Prior actions may warrant a person to get a restraining order against you. The main reason for obtaining the restraining order arises from previous cases of domestic violence. They range from child abuse, battery and causing injury to your spouse. When the affected victim, who is your partner or someone with whom you share an intimate relationship reports the case of domestic violence to the police, they initiate the process of obtaining the restraining order.
A violation of this order can bring severe results to the offender. It is typically issued by the sitting magistrate or judge, who stipulates specific guidelines and regulations relating to contact. In some cases, the restraining order is issued to an offender in ex-parte hearings. The term simply means that the receptor of the law is not usually present in court to raise a defense or propose any regulations that he or she may see fit.
There are many reasons why you may find yourself facing violation charges. Mostly, it is not your fault if such a violation occurs. Events that make you come into contact with the person who placed the order against can be unforeseen in any case. We at The Los Angeles Criminal Defense Attorney have handled multiple cases dealing with criminal defense. We take our jobs seriously and purpose to offer the best legal advice and protection we can give to our clients, including those affected by charges of violating restraining orders.
Types of Restraining Orders
Different aggrieved persons usually request for varying restraining orders, with each of them formulated with different guidelines and prohibiting rules that the receiving person must observe. The restraining orders are generally divided into two general categories. They are:
- Criminal restraining orders
- Civil restraining orders
They are also substantively divided into peaceful and protective restraining orders. These two different classifications are interrelated in that, criminal orders are mostly protective. The reason is that they are issued to offenders who have engaged in previous abusive behavior that often involves physical violence.
Conversely, civil restraining orders tend to fall on the peaceful spectrum of restraint. Courts issue them to offenders who do not necessarily have intimate relationships with the aggrieved applicants, nor do the offenders engage in physical abuse. Nevertheless, they may have caused a nuisance to the claimants, including trespass to land. The area of law of trespass to property includes offending acts like creating commotion in apartment complexes, hosting parties with undue regard to the neighbors’ right to peaceful premises, and many other wrongful actions.
The following are the specific types of restraining orders. They may fall under any of the broad classifications discussed above.
1. Domestic Violence Restraining Orders
They are the most commonly issued restraining orders because of the numerous recorded cases of domestic abuse. Receptors of the law are often persons who are dominantly abusive in an intimate relationship. They could be spouses, fiancés or boyfriends, and girlfriends who live together. When your partner issues such a restraining order against you, there are several prohibiting rules that you must follow. Failing to abide by the rules may cause more harm than good.
The rules in domestic violence restraining orders are very particular and even draw a specific and measured numerical distance within which an offender should not be around the claimant. For example, you may be prohibited from being within a specified mile radius of the applicant's house or physical body. Although the rules are not strictly enforceable, a defendant who is close to the complaint will give him or her a reason to raise a violation claim against you.
If you have children together with the claimant who orders the restraint of contact against you, the judge will work out reasonable ways to ensure you still get visitation rights. For example, you may have specific hours available to see the children. An extension of the stipulated time could also land you in trouble and bring about violation charges.
2. Elder Abuse Restraining Orders
These kinds of orders against the offender are commonly protective because the affected older person may be unable to evade any danger posed by the person in restraint. Eligibility to access such an order is that the older adult must be at least 65 years. Any person above this age is qualified to apply for the restraining order. There are many reported cases of older people being physically coerced by members of the family to provide vital personal information that may lead to fortunes in estate and lifetime savings. Therefore, the order is valid because the offending person is likely to be in constant contact with the complaint.
Besides elderly persons, the restraining orders can protect persons living with disabilities, especially when they do not have permanent caregivers to protect them from any probable danger.
3. Civil Harassment Restraining Orders
An applicant seeking such an order against you may require that your interactions become more peaceful and tolerant. They are issued to persons with whom the claimant may have no personal relationship. A good example is where neighbors who share amenities conflict. The offending party will receive a restraining order that may order him or her to comply with the general rules regulating interactions, or face possible eviction.
