San Diego Restraining Order Defense

Having a restraining order on your name can have a significant impact on your life. It has the power to take away everything that matters and force you to stay away from important people in your life. When a restraining order is sought against you, it could severely affect your rights. For instance, you may have to surrender all weapons, you may not have contact with your wife or children, you may be barred from visiting certain areas, and you might have to relocate from your permanent residence.

Restraining orders are fairly common but can be difficult to deal with once issued. More often than not, courts will side with the victim so as to prevent further harassment, stalking, violence, and other forms of abuse. This can be damaging to individuals who are victims of false or exaggerated accusations. What’s more, you can be charged with a crime if you’re accused of violating a protective order once it’s issued. If a restraining order has been filed against you, it’s in your best interest to quickly retain legal counsel.

What is a Restraining Order in California?

A restraining order, also known as a protective order, is a court-issued order intended to protect an individual from physical injury or pain as well as the threat of pain, abuse, and injury. This order can be issued against a member of the household, a family member, or against any person who threatens the safety of another.

Restraining orders are primarily used to prevent violence, stalking, harassment, and other kinds of abuse in both criminal and civil cases. They’re typically issued based on the sworn testimony of the petitioner. When used in criminal cases, restraining orders prohibit movement or behavior in order to prevent one party from causing harm to another. In civil cases, these injunctions can be intended to prevent two or more individuals from making contact or being involved in any act that may amount to a public nuisance. For a restraining order to be valid, it must be authorized by a bench officer and then served on the targeted party. This means that a person cannot be considered to be in violation of a protective order if he or she is not aware of the order’s existence.

A common aspect of restraining orders is restrictions on the distance allowed between the involved parties. For instance, an individual may be ordered to always keep a 250 feet distance from the other. A person may also be prohibited from visiting a certain location. Another common feature involves limitations on making contact through a third, by email, text messages, phone call, party or any other means. Some penalties apply if the party being restrained breaks the conditions of the order, as stipulated under California Penal Code Section 273.6 PC. Violating a restraining order is a misdemeanor, and you can face up to 1 year in county jail and a fine of $1,000. A second conviction could be charged as a felony. The punishment is 16 months or 2 to 3 years in state prison and a fine of up to $10,000.

What is a Criminal Protective Order?

There are several ways in which California criminal law protects victims of domestic violence. Issuance of a protective order is one of these ways. A criminal protective order protects a victim of violence or abuse by restricting their contact with the abuser. If someone else portrays a violent behavior towards you, you should obtain a restraining order to keep yourself safe.

Sometimes, a defendant is not liable to allegations made by an alleged victim, for instance, false accusations for domestic violence. In such a case, the defendant needs a protective order attorney to defend them in the hearing. This is what we do at the San Diego Restraining Order Attorney; we represent both petitioners and defendants depending on their case.

A criminal protective order is an order made by a judge with the sole aim of protecting a witness or victim of a crime. The CPO will be issued for specific cases such as domestic violence. The order compels the restrained individual to stay away from the victim and sometimes cut off all communication with them. The judge will evaluate the facts of the alleged crime to determine if the protective order will be issued.

If the court believes you threaten the safety of someone else, they will serve you with a criminal protective order. To get a protective order, the prosecutor must show evidence of you hurting a person you live with, a person you are dating as well as other family members. On the other hand, if you are facing domestic violence, the court may issue an order to protect you from the defendant in your domestic violence case.

After an incident of domestic violence and issuance of the protective order, the court will be specific on actions of the abuser in that:

• The user may be asked to leave the home residence shared by the couple or family
• In most situations, the court will grant custody of the minor children to the victim of domestic violence. The abuser may be asked to pay child support and can be granted visitation. If a protective order is issued against your spouse, you should make sure the children are safe when visitation is allowed. Otherwise, you should notify the court.
• If the matter was taken to court, the person you are restricting could be made to pay for your attorney fees.
• The restrained individual can be escorted by the police away from the shared residence or place of work to avoid any contact. If you are the victim, the court may impose other protective measures they deem fit as long as you agree to them.

