In California, a restraining order is issued in court to a defendant to protect domestic violence victims from having further contact with their perpetrators under Penal Code 273.6. The order also helps non-domestic violence victims, such as victims of civil harassment, stalking, elder abuse, or workplace harassment.
For an abuser, a restraining order prohibits contacting the person who applied for that court order. California has three protective orders: temporary restraining orders (TRO), emergency protective orders (EPO), and permanent restraining orders (PRO). The court can decide whether the order could be withdrawn or upgraded to a permanent restraining order depending on the nature or circumstances of the situation at hand. You could face serious penalties upon conviction for violating a temporary restraining order.
It could be detrimental, and therefore you require the services of an experienced criminal defense attorney who has a lot of experience helping defendants accused of violating TROs obtain favorable outcomes. Your lawyer should help you build a solid defense to see your charges dismissed or reduced.
At Los Angeles Criminal Attorney, we have lawyers who have spent many years defending suspects accused of violating temporary restraining orders in Los Angeles. Our attorneys aim to build strong defenses to help you achieve the most favorable outcome in your case. Contact us today so that we can start working on your case.
An Overview of The Temporary Restraining Order
In California, a domestic violence victim could apply for a temporary restraining order against you, the abuser, even if they have not suffered physical harm. For a plaintiff to obtain a restraining order, they must present themselves in court and apply for the order to be issued. A hearing must be held first for the victim to present their case and explain why they want a protective order against you. After the plaintiff files their request, the court schedules a hearing later.
The police issue an emergency protective order immediately if the circumstances under which a victim is applying for a protective order are dire and there is a need to address them immediately.
For example, if the situation is life-threatening. The emergency protective order comes before a TRO, and once issued, it takes effect immediately and lasts for one week.
The victim could request a temporary restraining order against you, whether you are present or not, during the petition. The petitioner for the TRO against you must ensure that you are served with court papers informing you of the restraining order within five days of the hearing. The TRO is only effective if you know the court has granted your victim the order against you. Therefore, if you violate a TRO, the prosecutor should show the court you know the restraining order to prosecute you.
A temporary restraining order must be served in person to be valid. If it is disseminated to you by any other means, the TRO is considered invalid. You can use that circumstance or situation as a defense against your charges of TRO violation. It also means that a judge cannot issue a permanent restraining order as it will be considered invalid.
In California, temporary restraining order application papers usually have the following components:
- The date and time for the scheduled hearing.
- The nature of the petition and the action to be taken.
- Any document the victim brings forth to support their petition for a TRO against you.
After you receive the notice, you have 10 to 21 days before the hearing date to file your response. To be issued a restraining order, you must have committed acts intentionally that caused or had the potential to harm or affect the victim in a manner that causes them to fear or be disturbed. The victim must have been disturbed either emotionally, physically, or psychologically.
Types of Temporary Restraining Orders
There are three main temporary restraining orders. These include the following:
- Domestic Violence TRO
Under California Law, domestic violence is a criminal offense that refers to abusing one’s intimate partner. The abuse involves the perpetrator intentionally using physical force in a reckless or threatening manner to harm a person with whom they have a personal relationship. A close partner refers to the following:
- Your current or former registered domestic partner.
- Your current or former spouse.
- Your current, former cohabiting partner.
- Someone with whom you have a child.
- Someone with whom you had a serious dating relationship.
- Your former or current fiancé(e).
A prosecutor could charge you with domestic violence if you commit the following acts:
- Sexually assaulting your partner.
- Intentionally threatening to harm the victim or your partner.
- Inflicting physical pain on your victim deliberately and recklessly.
- Intentionally destroying the property of your victim.
- Stalking, harassing, or intentionally harming your victim.
Who Can Apply For A Domestic Temporary Restraining Order?
Earlier, domestic violence victims could only petition for a restraining order against a close relative, such as a spouse or an ex-spouse, but now the scope for the petition has widened. A domestic violence victim can petition a TRO against relatives and individuals with whom they have a close relationship apart from the traditional family setup.
The terms under which a plaintiff could petition for protective order depend on California’s laws of abuse. Domestic abuse involves intentionally inflicting physical abuse, disturbing a person’s mental calm, stalking, and threatening the victim.
Once Issued With A Domestic Violence TRO, the Defendant Should Do The Following:
If the judge issues a TRO against you, you receive a copy of the notice and the scheduled day for a hearing. You have 20 days to respond to the order and prepare for the hearing. The order has terms that act as a guide for what you should and should not do.
You must respond to the notice promptly before you run out of time if you intend to challenge the enforcement of the order. Once you receive the order, you should:
- Read The Whole Notice
You must read all the requirements of the protective order against you so that you may not violate it. Also, you should:
- Find out the date of the hearing and the time you have to file a response to the accusations made.
- Find out what the petitioner accuses you of and what evidence they have against you.
- Know your constitutional rights. For example, the right to an attorney, to give a response, and to receive a hearing notice.