Additionally, an offender may receive a civil harassment restraining order for committing the tort of defamation or libel. These civil wrongs involve publishing personal information that may embarrass and defame the subject of the articles or posters. Most offenders only source this information if they have proximity to the affected person. Therefore, the defamed person will most likely apply for the restraining order.
Thus, violating civil harassment brings forth many different outcomes, some of which may affect your personal life as well as work life.
4. Workplace Restraining Order
Some employers are overly dominating over their employees, and may easily cross workplace boundaries-workplace restraining order purposes in protecting the employee from the offending senior at work. The abuse may arise from sexual harassment, verbal harassment, as well as discrimination based on gender, race, and other outstanding factors. The restraining order may require the employer to hold professional conversations only with the affected employee. He or she is also advised against discriminating against the claimant because of the restraining order. Therefore, regular interactions should proceed without prejudice and spite.
Although the provisions of the order serve to maintain peace in the workplace, it is human nature to hold an employee who holds a restraining order against you in a different light. Thus, you may unconsciously treat or speak to them differently, without necessarily showing hate and spite. Regardless of these unconscious actions, the claimant could take such a chance to raise a claim of the violation. He or she may raise the complaint even before confronting you about the problem.
Different Time-Based Types of Restraining Orders
On top of classifying restraining orders into specific categories, there are different types of rules that have varying time effects on the offender. They are:
Emergency Restraining Orders
They are issued to victims of sudden threats of violence or harm. Often, it is the officer who responds to a domestic abuse alarm who organizes for the emergency restraining order to be formulated against the offender in question. After rescuing victims from the abuser, the officer contacts operators who can reach the office of the sitting judge and request for the initiation of the process. Due to the prompt response required, emergency restraining orders are commonly issued ex-parte, and you, as the offender, will not be involved in the hearing to release it. An emergency restraining order serves victims temporarily until the abuser is arraigned in court.
When you are served with an emergency restraining order, any attempts to physically contact or see the victim is treated seriously, as the problem of abuse is still volatile. A violation of the emergency order often depicts you as a persistent offender and may raise the question of doubtless intent on your part. Therefore, we advise you against trying to speak to the claimant about it, even if you have an intimate relationship. Instead, you can reach your criminal defense attorney and find out how you can contest the issuance of such an order.
Temporary Restraining Orders
They usually hold restraining power against you for about two to three weeks. The orders are interim and prevent you from accessing the claimant’s location until he/she finds a safe environment where you could find it hard to access. Additionally, the claimant can extend temporary restraining orders if they have not yet sought the desired remedies to hold you off from seeing them.
Most aggrieved parties with children seek temporary restraining orders against the offenders until they can work out cases involving custody of the children. If you are in such a position, you may be unable to see or visit your children for a while. The prohibition lasts until such matters are settled because of the restraining order. Should you violate a temporary restraining order, it could ruin your chances of ever seeking redress. Consequently, the claimant could apply for an enhancement of the order, turning it to permanent restraining law.
Permanent Restraining Orders
These kinds of orders affect repeat offenders. The most rampant offenders who receive the orders are domestic abusers. Additionally, they may also have committed serious offenses like murder or battery and assault. The attacks could directly affect the claimant, who now seeks the restraining order. For a judge to issue a permanent restraining order, he or she must listen to both parties in a hearing.
The prosecution should introduce any evidence against you at this stage to prove your liability in violating a restraining order. The prosecutor may file an affidavit showing the previous charge sheets issued against you or show your prior criminal record as evidence against you. Despite all the evidence, your criminal defense lawyer works to disprove the evidence and raise legitimate justification for violating the order in your defense.
California Law on Violating a Restraining Order
Statutory provisions are available for a reference regarding any unlawful violations. Section 273.6 of the California Penal Code gives the regulations that prohibit a person from violating the issued restraining order. It states that it is illegal to knowingly and intentionally violate a restraining order. Further, the law provides for the penalties issued against violators. They are all dependent on the circumstances leading to a violation.