The following types of domestic violence can attract a Criminal Protective Order:

• Physical Abuse - This involves hitting bruising, grabbing or any other activity that causes bodily injury
• Sexual Abuse - This is forcing another person to participate in sexual acts.
• Emotional Abuse - Emotional abuse occurs from belittling, criticism as well as trying to diminish someone’s self-esteem
• Economic Abuse - This can involve making the other person entirely dependent on the abuser by withholding financial resources.
• Psychological Abuse - This results from threats and humiliation of the victim.

There are two (2) major types of criminal protective orders which can be issued in San Diego: a stay away order or a no negative contact order.

A Stay Away Order

This is the most common protective order a court can issue. A stay-away order means that one must stay away from the other person until the case is ruled and after the case if there is a conviction. This order encompasses the following type of contact:

• Do not have any physical contact with the other person.
• You should not go within one hundred (100) feet of the protected individual.
• Avoid any electronic communication, including emails, phone calls, as well as different types of social media.
• If the two individuals accidentally come in contact, the restrained person is required to leave immediately.
• Avoid third-party contact unless it’s an attorney of either party.

Violating a condition of the stay away protective order can bring forth a misdemeanor charge of a criminal protective order violation. If you want to get a stay-away protective order against someone, it is crucial to be represented by a competent criminal protective order attorney.

A No Negative Contact Order

This type of contact order gives a little more leniency to the individual who is restrained. Harmful contact is saying or doing things that affect the other party. Issuing threats and insult is also not acceptable when there is a criminal protective order. Violation of this type of order is detected if the police get contacted over a confrontation. However, no negative contact order is granted under unique circumstances.

The Protective Order Hearing

When law enforcers come to the scene of the crime, a temporary restraining order will be issued against the abuser. A court date will be set for you to appear before the judge. This allows you to explain your situation in the absence of the defendant. On return for the second hearing, both of you will be preset. The district attorney is required to prove that the restrained person made you feel unsafe, threatened, you, or hurt you. This will show that you need protection. The defendant is also allowed to tell their side of the story. At the end of the hearing, the court will determine if you deserve the final protective order.

If the defendant fails to appear for the hearing, the judge may choose to continue with the temporary protective order. If they do this, the police will be given the notice to pass to the defendant, asking them to show up for the hearing. Alternatively, they can enter the final order to grant you a full protective order. California treats domestic violence seriously; thus if the victim does not appear, the law enforcers will attempt to find you. If they do not get to you, the restraining order will get dismissed. Therefore, you will not get protected from your abuser.

After the hearing, the court will issue you with a copy of the protective order. It is important to seek clarification of the law and carry it with you all the time. This gives you a right to get protected by the police. The court will then notify the police of the existence of your protection order within twenty-four hours. The terms of this order will require them to protect you, your close family members, and the people you live with in your home. If you accidentally lose your order, you should go back to court and obtain another copy.

Violation of a Criminal Protective Order

If the defendant does not follow the protective order terms, the victim should call the police. The restrained individual will get arrested. Under California Penal Code 166(a) (4) violating a criminal protective order is a criminal offense by itself. The violation of this order is often prosecuted as a misdemeanor, felony, or contempt of the court depending on the circumstances of each case. The prosecutor is required to prove the following to convict a defendant for violation of the protective order.