- Contact A Lawyer Experienced In Protective Order Matters
You must seek legal counsel from an attorney experienced in defending restraining orders. They will help you build solid defenses that could see you have a positive outcome in your case. Read and review the TRO against you with your lawyer to know the allegations and how you will handle the case.
- Gather and Organize Your Documents and Evidence
With your attorney's guidance:
- Gather and document physical evidence that addresses the accusations put out by your accuser, such as videos through CCTV footage, events, and photos. Or non-physical evidence such as GPS coordinates, phone records, emails, or receipts that could act as your alibi.
- List and also bear contact information of anyone who could witness the events about what you are being accused of by the petitioner.
- Attend the Court Hearing
You must attend the hearing, as failure to do so could see the judge issue a PRO against you. The rules of a permanent restraining order are stricter than those of a temporary restraining order.
Some of the restrictions with a PRO include the following:
- Temporary child custody was granted to the petitioner, and conditions were placed on visitation rights.
- You could be required to surrender custody and care of a family pet.
- You may be ordered to cater for the victim’s rent, mortgage, child support, and household bills.
- Your gun rights may be withdrawn.
Attending the hearing could be your only chance to present your defenses, question the allegations brought in by your accuser, and tell your side of the story. Make sure you adhere to the rules and regulations of a court and arrive on time.
What Happens If Found Guilty of the Violation of a Domestic Violence TRO
If you are found guilty of domestic violence, and a judge issues a temporary restraining order against you, you will be required to do the following:
- Not to contact the victims directly/ in person or indirectly through the phone, mail, or any other means.
- Not to stalk, abuse, follow, assault, harass, sexually assault, threaten or destroy the victim's property.
The requirements of a domestic violence protective order include the following:
- Vacating the home you and the victim were living in regardless of whether you are the homeowner or tenant.
- If married to the victim, you must pay alimony and child support.
- Paying back finances accrued from seeking medical services, psychological counseling sessions, and dental services undertaken due to the abuse.
- Settle the victim’s lawyer fees if they cannot pay for the services and you earn more than the victim.
- Attend counseling or a batterer’s treatment program.
- Granting all ownership of a pet you shared with your accuser to the victim and making no contact or harming it.
- Give the victim temporary custody of your children. Interaction with your children will be minimized and determined by the court. When, where, and how you meet with them is determined by a judge.
- Grant anything that is asked of you by the victim in court.
- Attend anger management classes for a period determined by the judge issuing a restraining order against you. This is in cases whereby the abuse affected minors.
- Grant temporary custody to the victims for any property you own jointly.
- Temporary Restraining Order for Divorce Cases
During divorce proceedings, a judge could issue a restraining order to uphold the couple's financial status quo and their interaction with the children, if any. The aim of a protective order during divorce cases is to bar either partner from the following:
- Liquidating, transferring, or doing away with assets.
- Canceling health insurance.
- Moving children from one state to another without the partner’s or the court’s consent.
- Borrowing loans and accruing huge debts.
- Taking the children or other partners off from life insurance.
- TRO Against a Non-Family Person
In California, violence victims could petition for TROs against perpetrators who are not family members, people with whom they have close relationships, or acquaintances the victims feel are disturbing their peace. This type of TRO helps avert:
- Incidences of stalking or harassment.
- Workplace violence.
- Sexual assault.
- Assault against an elderly or a vulnerable adult.
- Gun violence under red flag laws.
Once you are issued a Temporary restraining order, the information about the order is stored in a common database. Law enforcers of any state can access it, and the order is active no matter what state you go to.
This means that if you move from California to, say, maybe, Arizona, the temporary order still stands, and you will still have to inform the local police about it. If you are issued a restraining order in another state and then move to California, the local police in California will still enforce the order.
Penalties For Violating A Temporary Restraining Order
You could face heavy penalties if convicted of a violation of a TRO. In California, under Penal Code 273.6, it is a crime to violate a restraining order, and violation of a protective order is charged as a misdemeanor, with fines of up to $1000 and or a jail term of one year if convicted.
In other instances, the crime of violation of a temporary restraining order could become a wobbler, depending on the number of times you have been convicted for the breach. A wobbler crime is an offense that could be charged as either a misdemeanor or a felony.
The offense becomes a felony if you have been found guilty of violating the protective order for a second time and acts of violence accompany the offense. Therefore, if you are a repeat offender, you could face a sentence of up to 3 years in a state prison or be fined $10000 if you are convicted.
A prosecutor must prove the following elements for you to be charged with violating a TRO:
- You are aware that a restraining order was issued against you.
- You are in a position to follow the restrictions of the restraining order.
- You intentionally violated the requirements of the restraining order.
- The TRO is valid and was issued to you by the court through the correct legal proceedings.
- You received a notice of the restraining order issued against you.
You are guilty of violating a protective order if you know the order issued against you and have received the notice.
