand the intricacies of domestic violence law without formal legal training, it is probably a good idea to learn a bit about how restraining orders work in California, so you don’t enter the legal proceedings completely blind. Keep reading to learn a bit about restraining orders in California.
Types and Levels of Restraining Order
A restraining order is a court-issued document, that contains language which bans a person from engaging in specific types of behavior. Each restraining order is unique, and the judge is free to add completely original provisions based on the specific circumstances of the case. However, there are a few topics generally covered in a restraining order. Typically, a restraining order will prevent the defendant from engaging in any form of contact with the person requesting the restraining order. This usually involves a provision that bans the defendant from coming within a certain number of feet of the person requesting the restraining order. It may also involve provisions that prevent the defendant from contacting the victim in any fashion, including phone call, text messages, social media messaging, or even written letters.
For different types of situations, different types of restraining orders can be granted by the court system. In California, there are four different types of restraining orders available: domestic violence restraining orders, civil harassment restraining orders, elder abuse restraining orders, and workplace violence restraining orders. Most of these types of restraining are self-explanatory. Domestic violence restraining orders are applied in situations between two people who currently are or were formerly engaged in an intimate relationship. Civil harassment restraining orders take place between people who are not intimate partners, and are settled in a civil instead of criminal court setting. Elder abuse restraining orders are meant to protect those over the age of 64 from serious abuse. Workplace restraining orders are granted to protect employees from threatening behavior, whether it be from a fellow employee or person from outside of the workplace.
The types of restraining orders outlined in the paragraph above to do not come in just one form, rather different levels of protection can be applied to each of these types of restraining order, depending on timeframe and on the severity of the threat.
Emergency Protective Orders are issued in emergency situations, when a quick restraining order is needed in order to protect someone from imminent danger. This level of restraining order is most commonly seen in cases of domestic violence. If a police officer responds to a situation and believes someone is at serious risk of being harmed in the near future, they will contact an on-call judge. This judge can then quickly evaluate the specifics of the case, and then issue the EPO immediately, usually within a matter of minutes.
Once the EPO is issued by the judge, the police officer is required by California law to inform the defendant of the restraining order, if that person is present. An EPO goes into effect immediately after the judge issues it, and stays in effect a maximum of 7 days. This order can be extended, but only if the police officer or the victim goes to court and is granted a temporary or permanent restraining order by a judge.
A temporary restraining order typically lasts for 2 or 3 weeks, depending on the circumstances of the case. A TRO can be requested in two main situations: by a person looking to gain an extension of an emergency protective order, or by a person who believes they are the victim of harassing behavior. According to restraining order law, harassment refers to the illegal violence, purposeless behavior that seriously annoys or alarms the victim, or purposeless behavior that causes the victim to suffer from emotional distress. Since a TRO only lasts for 2 or 3 weeks, the court will hold a hearing with the alleged perpetrator and victim in order to determine if the issuance of a permanent restraining order is necessary in order to protect the victim from future harm.
A permanent restraining order will typically be granted only after the issuance of an EPO or TRO, and a subsequent court hearing. This court hearing will allow both the applicant and the defendant, along with their respective legal representatives, to state their cases and argue for or against the restraining order. After hearing from both sides, the judge will make a decision on whether or not to issue a restraining order.
If the judge does indeed decide to issue, the judge will first have to decide how long the PRO should last. At maximum, the PRO can last for up to 3 years, and be extended after it expires if the court deems that necessary. The judge then must decide what specific provisions will be included in the restraining order. As explained above, no two restraining orders are the same, but they generally contain certain provisions, such as requirement to cease engaging in any form of contact with the applicant. The restraining order may also require the defendant to leave a shared home, surrender any weapons and agree to not acquire weapons in the future, and pay the legal fees of the applicant
Violating a Restraining Order-Elements of Proof
A restraining order is designed to prevent the subject of the restraining order from continuing to engage in threatening behavior, by informing them that persistence in this mode of action will result in the application of serious penalties. These penalties are fully outlined in California Penal Code 273.6, which also outlines what must proven it order for an individual to be condemned of violating a restraining order. To be found guilty, a prosecutor must prove that a valid restraining order was actually issued by a judge, that you were aware of the restraining order, and that you intentionally violated the order. Let’s unpack these criteria in a bit more detail:
If a judge does indeed issue a restraining order against you, the law requires you to follow the conditions of the restraining order, even if you disagree with the terms. However, in some cases, restraining orders are issued by judges in a manner not consistent with the law. Occasionally, restraining orders are issued by judges who don’t actually possess the authority the issue that kind of restraining order, or the restraining order issued was not within their jurisdiction. If a restraining order is issued in an invalid fashion, then you cannot be found guilty of violating the restraining order, as one can never be bound by an invalid restraining order. If you are being charged with violating a restraining order, and have reason to believe that the restraining order may be invalid, it is advisable to contact a licensed attorney.
