If you are reading this article, you may be wondering what restraining orders are. Or, you may be wondering how to challenge one.
This article will cover all you need to know about restraining orders. We will explain what exactly they are, highlight their different types, and discuss how long they can last. We will also explain the consequences of violating restraining orders.
Moreover, we will explain how you can challenge restraining orders in Pasadena. If, after reading this article, you will still have more questions about restraining orders, we invite you to contact us at Michele Ferroni Pasadena Criminal Attorney Law Firm for a free consultation.
What are Restraining Orders?
As the term suggests, restraining orders are orders issued by a court that require an individual to stay away from another person or certain locations. Restraining orders may also be referred to as ‘protective orders.’
The person the restraining order is awarded in favor of is legally referred to as the ‘protected person.’ On the other hand, the person to whom the order applies is legally referred to as the ‘restrained person.’
The primary purpose of a restraining order is to protect someone who has been or is at risk of being a victim of harassment, threats, violence, stalking, or any other form of harm from the restrained person. The terms of this order can vary depending on the situation.
Some examples of common terms of restraining orders include:
- Orders regarding personal conduct — These orders stop the restrained person from doing certain things, such as calling or texting the protected person, threatening or harassing the protected person, stalking the protected person, assaulting the protected person, or destroying property belonging to the protected person.
- Stay-away orders — Just as the term suggests, these orders ensure the restrained individual is kept away from the protected individual and, depending on the circumstances, their children, workplace, or home.
- Residence exclusion orders — A restraining order that contains these terms will make the restrained individual change his or her residence.
Restraining orders can be issued on a temporary or permanent basis, depending on the circumstances of the case. Violating these orders can result in legal consequences, such as arrest and prosecution.
Types of Restraining Orders
Four types of restraining orders can be issued in California, depending on the specific circumstances of your case. These types include the following:
- Domestic Violence Restraining Order.
- Civil Harassment Restraining Order.
- Workplace Violence Restraining Order.
- Dependent Adult or Elder Abuse Restraining Order.
A domestic violence restraining order is issued in cases of domestic violence or abuse. It orders the abuser to stay away from the victim and can include other provisions, such as ordering the abuser to move out of a shared residence.
To get a domestic violence restraining order, the protected person must demonstrate the following:
- The restrained person abused you.
- You and the restrained person are in a close relationship.
Here, the term ‘close relationship’ means that the protected individual and the restrained individual:
- Are married.
- Are family members.
- Are divorced.
- Live together.
- Are separated.
- Are domestic partners.
- Used to date or are dating.
On the other hand, the court will issue a civil harassment restraining order if the restrained individual has no close relationship with the protected individual. To be granted a civil harassment restraining order, the protected person will have to demonstrate that the restrained person is harassing, stalking, abusing, or threatening him or her.
A workplace violence restraining order can only be requested by employers who would wish to protect their employees from credible threats of violence, abuse, or immediate danger. Note that it is only employers who can take out a workplace violence restraining order.
Employees cannot get workplace violence restraining orders. Instead, they can opt for the following restraining orders if they would like to protect themselves at work from a colleague:
- Civil Harassment Restraining Order.
- Domestic Violence Restraining Order (if they have a close relationship with the colleague).
A person can obtain a dependent adult or elder abuse restraining order against the caregiver of the dependent adult or elder. To get this restraining order, you must meet the following conditions:
- If the protected person is an elder, he or she must be at least 65 years old.
- If the protected person is a dependent adult, he or she must be between 18 - 64 years old and have certain physical or mental disabilities.
- The dependent adult or elder should be a victim of neglect, deprivation, abuse, or physical injury from the caregiver.
How Long Do Restraining Orders Last?
As earlier stated, a restraining order may be permanent or temporary. However, the court cannot issue a restraining order for life.
The maximum timeframe for a restraining order to last is five years from when the order is issued. The protected person can apply for a renewal of the restraining order when the five years lapse.
When the protected person files the paperwork for a restraining order at the courthouse, the court will issue the order temporarily before verifying the truth of his or her allegations. This order is referred to as a temporary restraining order (TRO).
The primary purpose of a TRO is to protect the protected person from the restrained person until the court grants him or her a permanent order. Often, it is issued once the protected person has filed his or her paperwork, and the court does not give a chance to the restrained person to challenge the order. TROs can last for a couple of days.
Moreover, the California Law Enforcement Department can issue the protected person an emergency protective order (EPO). Typically, it is the police and law enforcement that issue EPOs, but after obtaining court approval.
EPOs are usually issued in domestic violence cases, where law enforcement and police believe that the victim of domestic violence needs to be protected immediately from his or her abuser. EPOs last for only five business days or seven calendar days.
