Restraining Orders

If you violate a restraining order issued against you, then you could face serious charges. The state of California takes seriously all domestic violence cases, which is why the courts grant restraining orders to protect the victims. If you violate the terms of the order, you will need an attorney who can competently defend you. Our attorneys at California Criminal Lawyer Group are well-trained to handle such cases and keep you from facing the harsh penalties of the charges. Our attorneys will collect the necessary evidence and examine the witnesses to come up with the perfect defence for you. We serve the whole of the San Jose area in California

Definition of a Restraining Order

A restraining order, which is also called, protective order or stay away order is a form of protection issued to a victim of abuse against the perpetrator. Roommates, ex-lovers, children, spouses, and coworkers can be regarded as victims. The order warns the perpetrator (restrained person) to stay away and refrain from any actions that may harm the victim(s). These actions include contacting the victim, going close to the victim, or visiting the areas frequented by the victims, which may be work and home. The order may also direct the perpetrator to leave the home or apartment that they share with the victim even if the home is under the accused.

Types of Protective Orders

There are several types of restraining orders issued by California courts that a victim of abuse can ask for. They include:

1. Domestic Violence Restraining Order

A domestic violence restraining order protects the victim of domestic abuse against repeated abuse or threat of abuse by the perpetrator. A victim asks for this kind of restraining order if they have been threatened by someone or if they have a close relationship with the abuser. Having a close relationship in this sense means you are married, divorced, have a child together, or are related by blood to the victim. If the abuser and victim have a child who is also at risk of abuse, the victim may seek a restraining order to protect the child from the abuser.

People who also used to date, or those who used to live together also qualify for a domestic violence restraining order. Before a judge issues a restraining order, the court must establish that the accused has caused harm, created fear, or threatened the victim. A victim may choose to attend a court hearing; however, this is not mandatory. The victim's lawyer can deliver a copy of the restraining order to the victim. Also, the accused person is notified of the restraining order issued against them. Law enforcement officers are directed to protect the victim from the abuser immediately.

2. Civil Harassment Restraining Order

A civil harassment protective order is granted to protect the victim from actions that may cause them fear or harm. Victims of abuse, sexual assault, assault, or other serious harassment can request this type of restraining order. Unlike the domestic violence restraining order, victims of civil harassment have no close relationship with the perpetrators. The abusers can be their neighbor, classmate, workmate, or any other person not related to them. However, if the victim dated one of these people at a certain time, then a domestic violence restraining order will be issued instead of civil harassment.

3. Elder or Dependent Adult Abuse Restraining Orders

Adult abuse restraining orders are issued to persons who are 65 years old or more. A person who is disabled but between the age of 18 and 64 years also qualifies for this type of restraining order. If someone is at risk of being a victim of abandonment, financial abuse, deprivation, or harmful treatment, then they also qualify for this order. A victim can qualify for both domestic and dependent abuse restraining orders if the abuser is closely related to them.

4. Workplace Violence Restraining Order

Workplace violence restraining order protects an employee from facing emotional, physical, or sexual abuse in the workplace. A workplace restraining order prohibits the abuser from going near the victim, harassing them, or owning a weapon, particularly a gun. This order also prohibits the accused from going close to or contacting the victim’s close family members. The employer should be the one to seek the restraining order on behalf of the employee.

5. Gun Violence Restraining Order

A gun violence restraining order prohibits a person from owning a gun, ammunition, or magazine. It also orders the abuser to return any guns or ammunition that they own and not to purchase a gun or ammunition within a certain period. An accused’s close family or a law enforcer are the only people allowed to request for this type of restraining order if they feel the owner is a threat to himself or those close to him. You can report to the police if you are not a close family member and have them make a request for the restraining order. Keep in mind that a gun violence restraining order cannot order the owner to keep off the victim or not to contact them or move out of the home if they are living together.

6. California Juvenile Restraining Order

A juvenile restraining order is issued to protect a minor (protected person) against violence or threat of violence from the abuser (restrained person). A juvenile restraining order can last up to three years from the date of issue. During that period, the restrained person is prohibited from contacting the minor in any form, harassing and abusing the minor and stalking or surveilling the minor. The restrained person is also prohibited from owning a gun. Those that are mandated to request for a juvenile restraining order include a Social worker/ probation officer, caregivers, guardian, parents, or an advocate of the court.

The juvenile order is issued by a juvenile court. Once the judge approves the order, the restrained person is notified immediately to prevent them from contacting the minor. Also, the California Law Enforcement Telecommunication System (CLETS) informs all the law enforcement agents within California.

