Restraining order (RO) laws primarily apply in domestic abuse or violence cases in California. The court issues these injunctions on an abusive intimate partner and prohibits them from coming within a specified distance or making any contact with the victim. When you have been accused of domestic violence, your spouse can seek protection from the court through a stay-away order.
Once issued, you have no option but to obey the orders. A violation of the RO is a severe offense with harsh consequences. The best way to avoid these adverse repercussions of breaching an RO is to find an attorney to defend you against the charges. Our attorneys at the Riverside Criminal Defense Attorney Law Firm will investigate the accusations of violating a restraining order and find testimony for fighting the charges.
Legal Definition of a Domestic Violence Restraining Order (DVRO)
Also called a protective or stay-away order, an RO is issued against the defendant to protect the victim of domestic violence. If you are the accused, the court bars you from coming within a specified distance of the victim or making any contact.
You will understand a DVRO better if we define domestic violence (DV). In California, a DV offense is defined as when an existing or ex-spouse, lover, a parent to your child, a cohabiter, or anyone related by blood or marriage does any of the following:
- Inflicts or attempts to inflict bodily harm
- Engages in sexual assault
- Makes one fear for their safety or the safety of their immediate family
- Harasses or threatens
- Disturbs peace or destroys property
When you engage in any of the above conducts, the victim will report you to the police. And because the victim needs protection before the matter is settled in court, this is when a DVRO is issued. The orders usually contain a list of instructions that you must abide by for the period provided. If you do not abstain from any of the behaviors listed, you will face criminal charges for violation of an RO.
If the basis for issuing the orders is your conduct towards the victim, the court will instruct you not to stalk or communicate with the alleged victim. For a stay-away injunction or order, the court requires that you maintain a specified distance away from the secured party. Also, when the protected individual frequents particular places like workplace, home, or their favorite eatery, the law will prohibit you from setting foot in these areas.
Not every individual is eligible to file a DVRO. The qualified candidates who can take action against you are:
- A present or former registered domestic partner
- Current or former dating partner
- The parent of your underage child
- A person you are presently living together with
- A current or former spouse
When any individual fits the above conditions or those defined under domestic violence compels the protecting party to issue an RO, the court will issue the orders if there are genuine reasons. Once the order is issued, you must do everything in your power to understand its terms. Failure to do so results in a violation and subsequent criminal charges. A typical DVRO will:
- Refrain you from phoning, communicating, or making physical contact with the protected party
- Refrain you from possessing a gun until the duration of the order lapses
- Instruct you to leave home or apartment you co-own with the secured individual
- Stay away from shared pets
- Require you to return or release some of the items or properties you hold
- Ask you to take part in footing of bills
- Order you to obey child visitation and custody orders
- Ask you to pay child support
- Instruct you to avoid extravagance or costs that affect the assets or property shared with the victim
- Instruct you to pay spousal or registered domestic partner support
- Instruct you to attend a mandatory batterer’s intervention class for up to 52 weeks and provide evidence of the same
- Instruct you to sell or surrender to the police any ammunition or gun possessed until the RO lapses
Levels of Domestic Violence Order Protection
Based on the severity of the domestic violence incident and the rate of the violence, they will issue different levels of restraining orders. These are:
Emergency Protective Order (EPO)
When a law enforcement officer responds to a domestic violence call, they evaluate the situation to determine whether the victim is in imminent danger from the assailant. If they conclude the perpetrator is a danger to the victim, they will request the protecting party or court to issue an emergency restraining order. The court issues this order within twenty-four hours after the request. And because many DV incidences occur at night, the state ensures judges are available around the clock to grant these orders to ensure the victim is protected from the perpetrator. Nonetheless, before these orders are issued, the commissioner giving them must establish the following facts under Family Code 6251:
- The court officer has adequate evidence of DV against the alleged victim to apply for EPO
- A dependent is in imminent danger of suffering harm
- A child is presently at risk of abduction or being harmed
- Upon issuance of the order, the victim or dependent will be safe from the perpetrator's harm
After the judge grants the request, EPO takes effect instantly. Once in development, the order lasts for between two to seven days. In case you are a significant other or a registered domestic partner to the victim of violence, the court will instruct that you leave the house right away or not to reach out to the protected party in any way.
An EPO gives the victim of your violence time to move to court and for a permanent restrictive order.
Temporary Restraining Order
Like EPO, judges or commissioners grant temporary stay-away orders for a short duration, usually twenty-five days after issuance. The injunctions are given when the judge establishes that your victim is at risk and requires immediate protection from harm. When the duration ends, the judge arranges a proceeding to decide whether a permanent protective order is necessary.