• A valid criminal protective order was put in place, and the issuance of the law was done legally. The validity of the order is the main element that determines a conviction. You will not get convicted for violating an unconstitutional order. There are different reasons which could make protective order illegal. If the judge had no right to issue the order or there was no reason to seek an emergency protective order.
• The defendant was aware of the existence of the protective order issued against them. The prosecutor is expected to prove your full knowledge that the order existed To get convicted for a protective order violation. Permanent restraining orders are served orally in court if the abuser is present. If they are not present, the order will be issued in writing and delivered by a third party. However, they are not required to prove that the defendant read the order.
• The defendant violated the terms to the protective order intentionally. A person will willfully violate the order if their actions are intentional with the hope of gaining something or hurting the victim. However, if you had no intention to violate the order, you cannot get convicted for the offense.
• The defendant’s ability to comply with the protective order to prove they are in violation. To be legally bound by a protective order, you must have the ability to adhere to that order in that it should be reasonable.

Penalties of Violating a Criminal Protective Order

Violation of a criminal protective order is a serious matter. Under California Penal Code 273.6, a misdemeanor CPO violation carries penalties of up to one (1) year in jail and fines not exceeding one thousand ($1,000) dollars. If the alleged violation resulted in injuries or the defendant is a repeat offender, the violation is charged as a felony. A felony conviction carries up to three (3) years in jail and a fine amounting to ten thousand ($10,000) dollars. Additionally, violators of a criminal protective order will be required to attend mandatory counseling and pay for all medical costs incurred by the victim. If the defendant is a holder of a firearm, the court will confiscate it and prevent future ability to acquire a new firearm.

Defenses Against Charges for Violating a Protective Order

These defenses can be used to contest the protective order violation charges:

• Lack of knowledge regarding the protective order. If you were not aware of the protective order, then you cannot violate the terms willfully. For example, if the order was issued without a hearing, there is no way you would find out of its existence.
• You can argue that you did not commit any crime against the alleged victim; thus, the protective order was illegally issued. If the prosecutor lacks evidence to prove without a reasonable doubt that you committed the crime, the charges against you can be dropped.
• Contact was accidental. This defense is applicable if you did not intend to come in contact with the victim, and your meeting was a mere coincidence. You cannot get convicted or any unintentional actions.

Owning Guns and Other Firearms When there is a Restraining Order Against You

When the court grants a restraining order against you, you will not be allowed to possess or obtain a firearm while the protective order is still valid. If you already own a gun, the court will instruct you to sell it to a licensed dealer or turn it to the authorities until the protective order expires. Failure to obey orders can get you charged with a crime. Violating this order could result in jail time or fine, not exceeding one thousand ($1,000) dollars. The court may set another hearing to review and determine whether you complied with the order to dispose of the firearms.

Terminating a Criminal Protective Order

You can end a criminal protective order by filing a motion or orally. However, there are several factors a court will consider before granting the termination of a criminal protective order. They include:

• Whether the supervised individual accepts the responsibility for their abusive actions against the victim
• Whether the restricted person is taking appropriate measures to correct their behavior, these actions include taking drugs counseling as well as parenting counseling
• The outcome of the case and whether a conviction was made
• The progress which the defendant has made during the probation period and the opinion of the victim to the situation change
• The court will consider the living situation between the defendant and the victim before deciding to terminate the criminal protective order
• The impact termination of the criminal protective order will have on the victim

Related Restraining Orders

There are other orders of protection similar to the criminal protective order. They include:

Emergency Protective Order (EPO)

California Family Code Section 6250 gives law enforcers the right to request an emergency restraining order. The EPO is issued by law enforcement when they are called at the scene of a domestic violence incident. If the officer believes that one is in danger, they will contact the judge and request the issuance of a temporary protective order. This order takes effect immediately after publication and is valid for five (5) to seven (7) days. Only law enforcers are allowed to seek such an EPO for individuals under threat. Judges are always available for twenty-four (24) hours to issue emergency protective orders upon request.