Penalties For Violating a Restraining Order
The offense of violating a restraining order can be a wobbler crime. The term wobbler means that it can be entered as a misdemeanor or a felony. The Penal Code states the specific charges for issuance to defendants found guilty of the crime.
When charged with a misdemeanor, the defendant faces a $1,000 fine or a jail sentence for one year in prison, or both. Moreover, if the violated person suffered any injury resulting from the defendant’s violations, he or she will face a mandatory jail sentence for a minimum of 30 days.
When charged as a felony, the accused person may face a jail sentence that lasts up to 7 years. Also, the judge may charge the defendant with a fine penalty, amounting up to $10,000. For a charge to alleviate a felony, the accused person should hold a previous criminal record and have committed a prior violation within seven years.
What Does the Prosecution Need to Prove?
On top of making the violation of a restraining illegal, section 273.6 of the California Penal Code indicates the critical factors that the prosecutor needs to prove for a rightful conviction to ensue. Typically, in a criminal case, the judge cannot find you guilty of any charge until the prosecution proves that you had the two vital elements of committing a crime:
- Actus Reus
- Mens Rea
These are Latin terms that are commonly applied in criminal law. They entail the actual commission of the crime, and the criminal intent required. Without the two elements, you cannot be found guilty of any criminal offense, as the prosecutor will not have proven your guilt beyond a reasonable doubt. The due process of law aims to create fair and just conviction processes. Therefore, any conviction without proper proof results in the cruel dispensation of justice.
Specific to the crime of violating a restraining order, the prosecution needs to prove that:
1. The Claimant Served You With a Valid Restraining Order
Subject to stipulated guidelines, there are essential steps that are followed to produce a valid restraining order against the offender. Different steps are supported, including conducting fair hearings to determine whether to issue the restraining order against the offender or not. Additionally, officers working in various departments, especially in the domestic violence unit, should be informed of the pending formulation of the restraining order. Therefore, when due process is not followed, a restraining order is invalid and may hold no power against the defendant.
Thus, a prosecutor must show the essential stamps that verify the restraining order documents. Also, he or she must produce the relevant affidavit and other appropriate documentation in court to prove that the judge rightfully issued the restraining order after a fair hearing, except for emergency restraining orders. However, even though the emergency orders are issued ex-parte, they only become valid if the defendant is rightfully notified about them. Therefore, the prosecutor must show any letters or notices served to the defendant to inform him or her of the emergency order.
2. The Defendant Knew of The Restraining Order
This element relates to the intent of committing the crime of violation. You cannot be held guilty of absconding restraining orders if the prosecutor can not prove that you knew of its existence. In this case, he or she must produce any documentation to show that you received all notices and the actual restraining order. The most crucial evidence to present in court is your signature, either electronic or physical. Additionally, the prosecutor must indicate accurate dates of reception of the restraining order documents. Besides, he or she should show that you were the actual person who physically received them and not an agent. The prosecutor can prove this by producing photographic evidence to corroborate the signatures and fingerprints issued in court as evidence.
Your prior behavior can also serve as the prosecutor’s evidence of your knowledge of a restraining order. If you have ever held back from making physical contact or told the claimant that you are aware of the law, these actions may work against you. Also, the prosecutor may prove that you may have stalked the claimant before, proving that you are aware of the restricted access you have to the claimant. Despite the numerous allegations, The Los Angeles Criminal Defense Attorney lawyer handling your case will rebut them and raise legal defenses on your behalf.
3. You Knowingly Violated the Restraining Order
The requisite Mens Rea to convict you for violating a restraining order is intentionally doing it. Having proven that you were aware of the existence of such an order, the prosecutor proceeds to demonstrate how you violated it. Here, he or she needs to prove the willful intention to act in violation of the restraining rules. In most scenarios, the prosecution derives the evidence from circumstances and actions before the actual act resulting in a breach.
