Family and intimate relationship disagreements can result in verbal threats, physical abuse, harassment, and stalking. Due to the need to offer protection to casualties of domestic abuse from further harm or threats, courts issue temporary restraining orders (TROs), which are restrictions that require the accused to refrain from contacting the petitioner for a specific period. If you are on the receiving end of this order of protection, you are likely to feel betrayed and confused, primarily if you feel you don’t deserve it.
A TRO is an indication of a pending trial, which will determine if a permanent restraining order is necessary. If you lose the trial, a permanent restraining order may be issued, and this might have serious consequences. If you have been served with a TRO due to domestic abuse, we invite you to speak to our defense attorneys at the Los Angeles Criminal Attorney. We will help you understand your rights and guide you to avoid mistakes that might cost your case.
Overview of a Temporary Restraining Order
A TRO is a court-issued injunction that temporarily protects the petitioner from domestic violence. A TRO in domestic abuse cases is issued if the petitioner didn’t file a police report. However, in most cases, victims of domestic violence file a statement with the police and then go ahead to request for a TRO.
California FC 6211 outlines domestic violence as abuse against:
A spouse or former spouse
A cohabitant or ex-cohabitant
A person whom, you as the accused has or had an intimate relationship with
A close relative like a sibling, grandchild, child or parent
Abuse under the statute means knowingly or recklessly inflicting, or trying to inflict bodily harm or sexual assault. Family Code 6320 allows the court to issue a temporary restraining order prohibiting you (the accused) from engaging in the following conducts towards the petitioner for three weeks:
Coming within a specific distance
Reaching out directly or indirectly
Destroying personal property
When the order is issued, the judge might order you to move out of the house temporarily. You will be required to take your belongings, personal clothing, and stay away from the residence until the pending trial is heard and determined.
Temporary Restraining Orders are a Serious Issue
If you are served with a TRO because of accusations of domestic violence, then you should understand this is a grave issue that requires all your attention. You may panic because of the thought that you will have to stay away from your family or loved ones for some time before the case is determined. Although you will feel angry and hurt, you should not try talking to the petitioner or try to make mend because this will be a violation of the restraining order and could result in criminal consequences.
Thankfully, TROs are temporary at first, which means you have time to make things right. If a petitioner requests temporary restraining order against you because of domestic abuse, you have the right to be served with a notice of the order. Remember, TROs are not like other restraining orders, which require you to be served with a notice when the petitioner requests for a protective order, attend a court hearing and defend yourself. With a temporary restraining order, you can only comply with its instructions and wait for the trial day to defend against it.
Before a TRO is issued, the person complaining of domestic violence has the burden of proof and must convince the judge they are entitled to the protective order. Unfortunately, the burden of proof is low, and judges or judicial officials sometimes make mistakes and grant TROs where they are not deserved. Even if this is your situation, when the order is issued, you have no option but to comply because failure to do so can result in criminal consequences.
Remember that the protective order comes with a lot of sanctions and consequences. Therefore, if you are facing allegations of domestic abuse, make sure you retain the services of a Los Angeles Criminal Attorney who understands these protective orders.
In Case you have a TRO Against You
What happens after a petitioner requests a TRO is that the judge or judicial officer weighs the reasons for requesting the protective order. If they are satisfied with the need to protect the petitioner, the order is granted. A court date and time for a hearing are set, and then the TRO papers are delivered to the accused. Respondents are served with copies to put them on notice that a petition has been registered against them.
The TRO will contain the date and time of trial, a report of the action requested, and any other relevant paperwork the petitioner might have used in court to support the request. Once you are served, there are specific steps that you should take. These steps include:
Read Through the TRO
TRO orders are not the same. Each of them is unique based on the reason for the request. For this reason, even though you are panicked, take the time to read through the document as soon as possible. Remember, the order takes effect once it is served. Therefore, if you are served but fail to read the document, you might end up violating some of the orders given, which will result in criminal charges. The good thing with reading the TRO through is because it contains the things you should do and those you should refrain from doing.
If you live together with the petitioner, the order might request you to take your belongings and leave the premises until the case is determined. Others will require you to refrain from any form of contact with the petitioner as well as other people related to the case like kids. The court might allow you particular forms of contact like texting, calling, or maintain specific responsibilities like paying bills and performing particular tasks. The best way to avoid violating the order and move on is by understanding its terms and conditions.
Comply with the TRO
The only and best way to prevent a TRO from turning into a permanent restraining order is by obeying the instructions in it. This should be the case even where you feel the judge made an error while issuing the order, or it isn’t deserved. As you adhere to the TRO’s instructions, reach out to a criminal defense attorney who understands domestic violence TROs to begin preparations for the permanent protective order hearing.
Some of the things you will need you will do as part of the preparations for the trial include:
Collecting physical evidence relating to the events or incidents the petitioner is referring to in the TRO. The evidence can be in the form of videos, voice recordings, pictures, clothing, or objects.
Gather all records or documents that relate to the domestic violence incident referred to in the TRO. These records can be in the form of letters, text messages, emails, phone or GPS records, computer records, or anything that might help prove your side of the story.
Come up with a list of prospective witnesses. If you think someone might have witnessed the alleged domestic violence incident that led to the TRO, you should track them down and jot down their statements. Remember to get the contact information of these people in case they are required to testify in court.
The above pieces of evidence are critical in your case. The reason being, if the claim of domestic violence was fabricated or distorted, video, audio of photo evidence can prove otherwise. If the petitioner claims you were at their apartment stalking them, you can use GPS records to show your location at the time the petitioner claims you were stalking. If the TRO is due to repeated calling and texting, your phone records will be used to prove otherwise. It’s critical that as you go to meet your attorney, you present this evidence to them so that they can prepare on how to use it to make the outcome of the trial to be in your favor.