As stipulated in the Family code section 6251 of California, the following must be established before an emergency protective order is issued:

• When there is sufficient evidence that a person is in danger of domestic violence
• A minor is in danger of abduction or abuse
• A dependent adult or an older person is not safe
• The restraining order will ensure the past domestic abuse incidents do not reoccur

Workplace Violence Restraining Order

This order is initiated by a business owner for their employee who is a victim of a violent encounter at the workplace. After the incident, a temporary restraining order will be issued by the court as the hearing is getting set. To get the full restraining order, the employer must provide clear and convincing evidence to show that the employee suffered violence. The must also show that the incident is likely to recur if nothing is done about the situation. However, only the employer is allowed to obtain the workplace violence restraining order.

Elders and Dependent Adult Restraining Order

This is the restraining order that protects individuals over the age of sixty-five (65) years residing in San Diego, CA. Adults between the age of eighteen (18) and sixty-four (64) who suffer from a mental or physical disability are also considered dependent adults. The order protects these individuals from past or ongoing abuse. The order can last up to three years. For the elders and dependent adults, abuse could be physical, mental, emotional as well as neglect and denial of proper primary care.

Civil Harassment Restraining Order

The CHRO is granted to a person who is not related to the individual they want to be restrained. To seek a CHRO against someone, you must have suffered harassment, which is defined as unlawful physical violence as well as verbal threats. If there is reasonable proof of harassment, a temporary restraining order will be issued. However, the full order will be granted after the hearing. If sufficient evidence of harassment is presented, the temporary restraining order will get converted into a complete restraining order. The validity of a civil harassment restraining order lasts for three to five (5) years.

A restraining order will prohibit the restrained person from:

• Contacting you or your household members by email, text messages, phone calls or interaction through social networking sites
• Going near you, people you live with, or your children regardless of the place
• Going near your school, work, or your children’s school
• Having a gun
• Any form of surveillance

You can obtain a Civil Harassment Protective Order against a person with whom you have no close relationship such as marriage, dating, or living together, whether you know them or not. These people include:

• A friend
• A roommate if you have never dated
• A neighbor
• Family members above two degrees removed
• Any other person that you are unrelated to

For close family members or partners, you will need a Protective Order under Domestic Violence laws.

Effects of Restraining Orders Granted Against You

Any Restraining Order against you will have implications on how you conduct yourself, including:

• After the court issues a restraining order against you, it is recorded in a statewide computer system. All law enforcement officers across the state can see the record.
• The order prohibits you from doing certain things and going to certain places
• You will not qualify to own a firearm. You must sell, turn in or store any guns that you possess within the period that the order remains in effect.
• The order may affect your immigration status
• You may be required to pay legal fees for the person seeking the order
• If you violate the order, you may pay a fine, go to jail or both.

Responding to a Restraining Order Granted Against You

If you receive a notice of a Civil Harassment Protective Order issued against you, you can file your response before the hearing date. Here are the steps to follow:

Prepare for filing

• Fill out the necessary forms. These include:
• Form CH-120: Response to Request for Civil Harassment Restraining Orders
• Form MC-025: Attachment to Judicial Council Form or Form MC-020 (Additional Page) if you require extra writing space
• Form MC-030: Declaration or Form MC-031 (Attached Declaration) for witness statements
• Fill out any forms required by your local courts. The court clerk can provide the forms, or you can get them from the court's website.
• Have the self-help services office at the court review your forms before you file to ensure that you completed them correctly.
• Make two or more copies of each form, the original remains in court; one copy is yours while the other is sent the person under protection.

File your response and serve the petitioner

The clerk at the court must retain the original, then stamp the copies ‘Filed’ and return them to you. Filing fees apply if the petitioner did not claim violence in their request, but you may get a waiver in a situation where you are unable to pay. Ask a process server, or someone aged at least 18 years to mail copies of the response to the person seeking the order. Do not serve them yourself. Ask the server to complete Form CH-250 (Proof of Service of Response by Mail) for you. File the form in court and ensure you keep one copy. If it is not possible to file the response before the hearing, have the forms at the hearing.