What are the Consequences of Violating a Restraining Order?
According to Penal Code 273.6, violating a restraining order is a criminal offense. In any California criminal lawsuit, there are certain elements that the prosecutor must prove for the defendant to be convicted.
The prosecutor must prove each of these elements to the standard of beyond reasonable doubt. The term ‘beyond reasonable doubt’ refers to the level of certainty that the judge or jury must have to find a defendant guilty of a crime.
The standard of beyond reasonable doubt means the evidence presented must be so strong and convincing that any reasonable person would not have any reasonable doubt that the defendant is guilty. It does not mean there can be no doubt at all, but rather that any doubts must not be reasonable based on the evidence presented.
In other words, this standard requires the evidence to be conclusive and leaves no room for any other logical explanation other than that the accused person committed the crime. If there is any doubt that is reasonable, the defendant should be acquitted.
Therefore, in a criminal lawsuit for violation of restraining orders, the prosecutor must prove to the standard of beyond reasonable doubt each of the following elements:
- The court issued the restraining order.
- The defendant knew about it.
- The defendant had the ability to obey the restraining order.
- The defendant willfully violated the order.
Below, we discuss each of these elements briefly:
The Court issued the Restraining Order
This element is pretty easy for the prosecutor to prove. All the prosecutor needs to do is refer to the court records.
The court records will clearly show when the restraining order was issued and the judge who signed it. They will also show the name of the protected person.
The Defendant Knew About It
The prosecutor must prove that the defendant knew about the restraining order. This can be pretty easy for him or her to do so, especially in instances of permanent restraining orders, which are always issued at the courthouse in the presence of the restrained person.
In such instances, all the prosecutor needs to do is refer to the court records. However, in cases of TROs and EPOs, the prosecutor must demonstrate that the defendant actually received the order and was given an opportunity to read it.
As the defendant, you will be acquitted if you provide evidence showing that you never knew about the order. Your defense lawyer can assist you in doing this.
The Defendant had the Ability to Obey the Restraining Order
The prosecutor must prove that you had the ability to obey the order. You will be acquitted if you prove that you did not have the ability to obey the order.
For instance, if one of the conditions of the order required you to change your residence, you can tell the court that you did not have sufficient money to get or rent a new apartment. You will be acquitted, provided you can explain your inability to obey the restraining order.
The Defendant Willfully Violated the Restraining Order
To be convicted, you must have violated the restraining order willfully. Here, willfully means ‘willingly’ or ‘on purpose.’
Let’s say the restraining order prohibited the defendant from any form of physical contact with the protected individual. In such a situation, the court will not hold the defendant to have willfully violated the order if he or she accidentally bumps into the protected person while walking along the street.
What Happens if you Commit a Criminal Offense while Violating Restraining Orders?
Remember, violating a restraining order in California is deemed a criminal offense. You may get arrested and find yourself facing a criminal lawsuit.
As the restrained person, you may face additional charges if you commit a criminal offense while violating a restraining order. In the long run, you will be punished for violating the restraining order and committing the criminal offense.
What are the Legal Defenses for Violating a Restraining Order?
Violating a restraining order is a serious offense, and the penalties can be severe. However, some legal defenses can be used to challenge a charge of violating a restraining order, such as the following:
- The order was not issued lawfully.
- You did not know about the restraining order.
- You did not violate the order willfully.
Here is a brief discussion of each of these defenses:
The Order was not Issued Lawfully
Remember, one of the elements that the prosecutor must prove for the defendant to be convicted is that the court issued a restraining order. This element is pretty easy for the prosecutor to prove. All he or she needs to do is to refer to the court records.
However, you will not be convicted if the court issued the order without a lawful basis. For example, you can argue that the protected person accused you falsely. Or, you can argue that the restraining order violates your constitutional rights, such as the freedom of speech or the right to due process.
You did not know about the Restraining Order
Recall that the prosecutor must prove that the defendant knew about the order. You will be acquitted if you provide evidence showing you did not know about the restraining order.
You can also assert that you never understood the terms and conditions of the restraining order. Your defense attorney can help you do this.
You did not Violate the Restraining Order Willfully
Remember, for the defendant to be convicted, the prosecutor must prove that he or she violated the restraining order willfully. This means that you can be acquitted if you accidentally violated the order.
Certain situations can also cause you to violate the restraining order. For instance, the protected individual may reach out to you. Or, you may have had to contact the protected person to protect him or her from a perceived danger.
What Punishments will you Receive upon being Convicted for Violating Restraining Orders?