You are required to file a response to the TRO at a specific time. If you fail to do it within the provided time or fail to respond entirely, the petitioner will be granted a permanent restraining order. It’s essential to consult with your attorney about the answer or response to the restraining order. Remember, you are giving your side of the story through the response. As for this reason, it’s essential to make sure the answer or response you give shows the reason why you didn’t threaten, stalk, harass, or molest the complainant in any way. Before filing the response, have your attorney review it thoroughly and ensure it has all it takes to win the trial.
Attend the Hearing
You can choose to attend the hearing or have your attorney attend on your behalf. Keep in mind if you or your attorney fails to appear in court, the petitioner will get what they want. In the hearing, you will be given time to tell your side of the story. The judge will get the story clearer if you are the one sharing it and not your attorney. Therefore, even if you have an attorney representing you, be available at the hearing to increase the chances of the outcome being in your favor.
A lot of emotions are involved in these cases because you feel betrayed by an intimate partner or family member. For this reason, it’s good to follow the instructions of your attorney and avoid any emotional outbursts that will prove the petitioner’s claim and undermine your case.
It’s worth noting that if you comply with the terms of the TRO when it’s due to expire, the court might not renew it. However, a violation of the protective order will cause more problems.
Violation of a TRO
California PC 273.6 is the statute that outlines restraining orders. If a TRO has been issued against you and you fail to comply with its instructions, you will be subject to severe consequences. However, the prosecution must first prove that the TRO was indeed violated for the restrained person to face criminal consequences. Some of the elements that the prosecution needs to prove during the hearing include:
A Judge Issued a Legal Temporary Restraining Order Against you
As the accused, you are only bound to the terms of the TRO if it is valid. If the order is illegal, even if you violate its terms, you won’t be subject to criminal charges. If a judge errors in issuing a TRO without a good reason or a restrictive order is issued by a court that lacks the mandate to do so, then it will be invalid. The prosecuting attorney must prove that the court that issued the order was mandated to do so and gave the order on a legal basis.
You Had Knowledge of the TRO
Emergency ROs are often issued by police verbally. However, for a temporary restraining order, you must request the court. Upon granting the order, a copy will be delivered to you in person. The court requires the prosecutor to show that you knew of the TRO.
You Knowingly Breached the TRO
Once the prosecutor proves you knew of the TRO, the next step will be to demonstrate that you breached the terms of the order. Remember that you might read the instructions of the order but still feel the urge to contact the petitioner to sort things out. If the order instructed you not to contact the petitioner in any manner, calling and texting after being served with a restraining order is enough evidence to prove a violation of the terms.
Penalties of TRO violation
As mentioned earlier, if it is determined that you violated the terms of a restraining order, you will be subject to criminal charges. You can be charged with either a misdemeanor or a felony, but this depends on whether you have a prior conviction within the last seven years. However, typical restraining order violation is a misdemeanor whose penalties include:
A maximum of 360 days in jail
Up to one thousand dollars in court fines
If you are sentenced to probation, you will be required to do the following:
Take part in anger, drug or domestic violence counseling program
Compensate the victim for medical bills and counseling
Payment of battered woman shelter
Mandatory 30-day incarceration if the petitioner sustains physical injuries
When the preferred charge by the prosecutor is a felony, upon sentencing, you will be subject to the following consequences:
State prison incarceration for 16, 24, or 36 months
No more than $10,000 court fines
A maximum of twelve months in jail
Note that if you are issued with a restraining order, if you possess a firearm, you should sell it or relinquish its ownership because failure to do so can result in further charges.
Legal Defenses for Violation of a Temporary Restraining Order
Complying with the terms of a restraining order, especially where your children or intimate partner are involved, is not easy. You might have knowledge of the terms of the order but still, disregard them because you feel betrayed. If this happens to you, the Los Angeles Criminal Attorney is available to defend you against the charges. Discussed below are criminal defenses that can be used to fight allegations of TRO violation:
Lack of Knowledge of the TRO
As mentioned above, you will end up with a conviction if the prosecution can demonstrate you had knowledge of the order. If you didn’t know the order was issued, then you are not guilty.
In the case of a TRO, you can argue that you were not in court at the time of issuance of the order, or you were never notified or advised about it. You could also claim that when the order was delivered, it was delivered to the wrong address or people hence the reason you never got to learn about it.
Lack of Intent
Your criminal defense attorney can also assert that the breach of the restraining order was accidental or involuntary. This is because the prosecution earns a conviction when they prove the violation of the order was advertent.
If the order requires you to keep a distance of 100 meters from the petitioner, but then you accidentally meet in a public place, there is no way you will end up with a conviction for violating the restraining order.
Inability to Comply with the TRO
When a judge issues a restraining order against you, the terms of the order must be well thought to ensure you have the ability to obey or follow them. It’s for this reason you can’t end up with a conviction if you lack the present ability to obey the terms of the order.
Other legal defenses you can use include arguing that you are falsely accused of a violation, or the order was unlawful. Applying the above defense strategies to your specific situation can help prevent the consequences of a RO violation.
Find a Restraining Order Attorney Near Me
The majority of those served with temporary restraining orders because of domestic violence are usually confused and angered by the actions of the petitioner. This creates room for mistakes that result in a violation of the terms of a restraining order leading to further consequences. Thankfully, the Los Angeles Criminal Attorney is here to provide guidance when you are served with a TRO or when you violate its terms. Contact us today at 424-333-0943 for a zero-obligation consultation.