7. Private Postsecondary School Violence Restraining Order

A student in a private postsecondary school is eligible for a restraining order if there are any threats or violence against them. This order also protects all the student’s close family members from any abuse from the restrained person. The restraining order forbids the restrained person from contacting, abusing, or threatening the minor. It also prohibits the restrained person from owning a gun, magazine, or ammunition. The chief administrator of the student school or any other employee is given authority by the administrator to request for the restraining order. The court must establish certain elements before the order is granted. They include:

• Proven threats of violence
• The restrained person conducts himself in ways against the labor dispute laws.
• The restrained person conducts himself unlawfully.
• The threats against the protected person are issued outside the school but can be carried out in school.

8. Transitional Housing Misconduct Restraining Order

Transitional housing misconduct restraining order is issued against a previously homeless person who is now under the transitional housing program when they have gone against the rules of the program. Some of the behaviors that are against the housing program rules include; threatening or attacking any other participant or employee of the program. A person who runs the organization or the program has the right to request for the restraining order. Only the organizations or housing programs protected under the transitional housing misconduct act can request for this type of restraining order. The head of the program or organization is the only one with the authority to ask for the restraining order.

Levels of Criminal Order Protection

California states issues restraining orders together with certain levels of protection, depending on the severity and frequency of the abuse. These levels include:

1. Emergency Protective Order (EPO)

Emergency Protective Order is an order issued to the victim if they are in immediate danger from the perpetrator. A law enforcement officer is mandated to request for the protective order on behalf of the victim if they determine there is imminent danger. The order is usually issued within 24 hours from the time the officer requests it. In California, judges or commissioners should be available all the time to issue these orders. Once an officer requests for them, the judge or commissioner must establish a few facts under section 6251 of the Family Code before granting the order. These facts are:

• The Officer of the court has sufficient evidence of violence against the victim to request for the EPO.
• A dependent is in immediate danger of harm.
• A child is in immediate or presently in danger or at risk of being abducted or harmed.
• If the order is granted, it will prevent the abuser from repeating their abusive actions against the victim or their dependents.

Once the judge approves the order, it takes effect immediately and can last between two to seven days. If the victim asked for the order against a spouse or a person living with them, the judge can order that person to move out of the home. The judge may also order the accused person not to contact the victim in any way.

An emergency protective order protects the victims of abuse from imminent danger as they wait for a permanent order. The order gives them time to go to court and request a hearing for a permanent restraining order.

2. Temporary Restraining Order (TRO)

A temporary restraining order is a restraining order that is limited in time. It can last up to 25 days from the date of issue. A judge awards the order if they determine that the victim is in danger and needs immediate protection. Once the period lapses, the judge will order for a hearing to determine whether there is a need for a permanent restraining order. This order is normally issued even without giving the defendant a chance to defend themselves.

3. Permanent Restraining Order

A permanent restraining order comes after a temporary restraining order has been issued. Before the permanent injunction is granted, there is a hearing with both parties present. The judge will hear both side's arguments before determining whether there is sufficient evidence to warrant a permanent restraining order. The length of the restraining order will vary depending on what type of restraining order it was issued under. In California, if the order is issued under the domestic violence order, then it can last up to 5 years.

Definition of Violation of Restraining Order According to California Law

Failing to honor the terms of the order becomes a crime, which is referred to as restraining order violation. California penal code section 273.6 warns against violation of a court-issued restraining order Violating the order is contempt of court and is a serious offense which can lead to the arrest and prosecution of the accused. For you to be convicted of this offense, the prosecutor must prove that: (1) You were aware of the restraining order; (2) The judge issued the protective order; (3) You intentionally violated the terms of the order; (4) You had the ability to abide by the order.

Obtaining a Restraining Order

When a person is facing abuse or impending danger from someone else, he/she seeks the help of the court for protection from that person. The victim is required to fill out a couple of paperwork with the court when making the application. They may also seek the services of an attorney to help file for the restraining order if they are not in a position to do it themselves. A victim does not need to go to court to get some levels of the restraining order. The only important thing is that they fill out the forms. However, if the victim needs a permanent order against the abuser, they will have to go to court for the hearing.