In most cases, violating a restraining order is charged as a misdemeanor. Upon conviction, you may receive a county jail term not exceeding one year or be ordered to pay a fine not exceeding $1,000.
However, this criminal offense is categorized as a wobbler. This means that the California Prosecution Department can charge it as either a felony or a misdemeanor. You will most likely be charged with felony violating a restraining order if:
- You have a prior conviction for violating a restraining order.
- You used violence while violating the restraining order.
If convicted of felony violating a restraining order, you may receive a state prison sentence of a maximum of three years or be ordered to pay a fine not exceeding $10,000.
How do Protected Persons Get Restraining Orders?
For the protected person to get a restraining order, he or she must visit the courthouse and ask for the relevant forms. The protected person is required to fill in this paperwork and then file it at the courthouse.
While completing the paperwork, the protected person must describe why he or she needs the restraining order. The clerk at the courthouse may also require him or her to pay a filing fee.
After the protected person has filed the forms, the judge will review them and examine his or her allegations. Then, he or she will decide whether to issue a TRO. Remember, TROs are temporary and last only for a few days. Also, remember that the judge does not verify the allegations of the protected person before issuing a TRO.
Then, the court will set a hearing date for the permanent order. This date will be officially communicated to you as the restrained person.
During the hearing, the protected person must present evidence of why he or she needs the order. He or she can rely on the following as evidence:
- Threatening or angry voicemails, emails, or text messages.
- Eyewitnesses who saw or heard the restrained person being violent.
- Police reports made describing the violence of the restrained person.
- Photographs of any injuries or wounds inflicted by the restrained person.
- Medical reports showing the pain and suffering of the protected person.
The court will issue a permanent restraining order once satisfied with the evidence the protected person has adduced. As earlier explained, this order will last for five years. Note that you can challenge the restraining order during the hearing. Your attorney can help you do this.
How can you Challenge a Restraining Order?
Remember, the court will convene a hearing date after issuing a TRO. It is during this hearing that you can challenge the restraining order. Hiring an attorney to help you devise a good strategy to challenge the restraining order would be best.
Your lawyer can assist you in challenging the restraining order. He or she can explain to the court why the order is unnecessary. He or she can also demonstrate that the allegations of the protected person are false. Moreover, your lawyer can call witnesses and adduce evidence to challenge the order.
If the judge agrees with your attorney, the TRO will cease to hold effect. Also, the judge will not issue a permanent restraining order.
Note that you can always appeal to a higher court if the judge still issues a restraining order in favor of the protected person. The higher court will vacate the restraining order if your appeal is successful.
Can a Restrained Person Possess a Firearm?
A restraining order may prohibit the restrained person from owning or possessing a firearm. It may also prohibit him or her from buying a gun.
If the restrained person goes ahead to buy, possess, or own a gun, he or she may face criminal charges under California Penal Code 29825. Note that you can still be convicted even if you did not use the gun.
This offense is a wobbler, and the California Prosecution Department can charge it as either a felony or a misdemeanor. If you are convicted of this offense as a misdemeanor, you may face a county jail term of up to one year as punishment. As a felony, it attracts a state prison term of up to three years upon conviction.
Are there Immigration Consequences for Violating a Restraining Order?
You will not face any negative immigration consequences if you are convicted of violating a restraining order. In California, being convicted of certain criminal offenses can result in negative immigration consequences for non-citizens.
For example, they may get deported or become marked as ‘inadmissible.’ However, violating a restraining order is not among these criminal offenses.
Can a Restraining Order Show Up on a Background Check?
Restraining orders do not show up on background checks. This is primarily because they are classified as civil matters.
However, if you violate a restraining order and become convicted, it will appear in your background check. This is because violating a restraining order is deemed a criminal offense.
Can the Protected Person be Arrested for Violating a Restraining Order?
A protected person cannot be arrested for violating a restraining order. It is only the restrained persons who face legal consequences upon violation of the restraining order.
Nevertheless, as the protected person, it would be best not to contact or reach out to the restrained person in violation of the terms and conditions of the restraining order. This is because the restrained person can keep your attempts to reach out as evidence.
In the future, the restrained person can use this evidence to attempt to lift the order. Or, he or she can use this evidence as a defense strategy when arrested for violating the restraining order.
Find a Pasadena Restraining Order Attorney Near Me
Contact us at Michele Ferroni Pasadena Criminal Attorney Law Firm if you need any help regarding restraining orders. We can help you challenge the issuance of a restraining order at the courthouse to protect your interests.
Together, we can devise a strategy to convince the judge not to issue the restraining order in favor of the protected person. Our team of experienced criminal lawyers is dedicated to helping you get justice. Call us today at 626-628-0564 for a free consultation.