As an accused person, your prior words, actions, and choices may all work against you when used by the prosecution as evidence. Regardless of whether you went to see the claimant in good faith or not, the simple action of violating restrictive distance guidelines can lead to a conviction. The prosecutor should also show you had malice in acting the way you did. Malicious intention ranges from causing a nuisance to physically attacking the claimant. Again, such evidence to show malice is derived from external factors like possession of a weapon. If the prosecutor can correctly link the weapon to your malicious intent to violate the claimant’s restraining order against you, his/ her case could take off and prevail.
You do not have to worry about the evidence that piles up against you during the trial, as your criminal defense lawyer can use them to your advantage and outwit the prosecutor. Most of the evidence is usually incomplete when raised by the prosecution’s side. Therefore, your lawyer can raise valid defenses to create reasonable doubt regarding the conviction.
Possible Defenses for the Crime of Violating a Restraining Order
As a defendant, you deserve to access proper defenses to secure your probable acquittal. A diligent defense lawyer will come up with these defenses:
Unawareness of the Existence of a Restraining Order
This defense will serve a defendant who was genuinely unaware of the existence of a restraining order against him or her. Simple logic dictates that you cannot violate what you do not know about. Therefore, the defense attorney should introduce evidence to show that you were not served with relevant documents to notify you of any orders.
Additionally, he or she should demonstrate that even if you were served with such documents, service was late and you had already made physical contact with the claimant. Similar to the prosecution’s evidential backing, you should avail of any helpful documents with accurate dates to prove the late service of the restraining order.
Sometimes, the restraining order could be served through the mail. It is not uncommon for the claimant’s agent to write an old address if you happen to relocate, especially where the parties are an estranged couple that does not often keep tabs on each other. You could issue the new address as evidence to show that the restraining order was not officially served to your rightful premises.
Absence of Intent
Besides, your lawyer may examine you and derive additional information to prove your lack of intent. For example, common events may draw you and the claimant in common physical locations that both of you have the right to be in. For example, you may coincidentally meet in a restaurant, or even at a mutual friend’s wedding party. The claimant has no right to instigate any charges against you, provided that you keep the required distance.
Despite the validity of the defense, some claimants work maliciously and intend to land you in trouble for no apparent reason. Therefore, you should ensure that you follow the restraining order's guidelines. Also refuse any contact if approached by any person mentioned as a prohibited party in the orders.
A Set Up By The Claimant
As mentioned, a claimant may raise a charge of violation against you even if you lacked intent. Due to malicious intent, he or she may set you up by approaching you and finding excuses to speak to you. For example, the claimant may ask you to consider reconciliation and may even lead you on. If you are not keen to understand his or her intentions, they may wait for a compromising situation to arise, where you may look as if you are in violation. Eventually, they may call the police on you and give them a false recollection of events leading to your presence in restricted premises.
Due to the pre-existing prejudice against you, the officer may believe him/her over you and end up arresting you for violation. However, your lawyer can produce evidence, including phone call logs and texts that were initiated by the claimant to disprove your guilt. Additionally, we recommend that you remain vigilant at all times and record crucial conversations if necessary, as it may become useful evidence in your favor when charged with the offense.
Invalid Restraining Orders
As discussed above, a restraining order has no power of enforcement if it is invalid. Your attorney can raise important procedures that were missed when formulating the order. Thus, the charges and penalties will significantly reduce and place you in a better position than before the introduction of such evidence.
Contact a Criminal Attorney Near Me
Continuing with life after restriction by a restraining order can make it more rigid and confusing. When facing violation charges, you may be wrongfully undergoing trial for a crime you did not commit. At The Los Angeles Criminal Defense Attorney, we understand the complexity in the laws related to a violation of restraining order. We work with you to offer brilliant legal services that provide solutions to any criminal charges, including violating restraining orders. Contact us today at 310-564-2605 and begin your litigation process with us.