Prepare yourself and attend the court hearing

Have two copies of each form, including proof that you served the petitioner. Organize and have your evidence with you, including witness statements. Sometimes, witnesses present during the hearing may be permitted to talk. If speaking English is difficult for you, ask for a translator from the court or take someone with you. Practice and write down what to say in your defense.

During the hearing

Sit away from the person requesting the order. Be calm, brief, use appropriate language, and provide complete answers to all questions. Speak only when it is your turn and to the presiding judge unless you have been allowed to ask other people questions. Ask for clarification of any unclear questions.

After the hearing

The presiding judge will decide to either grant the orders in part or in full, deny the request, or postpone the case to another date. If your case is adjourned, the temporary orders are valid until the new court date. If the Restraining Order is granted, you must comply with it. You are also not allowed to possess a gun. If you have one, hand it over to the police or sell it to a licensed dealer. File proof of this to court using the Proof of Firearms Turned In, Sold or Stored (Form CH-800).

Charges of Violating a Restraining Order

If you do not adhere to the terms of a restraining order issued against you, you will face criminal charges under Penal Code 273.6 PC. The prosecutor must prove three main elements to successfully charge you for the crime of violating a restraining order, also known as contempt of court.

• The restraining order was legal. The law requires that you obey a legal restraining order, but the law does not bind you to an illegal restraining order. However, if you believe a restraining order issued against you is illegitimate, you need to consult an attorney to challenge it before you get arrested for noncompliance. Challenging the order is less complicated than defending yourself against charges of violating it.
• You were aware of the order. The prosecutor must provide convincing evidence that you were aware of the restraining order. This evidence includes proving that you had a chance to read the order, regardless of whether you read it.
• You deliberately violated the order. If you know there is a valid restraining order granted against you, but you intentionally ignore it, you are liable for violating the order. For example, if a restraining order prohibits you from contacting a former workmate, yet you send the person a gift as a way of apologizing, you are violating the order willfully.

Possible Defenses Against Charges of Violating a Restraining Order

There are several legal defenses that your attorney can assert against charges of violating your restraining order.

• Lack of knowledge: A judge cannot convict you for violating an order that you were not aware existed. This defense would be more effective if the order was issued in your absence.
• Lack of intent: You are not criminally liable for violating the restraining order if you never defied it intentionally. An example is if you accidentally meet the person under protection at a public or social function.
• False allegations: It is wise to comply with the terms of a protective order. Even if the other party contacts you or asks for a reconciliation meeting, you must obey the order. Such contact can be used to set you up and have you arrested for violating the order.

Penalties for Violating a Restraining Order

Violating Penal Code 273.6 PC for the first time is a misdemeanor punishable by a maximum fine of $1,000 or a one year or less county jail term. For a second conviction within seven years, and if it involves violence or credible threats of violence, the offense becomes a wobbler.

• If charged as a misdemeanor, you receive a maximum one-year in county jail and a maximum fine of $1,000.
• If charged as a felony, you get probation and one year or less in county jail, 16 months to two or three years in state prison, or a maximum fine of $10,000.

Dating Violence

Although most dating violence goes unreported, under California law, couples are advised to seek justice whenever they feel that their partners are abusing them. Dating Violence, which falls under domestic violence is common among many couples in California. Dating Violence involves certain patterns of behavior where one person in the relationship acts in an abusive manner towards the other partner. In dating violence, anyone can be an abuser or a victim regardless of sexual orientation or gender. Dating violence is regarded as an abusive behavior because it involves intimidation, harassment, humiliation, or isolation of one partner from his/her friends or family. People who feel abused by their intimate partner, under California law, they’re granted the right to file a lawsuit against their abusive partner so that the abuser can be restrained for their abusive behaviors towards you.

