If you have been served with a temporary restraining order (TRO), you must act fast to prevent it turning into a permanent restraining order. If the TRO becomes permanent, you risk losing your right to choose where you can live, how much time you spend with your children, and ability to own a gun.
Whether you require a restraining order or you feel a restraining order has been unfairly issued against you, contacting an experienced Los Angeles restraining order attorney can greatly influence the final outcome. As a former prosecutor for 13 years, Mr. Rodriguez handled hundreds of protective orders and knows how to protect you. Call The Rodriguez Law Group for a free consultation.
Different Types of Restraining Orders
There are four basic types of restraining order under California law which include:
- A civil harassment restraining order is typically filed against neighbors, co-workers, roommates or members of your extended family.
- A domestic violence restraining order is meant to protect someone from abuse or threats of abuse from a spouse, boyfriend or girlfriend, co-habitant, domestic partner or former spouse.
- An employer wishing to protect his or her employee(s) from violence or the threat of violence files a workplace restraining order.
- A restraining order filed by a person who is 65 or older (or by a person between the ages of 18 and 64 who has a mental or physical disability) and is a victim of deprivation or neglect is known as an elder or dependent adult restraining order.
Three Levels of Restraining Order
There are different levels of protection that can be sought by obtaining a restraining order.
- Emergency Protective Order: If a person is in the process of obtaining a permanent restraining order but needs protection in the interim, an emergency protective order may be issued. In some instances a police officer who responds to a domestic violence call may request an emergency protective order on behalf of the alleged victim. The emergency restraining order is only good for seven days until which time it may or may not be replaced with a permanent restraining order.
- Temporary Restraining Order (TRO): The prosecution in a case of domestic violence can ask for a temporary restraining order, which remains in place until the case is concluded. A temporary restraining order is meant to provide protection to the alleged victim until a hearing asking for a permanent restraining order is held, or until the case is over.
- Permanent Restraining Order: Finally, a permanent restraining order can be issued, and may last for up to five years. A judge weighs all the evidence presented for and against the issue of a restraining order before making a decision on the issue.
How a Restraining Order is Served
If a court grants a temporary restraining order, the person who is named in the order must be “served,” so he or she is aware of the restrictions in place.
The date and time of the hearing will be contained in the paperwork as well as the petitioner’s reasons for filing the restraining order. The person served with the restraining order (the respondent), is generally given between 10 and 20 days to respond to the allegations.
The paperwork cannot be mailed to the respondent, rather must be served either by a process server or by law enforcement.
What Does it Mean to Violate a Restraining Order?
Suppose you have been served with a restraining order, and then charged with violating that order by failing to comply with the terms and conditions. In order to convict you of the crime of violating your restraining order, the Los Angeles prosecutor must prove the following elements under California Penal Code § 273.6:
- The restraining order was properly issued by a judge;
- You were aware of the restraining order and understood the terms and conditions of the restraining order;
- You were able to follow the order, i.e., the restraining order was written in a reasonable way, avoiding unjust or prejudicial restrictions on your liberties, and
- You intentionally and willfully violated the restraining order.
If the violation was truly an accident, you cannot be convicted of violated the restraining order under California law.
The circumstances of the case, as well as whether the person the restraining order is against has any type of prior criminal history will be taken into account by the prosecutor when charging the offense. If the alleged victim was injured or if the defendant has a prior restraining order violation, the offense is more likely to be charged as a felony.
Potential Penalties for Violating a Restraining Order
If this is your first charge of violating a restraining order, your attorney may be able to secure supervised probation for you rather than jail time, however during this probation you cannot violate any other California law.
Depending on the circumstances surrounding your charges, you could also be required to:
- Attend mandatory counseling,
- Pay restitution to the victim, or
- Make payments to a battered women’s shelter
Should you violate any terms of your probation, you could be sentenced to the maximum jail time allowable under California law.
When determining your sentence, the court will consider whether you have either completed or made significant progress in court-ordered counseling sessions as well as whether you are likely to violate the restraining order again in the future. The court must always consider the alleged victim’s safety when determining sentencing.
Violating a restraining order can potentially result in jail time, although the crime is considered a “wobbler,” meaning it can be charged as a felony or a misdemeanor.
If your alleged violation of the restraining order is charged as a misdemeanor, you could end up spending up to a year behind bars and paying a fine as high as $1,000 if you are convicted. If the alleged victim in your case suffered physical injury, and you are convicted, you will spend a minimum of thirty days in jail, and pay a maximum fine of $2,000.
Should this be your second violation of the restraining order within twelve months, you could either be charged with a felony or a misdemeanor.
If charged with a misdemeanor, you could potentially spend up to six months in jail, while a felony conviction could result in as much as three years of jail time and probation.
Loss of Gun Rights
Further, if you have a restraining order against you, you may not own a firearm, and will be required to surrender any firearms you currently own to law enforcement, or immediately sell them to a gun dealer licensed in the state of California.
Should you ignore the firearm restrictions while you have a restraining order against you, you could face additional charges which carry as much as a three year state prison sentence and fines as high as $1,000.
Potential Defenses to Violation of a Restraining Order
Depending on the circumstances surrounding your alleged violation of a restraining order, your criminal defense attorney could use one of the following defenses:
- You did not intend to violate the restraining order, or it was violated accidentally. Perhaps you were ordered not to go within a specific distance of the alleged victim, yet you inadvertently showed up in the same restaurant, store, or other public place. In this case, you lacked the intent to violate the restraining order, and the violation was accidental.
- You were unaware there was a restraining order issued against you, therefore you could not have intentionally violated the order. This defense will only be successful if you were not served with the restraining order, or it was accidentally served to the wrong person.
- You are physically unable to comply with the restraining order. Suppose the order prohibits you from driving on the street where the alleged victim resides, yet in order to get to work there is no other route you can take. In this instance, you are unable to comply with the California restraining order and so did not willfully violate the order.
- The alleged victim falsely accused you of violating the restraining order. In some instances, particularly during a contentious custody dispute or divorce, the alleged victim may, out of revenge, falsely claim you violated the restraining order. While having an experienced Los Angeles criminal defense attorney by your side is important any time there is a restraining order issued, if you are falsely accused of violating the order, it is especially important to have an attorney fighting zealously to clear your name and help you avoid the serious penalties associated with the alleged violation.
- Finally, if the restraining order was not issued properly or was not issued legally, you are not bound by the terms, therefore cannot be convicted of violating those terms. Perhaps the court that issued the restraining order lacked jurisdiction, or the facts on which the restraining order was issued were untrue or misleading.
Other Issues Associated With a Los Angeles Restraining Order
You may wonder what will happen if the alleged victim contacts you. If this occurs, you should make every effort to not speak to the alleged victim, and leave immediately to avoid being charged with a violation of the order.
Perhaps you believe the restraining order is simply untrue, therefore invalid, so you decide to ignore it. No matter how untrue the allegations against you, absolutely do not ignore it.
Start Your Free Consultation
Speak to a Los Angeles criminal defense attorney immediately in order to understand your options and avoid being charged with violating a restraining order.
You may have other questions associated with the restraining order against you, or you may want to file a restraining order against another person. Whatever your situation, contact The Rodriguez Law Group.