How the Restraining Order Affects a Person

Having a restraining order against you means you are going to face some unpleasant repercussions. Some of these repercussions include:

• Limiting you to certain areas and things. You will not be allowed to visit a certain place or enjoy certain things mainly due to the fact that the protected person is close to the area.
• You may also be limited to your house.
• You will not also be allowed to own, buy, or use a gun.
• If you are an immigrant, violating the restraining order may also affect your immigration status.

Best Defense for Violation of Restraining Orders

If you are facing a violation of restraining order charges, you will need to consult a lawyer. An attorney will come up with some of the possible defences to help you fight these charges and help you avoid some of the severe penalties. The possible defences include:

1. Absence of Intent

Your attorney should show that you were not aware of the restraining order issued against you hence no conviction. You cannot violate something you are not aware of. Usually, this defense is used in case you unexpectedly meet the victim in a public setting.

2. False Accusation

Your attorney may also argue that the victim is falsely accusing you of the crime. The victim may lure the accused into a meeting in order for them to violate the terms of the order. False accusation usually occurs when the victim is either bitter or angry at the accused.

3. Lack of Knowledge

For you to be convicted for the crime, the prosecutor must prove that you were aware that the restraining order was issued and had taken effect. If you failed to receive the notice of the restraining order in place, then there is a lack of knowledge. Lack of knowledge is important for the prosecutor to prove his case, and lack of it results in acquittal.

4. Inability to Abide by the Restraining Order

Lack of the ability to abide by the restraining order is also another defense your attorney can use to defend your case. Your attorney should prove that you did not have the ability to abide by the terms of the restraining order.

Possible Penalties for Violating a Restraining Order

If the courts find you guilty of violating the terms of the restraining order under section 273.6 PC of the penal code, you could face severe consequences. In California, the offence is charged as a wobbler offence. Wobbler offence means it can be charged as either a misdemeanor or a felony. Your criminal history and all the facts of your case will determine how you will be charged. If this is your first offence, the case will be charged as a misdemeanor. According to the law, you could face up to a year (365days) in county prison or a $1000 fine or both. The case becomes a wobbler offence when you have second or more convictions or if you were violent against the victim. When charged as a felony, you could get a jail term of three years in state prison or a $10000 fine or both.

Related Offense to Violation of Restraining Order

1. Stalking

California law defines stalking as continuously harassing a victim in terms of following them or making threats that are intended to harm or create fear. For the action to be a crime, the prosecutor must prove that the threats and actions are credible, continuous, and malicious. Stalking is similar to a violation of restraining order in the sense that an abuser violates the terms of the order by getting close to the victim and issuing threats. So, the crime can be charged alongside the restraining order violation. You will face a jail term of 365 days (one year) or a $1000 fine or even both if you are convicted.

2. Cyberstalking

Cyberstalking is similar to stalking only that, in this case, the threats are issued online. California law defines the lawful act of cyberstalking as placing a person or their immediate family in a state of fear by issuing threats through electronic devices. The abuser threatens the victim of exposing them and their secrets to a third party so as to either cause harm, harass, or get in contact with the victim.

Cyberstalking qualifies as a violation of a restraining order, and the prosecutor may charge you alongside it. If you are found guilty or the crimes, you may get a jail term of 365 days (one year) or a $ 1000 fine or both. The prosecutor should prove the following facts for you to be convicted of the crime; (1) You used an electronic device to create fear to the victim or people closely related to the victim; (2) You gave out the victim's personal information to a third party for them to harass or make unwanted contact with the victim.

3. Criminal Threats

Issuing criminal threats to a person is a serious charge, according to California law. Threatening a person involves issuing threats of crime that could result in death or injury. In California, criminal threats can be charged as a wobbler offence, which means they can be charged as a felony or misdemeanor. If charged as a felony, you risk getting a three years’ jail term in state prison or $10000 fine or both.

California state also charges criminal threats as part of its three-strikes law. So if you are convicted, you could get a minimum of 25 years in a state’s prison. Criminal threats violate the terms of the restraining order, which means the prosecutor will charge you with both crimes.

Find a Criminal Attorney Near Me

A restraining order is issued to protect victims of abuse from present or future abuses or threats from the perpetrator. The order directs the accused to refrain from any activity that may cause harm or fear to the victim. When a person goes against the terms of a restraining order, the law describes that as a contempt of court, which is described as a criminal offence. The offence carries severe penalties, which is why you need a top-notch attorney to defend you.

Our attorneys at California Criminal Lawyer Group have the relevant skills and experience to defend you to the best of their abilities, ensuring you avoid the harsher penalties. You can reach us on 408-622-0204 for a consultation.