Before filing a lawsuit against your partner due to their abusive behavior, you first need to understand your state’s laws regarding the same. In California, restraining order laws are a bit different hence when you feel that your partner deserves a restraining order, you need to find an attorney with experience in domestic violence restraining orders to give you insight on the law and provide you with legal representation in court. The San Diego Restraining Order Attorney has experience in this particular part of restraining order law; therefore, you should feel confident with your dating violence issues with our experts. Our attorneys are confidential and experienced; you can be assured of receiving the best legal services along with the privacy needed to help you go through this sensitive time in your life.

What is Dating Violence?

Dating Violence is any repetitive, abusive behavior towards another partner with whom you have an intimate relationship. Dating violence involves any abusive behavior which affects the other intimate partner, whether psychologically or physically, regardless of sexual orientation or gender. Although severe injuries might be part of dating violence, the majority of dating violence cases revolves around minor physical attacks such as pushing and slapping. In California, dating violence falls under domestic violence, which is viewed as a distinct crime. Victims of abusive behaviors while dating may be charged with domestic violence (in addition to) or battery and assault depending on the severity of abuse. Domestic violence laws define “abuse” as either of the following:

• Sexual assault
• Physically hurting someone or trying to whether recklessly or intentionally
• Promise to harm or threats which make someone reasonably afraid that they might be seriously hurt
• Behaviors such as stalking, harassing, hitting, threatening or disturbance of someone’s peace

Proven Case Results

Case: Neighbor vs. Neighbor

We represented a gentleman, the Respondent, that lived in a senior living apartment complex. His neighbor alleged he bumped into her car, ran into her with a latter causing bruising and threatened her with a tool as a weapon. After evidence was presented the court did not grant the restraining order against our client and dismissed the case.

Case: College Student Roomates vs. College Student Roomate

We represented the Respondent who moved out of an apartment to only return to for a move out walk through with the landlord. The Petitioners alleged that my client and a family member harassed them as they came over for the walk through along with months of intimidation. After a full day of testimony, the judge found in favor of our client and denied the restraining order.

Case: Employer vs. Employee

We represented the employer who was threatened by a former employer. After threats of destruction of company property, evidence of actual property destroyed, we were able to establish through the use of text messages and audio recordings that an order should be granted. Former employee is restricted from coming within 100 yards of client and his business.

Case: Neighbor vs. Neighbor

We represented a homeowner, the Petitioner, who was harassed by a neighbor pointing cameras directly facing toward their home windows and backyard. After presentation of evidence through the use of personal testimony, photographs and satellite images we were successful in getting the court to grant a restraining order. The Respondent was ordered to remove the cameras and not have any personal direct or indirect contact with our client for 5 years.

Case: Neighbor vs. Neighbor

We represented a man, the Petitioner, who was having issues with his neighbor who shared one side of his property with. The case arose out of a dispute over tree branches, backyard clutter and fencing damage. The neighbor filed a restraining order in retaliation against our client. It escalated when the Respondent made derogatory slurs directly toward my client, allowed his dog to attack the front door of our client’s home and eventually was spit in his face . The conduct was recorded on home security cameras which was reviewed by the court. After testimony, the judge granted the restraining order against the neighbor and denied neighbor’s request against our client.

Case: Ex-Wife vs. Ex-Husband’s Girlfriend

We represented a woman where her husband’s ex-girlfriend file a restraining order against her for allegedly following her home and making a gesture. We were able to ascertain an admission that she was the girlfriend, which was denied before, and with the use of social media posts no intimidation occured. After testimony, the judge was able to see the Petitioner was just provoking our client and dismissed the case.

Time is of the Essence

Because of the high risk involved in cases that call for a restraining order, California Law treats these cases seriously and with the utmost sensitivity. As such, your case deserves prompt attention. There are strict filing deadlines that you, the respondent, must comply. What’s more, your attorney will need adequate time to interview you, gather evidence, and obtain declarations in order to build a strong and effective defense.

Ruyle of Law primarily defends against all forms of restraining orders as well as subsequent violations. However, on occasion, we also help individuals obtain such orders so as to protect them against harm from other individuals.