Permanent Stay-Away Order
A permanent injunction stems from both an EPO and temporary restraining order. Before granting this level of order protection, a hearing is held with all parties present. The court listens to your version of the story and that of the victim to establish sufficient proof to grant the injunctions. In DV cases, permanent restraining orders last for up to 60 months, which is long. Therefore, it is critical to understand the action to take when the court grants these orders against you.
Action to Take Once the Court Grants a Restraining Order Against You
A minor argument at home can turn into a serious domestic violence case and a restraining order. The injunctions often come as a surprise when least expected. When this happens, do not overreact or panic. Instead, open the papers and read the instructions given by the judge. Info on the orders is usually contained in Form DV-110. Note that even if the accusations labeled against you by the victim are false, disregarding the court’s instruction instructions is an offense and can result in criminal charges. Therefore, you should challenge the court’s decision, but you must abide by the RO before a ruling is issued.
When the content of the injunction instructs you to keep off particular places or individuals, ensure you follow instructions. If you live with the victim in the same home and the content of the order instructs you to leave the house immediately, you should take your clothes and other items you will need and look for an apartment elsewhere.
If you are a licensed firearm holder, you will be required to sell it or submit it to law enforcement until the duration of the RO lapses.
At Riverside Criminal Defense Attorney Law Firm, we encourage our clients served with protective orders to carefully read the content of the papers and do as they are told. Nevertheless, you should find an attorney to help you challenge the court’s decision as you do this. Unless it is a permanent injunction, EPO and temporary stay-away orders often come with a court hearing date. Recall, in the hearing, you and the victim will have the chance to make your arguments for the criminal court to decide whether a permanent stay-away order is necessary or not. Therefore, you need to find a profound criminal defense attorney on time to help them understand what happened leading to the restraining orders. With this information, the attorney will ensure your rights are protected in the hearing and that you obtain a favorable ruling.
Note that when you do not show up for the trial, the court will assume that you have no version of the story or you agree with the instructions and give a verdict based on this.
As indicated earlier, DV restraining orders last for no more than 60 months. If the protected individual is the parent to your children, and they have custody, you will stay away from your children for five years. When you co-own the house, you will be forced to stay away from your home for five years. There are endless repercussions of a permanent protective order. The best way to avoid them is to prepare adequately for the court hearing and have an experienced attorney in your corner to contest the court injunctions. Besides, attending a hearing is beneficial because you will be present when the court rules child custody and support. Nonetheless, if you are a no-show, the ruling will be made in your absence and most likely will not be in your favor.
You can file a response before the scheduled court date if there is urgency. When responding, you should use Form DV-120 to share your version of the story. Additionally, you can suggest modifications to child custody and support orders. Filing a response and showing up for the court-appointed date is not compulsory, but it is pivotal in obtaining a favorable outcome.
Note that the alleged victim of the domestic violence is not the only person that can request the court’s protection. You can as well request a protective order against the said victim. Nevertheless, you cannot ask for protection from the victim while filing an answer to the order. Your answer or response must be separate from the request for a restraining order against the victim.
How to File an Answer
Recall, when you are served with RO papers, the first step should be to read its content and adhere to the injunctions given. Besides, hiring a legal expert that appreciates orders increases the chances of a favorable result. When responding to these injunctions, you should follow the following phases:
Completing Form DV-120
In DV cases, you must complete DV-120. This form might not be enough in some cases, meaning you need to look for more space. In these circumstances, you need to complete MC-020.
The forms you will be filling out depend on the instructions given by the court. If the court ordered you to pay child support, you would need extra space to fill out info about your revenue and expenses. The forms for filling out these details are known as FL-150. In addition, FL-150 should be filled out in instances when the protected party demands financial support. Alternatively, you could complete Form FL-155 to declare a simplified financial statement.
Filing and Serving the Answer or Response
Once you have filled out the necessary paperwork, the next step is to file them with the court’s clerk and serve the secured party before the lapse of the deadline provided. Keep in mind that you have a stay-away order from the victim. Therefore, you cannot serve them with the papers in person. Consequently, you should find someone 18 or older to serve the protected party on your behalf. You should send the documents by mail when you cannot find a server to serve the answer.
Once you have served the secured individual, you need proof of service. Without this, the protected party can skip court and claim no service was done. However, when you serve them and complete DV-250, the court will have proof of service, and the victim cannot claim they never received a copy of your response.