In order to be convicted of violating a restraining order, it must be demonstrated that you were fully aware of the existence of the restraining order, and its terms. You must have been given time to actually read the restraining order itself, otherwise it cannot be considered valid. In California, the law requires that the recipient of a restraining order must be given advance “notice” of the existence of the restraining order, and be told how their liberties will be restricted. The law dictates that this notice may be delivered to the recipient in a number of set ways. The judge may verbally read out the terms of the restraining order in court to the recipient. Alternatively, a third-party, such as an officer of the law, can present the written order to you in person, or orally inform you of the restraining order.
You can only be found guilty of violating a restraining order if it can be proven that you were aware of the fact that you were violating the restraining order. This means that you must have understood that your actions were in violation of the restraining order. If you only violated the terms of the restraining order as the result of an accident, say by accidentally running into her at a popular bar in town, then you could not be found guilty of intentionally violating the restraining order. However, it is important to know that you can be found guilty of intentionally violating the restraining order if it can be shown that you reasonably should have been aware of the fact that you were in violation of the restraining order.
Common Legal Defenses
People being charged with violating a restraining order under PC 273.6 usually turn to a few tried and tested legal defense strategies. To identify the legal strategy that is most appropriate for your individual case, it is best to consult with an attorney. Here are brief summaries of some of the most popular legal defenses for violation of a restraining order:
Lack of Awareness
You may be able to avoid being convicted under 273.6 if you can present evidence that shows you never were given notice of the restraining order. This defense strategy generally can only be utilized when you were not informed of the restraining order in a courtroom setting. Rather, this defense is most commonly utilized when the restraining order was delivered in written form. In this situation, it is possible to argue that the restraining order was delivered to the wrong address, or mistakenly presented to the incorrect person, usually someone with a similar appearance or name.
Invalid Restraining Order
You also may be able to evade being convicted under 273.6 if you can show that the original restraining order was not valid. There are a few reasons for why you can argue that a restraining order might be invalid. While a restraining order can prevent you from contacting the alleged victim, it cannot be unreasonably restrictive, say by preventing you from leaving your house or from visiting an entire city.
Lack of Intention
You also may be able to escape being convicted under 273.6 if you can successfully argue that you didn’t intend to violate the restraining order. This is an especially potent argument when you live in a small town, where it is likely that you and the person who applied for the restraining order will bump into one another. However, this excuse cannot be used in situations when you should have been reasonably aware that you were in violation of a restraining order, say in scenario where you forgot the recipient of the restraining order was always in a certain place on a certain day of the week.
False Accusation
Since restraining orders often involve high levels of emotional tension, and typically take place between people who were once involved in intimate relationships, it is not uncommon for someone to be falsely accused of violating a restraining order. Since a violation of a restraining can take place with no other witnesses or no record of the violation, it can often be difficult for someone to prove that they are being falsely accused. However, don’t despair, as Domestic Violence Attorney employs lawyers who are trained in the art of exposing false accusations. They understand how to poke holes in a false story, and make sure that the truth emerges.
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Violating a Restraining Order-Penalties
Violation of a restraining order under PC 273.6 is a misdemeanor offense according to California’s legal code. If found guilty of violating PC 273.6, you could face a maximum fine of $1,000, and maximum one year sentence in county jail. If the judge decides to be more lenient you may receive summary probation, and be obligated to participate in counseling services. Depending on the details of the violation, you may also be obligated to make payments to a shelter for battered women, or pay restitution to the victim.
If you are being found guilty of violating a restraining order for a second time within a 7 year window, and the violation involved the use of violence or the credible threat of the use of violence, the offense becomes a wobbler. This means that you may either be charged with a misdemeanor offense, and face the penalties described in the paragraph above, or be charged with a felony offense. In this situation, you would face either mandatory probation and up to a year in county jail, or between 16 months and 3 years in a California state prison and/or a fine of up to $2,000.
If the violation of the restraining order caused the protected person to suffer a physical injury, then the law requires that you face a sentence of at least 30 days in a county jail. You may also be subject to additional penalties if you violate a restraining order twice within one year, and the protected person suffers an injury as the result of your actions. Additionally, if your restraining order prevented you from owning a firearm, and you are found in possession of a gun, you face a misdemeanor offense. This offense is punishable via a max $1,000 fine, and max one-year sentence in county jail.