If you are a non-citizen and are found guilty of violating a TRO, you could see your immigration rights withdrawn. The court could deport you or find you inadmissible in the US. Your gun rights could be revoked if you are found guilty and you cease owning or having the ability to purchase a gun.
Legal Defenses To The Violation Of A TRO
You want to contact and seek the services of an experienced criminal defense attorney if you are found guilty of violating a TRO. To have your charges dismissed or reduced, you must hire a lawyer with years of experience defending defendants accused of violating a TRO. The attorney must have had positive outcomes in the cases they handled.
Some of the solid defenses that you could use or adapt to that could help you fight the charges of violation of a TRO against you and see your case have a positive income include:
There Is No Existence Of A Legal Or Valid TRO
You can only be guilty of violating a TRO if it is legal and valid. You could have your attorney prove that the TRO against you was issued to you unlawfully or that a judge had no legal grounds to give the order against you.
You Were Not Aware Of A Temporary Restraining Order Against You
To be termed guilty of violating a TRO, you must first be aware of such an order against you. This is a strong defense, as no judge could convict you if you did not receive a copy of the notice of a TRO against you.
You could also defend yourself by stating that you did not understand the terms of the restraining order. A prosecutor has no form of proof whether or not you actually understood the terms and cannot, therefore, prosecute you for the crime. The prosecutor can only prove that you received the notice of a TRO against you.
You Did Not Violate The TRO Intentionally
If you did it intentionally, you are only guilty of violating a TRO under Penal Code 273.6. You should collaborate with your attorney to prove that you violated the restraining order by mistake or accident.
For example, you can prove you came into contact with the protected individual by unknowingly visiting the exact location, such as a city, a mall, or a training center, and just realizing they are there too.
Once you realize that you are in the same locality as the protected person, you should vacate immediately. You should not try to converse with or greet them, and you should not fall for their trap if they want to speak to you and seek reconciliation.
You can defend yourself by stating that you did everything possible to ensure that you kept the terms of the order. You could display all the actions you undertook not to violate the order even though you accidentally came into contact with the protected person.
Other Types of Restraining Orders
Civil Harassment Protective Order
You could face charges of harassment, and the court issue a protective order against you if you are found guilty of:
- Abuse
- Serious harassment
- Stalking
Civil harassment protective order will apply if the victim petitioning against you is not one with whom you have a close or intimate relationship. The victim could be your neighbor, friend, or roommate. The victim could also be a distant relative who does not fall into the category of family members eligible under the domestic violence protective order.
Under California law, you could be issued a civil harassment protective order against you if you stalk, severely assault or bother your victim. The threats of abuse or physical harm could also see you issued with a restraining order against you if the victim was convinced without a doubt that you would hurt them.
Threats to the victim could either be oral or electronically transmitted. For example, you could threaten the victim in person or disseminate threats through messages via text or email or even by calling them. After the court issues you with a civil harassment restraining order, you will be required to do the following:
- Have no contact with the victim, including not bothering them in person or via electronic machines.
- Have no contact with any close family member of the victim.
- Not visit the victim’s workplace or neighborhood.
- Not to visit places the victim frequently visits, such as the park or mall.
A civil harassment restraining order could affect your gun rights. If the court issues the restraining order against you, your privilege of possessing or owning a gun will be withdrawn.
Your immigration rights also could be affected if the court issues a civil harassment restraining order against you. Therefore, you will have to seek prompt services from an experienced criminal defense attorney to prevent you from being deported or having your rights withdrawn if you are a non-citizen.
Elder Or Dependent Adult Abuse Restraining Order
In California, if you abuse a senior citizen or individuals over 65 years, you could have a restraining order against you. You could also be issued a protective order if you harm a dependent or disabled person.
A dependent person is an individual who is between the age of 18 years to 64 years who has specific mental or physical disabilities and therefore requires help from other individuals. The disabilities prevent the individual from protecting themselves when abused.
Elderly abuse may be physical abuse, neglect, financial fraud, or isolation withholding caregiving services. Any action that causes physical pain or mental disturbance is a form of elder abuse.
Once issued with the elder or dependent adult abuse protective order, you will be required to do the following:
- Not come into close contact with the victim.
- Move out from the home that you share with the victim.
The restraining order could see your gun rights and immigration rights withdrawn.
Find a Criminal Defense Attorney Near Me
Under Penal Code 273.6, violating a temporary restraining order is a crime that could see you face severe penalties. Once you are issued a protective order, you want to read and understand the terms of the order. You must follow the order's requirements if you are guilty of domestic violence.
In instances where the prosecutor charges you with the violation of a TRO, you want to seek the services of an experienced criminal defense attorney. Your lawyer should have helped defendants accused of violating a TRO and had positive outcomes from those cases.
At Los Angeles Criminal Attorney, we have lawyers ready to take on your case and build defenses that could see your charges reduced or dismissed. Contact us at 424-333-0943 so that we can start working on your case.