The Court Proceeding
As mentioned earlier, it is critical to hire an attorney to be on your side during the trial, even after filing the response. At the hearing, ensure you have an attorney by your side and all the documents involving the case, including proof of service. If witnesses whose testimony can strengthen your response are available, have them write down and sign their statements. These statements are necessary because sometimes, the court can deny witnesses the chance to testify in court. The written report should be filed together with the response and not presented to the court on the hearing day. Nevertheless, the written statement will not be necessary when the court allows them to testify in person.
Once you arrive at the court, ensure you are on time and that you notify the court’s clerk of your arrival. The judge will have several questions regarding the domestic violence incident at the trial. Ensure you answer these questions truthfully to avoid contradictions that further implicate you.
At the close of the case, if the ruling is not in your favor, the court will impose permanent restrictive orders often lasting for up to five years. However, when all goes well, the judge can grant some of your requests in the response, including lifting some injunctions and issuing restrictive orders only on a few essential items. If a permanent injunction is given, you must abide by the instructions. Otherwise, you risk being arrested and prosecuted for a violation of the stay-away orders.
Criminal Charges for RO Violation
California PC 273.6 criminalizes a violation of the content of a RO. However, before sentencing, the prosecuting team must prove the following elements:
- That the restraining orders in question are valid and legally granted by a judge or commissioner
- You were aware of the existence of the injunctions
- You had what it takes to abide by the injunctions
- Nonetheless, you opted to disregard or violate them deliberately
From these legal aspects, you can conclude that if the court injunctions were not legal or valid, you are not guilty of violating PC 273.6. Likewise, you should have been aware of the orders or were served as per the law to be guilty of an infringement. If none of the procedures provided by the law for serving people with restraining orders were followed, you would obtain a not guilty verdict. Also, the aspect of consciousness means you breached the orders on purpose. In the process of violating a RO, you may commit an extra crime. When this is the case, you will face charges of the criminal violation alongside PC 273.6 charges.
It is worth noting that when the prosecuting attorney cannot prove any of the above elements, the court will find you innocent. For example, a protective order has been issued against you after a domestic violence incident involving a spouse. The content of the order instructs you to stay away from the spouse and avoid familiar places they are likely to visit. Sadly, you meet them at a mall where you least expected them to visit. Even if she records a statement for the violation of a RO, the court will not find you guilty because you never intended to contact them. The meeting was accidental, and your actions were not willful.
Defenses for a Restraining Order Violation Charge
An ex-spouse or a protected person can have ill motives and falsely accuse you of violating the stay-away orders. Unfortunately, even when you did not violate the law, you may be charged and convicted. Luckily, you can contest the accusations with the help of a skillful criminal attorney. A profound attorney will devise solid defense strategies to ensure the fact-finder learns the truth and finds you not guilty for the offense. Some of the assertions you can make include:
The Injunctions Issued by the Court were Invalid
If the accusations of the violation are true, you still have a defense. You can argue that no breach occurred because the orders were illegal in the first place. However, you need to provide evidence showing the illegality of the injunctions. In a scenario like this, you can argue the orders are invalid because there is no valid reason why they were issued in the first place. Alternatively, you can claim the documents were forged. If you can compel the court beyond reasonable certainty that the orders were illegal, the court will find you not guilty.
You Had Zero Knowledge
You can only be guilty of a restraining order violation if you were aware of its presence in the first place. If you were never served or did not learn of the restraining order and cannot argue otherwise, you can claim that you did not know it existed. Lack of knowledge about the restraining orders means you are innocent of the charges.
Your Conduct Leading to the Violation Was Not Deliberate
Another solid assertion that can help you win the case is willfulness. If you did not violate the orders intentionally, the court would find you innocent. It can be true that you violated a court order refraining from contacting the victim or visiting places they frequent. In cases like these, you can argue that the meeting was accidental and you lacked knowledge that the secured individual was or would be there. The case will be dropped if the prosecutor cannot demonstrate awareness of the protected party’s presence.
Penalties of a Conviction
If your defenses are not solid enough to contest the charges, you will be convicted. Upon conviction, the penalties you will face include at most twelve months jail and court fines amounting to thousands of dollars when charged as a misdemeanor. On the other hand, a felony conviction will attract up to thirty-six months in prison, and a maximum court imposed fine of 10,000 USD.
Find a Criminal Attorney Near Me
If you go against the terms of the DV restraining order, in the eyes of the court, this is contempt of court that can result in criminal charges and subsequent conviction. The penalties for a conviction are harsh, which is why we at the Riverside Criminal Defense Attorney Law Firm encourage you to hire experienced attorneys. Our attorneys have the skills and knowledge you need to keep the harsh penalties at bay. For case evaluation or questions regarding ROs in Riverside, call us today at 951-946-6366 for a free consultation.