A protective order (PO) or restraining order (RO) is a court decree that safeguards the protected party from harassment, abuse, or stalking. For the protected party to obtain the decree against you, they must demonstrate that their safety or that of their close family is compromised. As the restrained party, you must obey court conditions, failing which you will attract criminal charges.
California statutes recognize domestic violence, elder abuse, workplace violence, and civil harassment orders. If someone has obtained an RO against you in San Diego County, you should understand the decree and its legal consequences to avoid further penalties. At the Law Offices of Anna R. Yum, we will give you a restraining order overview and offer legal guidance.
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Restraining Orders at a Glance
The court issues restraining orders when an alleged victim is targeted with harassment, stalking, intimidation, threats, and insults. The decree prohibits any contact between you, the restrained individual, and the protected party that could result in the recurrence of abuse or the use of physical force. The court issues an injunction if an abused party demonstrates good cause.
Typically, an RO is accompanied by instructions that the restricted individual must abide by. For instance, the court can order you to keep off the victim and avoid contact until the RO lapses. In a domestic abuse case, stay-away orders mean that you must move out of the home you share with your partner and find accommodation elsewhere, far from the protected individual. An injunction could have serious repercussions if the victim is an employee or a colleague. When the court orders you to avoid the abused party, you will miss work for several days or months. If you go to work or engage in activities the court has forbidden, you risk arrest and charges for contravening your restraining order.
The majority of ROs prohibit particular behaviors that endanger the safety of the abused party or their close family. The judge bars you from approaching, speaking to, or stalking the accuser or their immediate family. Some injunctions prohibit you from directly communicating with the victim, whether through social media or the phone. When the court instructs you to avoid contact with the complainant, you must maintain a particular distance from them and avoid areas they frequent, like the mall or workplace.
Sometimes, the judge can issue a decree requiring you to move from the building or street you share with the accuser. The court’s decision when issuing the injunction is guided by the need to keep the victim safe from harm. Therefore, when the victim convinces the court that you are likely to cause physical or emotional harm to them, the judge will instruct you to move.
Nevertheless, the court issues these injunctions only when there is compelling proof that you threatened the victim and the threats caused the accuser to fear for their safety. The court does not need evidence of physical or emotional harm. They focus on the fact that you made threats that made the victim fear for their safety. However, for the court to grant an RO decree in a domestic abuse case, the abused must present proof of psychological, emotional, or bodily harm.
Types of California Protective Orders
California statutes prescribe four primary restraining orders, contingent on the issue. These are:
Emergency Protective Orders
Also known as EPOs, emergency protective decrees or orders are provided for under Family Code 6250. These are normally issued by the police when responding to domestic violence (DV) incidents, and there is a reasonable belief that the victim is at imminent risk of harm. The officer requests the EPO for the victim. Usually, California has judges on-call 24/7 to issue EPOs to individuals, requiring them to prevent the escalation of violence. Therefore, after evaluating the situation and determining that the said victim is in imminent danger of stalking, abuse, or threats, the officer calls the judge, requesting a decree that lasts for five work days or seven calendar days.
However, for the decree to be effective, the officer should request it from a judge or sometimes a commissioner. Before issuing the decree, the judge considers the following conditions:
- The law enforcement officer must reasonably believe the abused party is in immediate danger of DV.
- A person under the majority age risks kidnapping or maltreatment.
- A senior citizen or dependent person is at imminent risk of harm.
- The EPO will protect the abused from the imminent risk of DV, kidnapping, or end the violence and abuse from reoccurring.
- The order protects a dependent adult or senior citizen from recurring abuse or threats.
Once the officer receives the decree from the judge, the EPO becomes final. The decree instructs you to move out of the home you share or co-won with the abused and find accommodation elsewhere far from the protected individual.
Again, an alleged civil harassment victim can obtain an EPO when you stalk them. After one week, when the EPO lapses, the abused can petition the court for an interim or temporary restraining order (TRO).
California TROs
An EPO only protects the abused from imminent harm or danger. Before the order lapses, the complaining individual can request the judge for a TRO that protects them for three weeks, although in DV cases, it could be extended to 36 months. The decree temporarily shields DV, stalking, or harassment victims from harm until the court issues a verdict on the ongoing case. The duration of the order depends on the length of the ongoing criminal case.
The goal of a TRO is to prevent you from contacting the victim until the court grants a permanent restraining order (PRO), a verdict, or dismisses the case.
California PROs
Even after issuing a TRO, if the victim can prove to the court that you can still injure, abuse, stalk, harass, or threaten them, the court grants a PRO even though the case has been concluded. However, because this is a long-term restriction, the court must schedule a proceeding to allow you and the prosecutor to make your arguments for and against the permanent restriction before deciding. The court deliberates on the facts presented by the opposing sides and then decides whether or not the accuser is genuinely at risk from you, the harasser.
The protection the victim receives is contingent on the risk you expose the victim to or the intimidation they face when you are not permanently restrained. PROs protect abused people for up to 60 months in DV cases. For harassment cases, a PRO can last for 36 months. With your freedom at stake, you should contact a skilled attorney at the Law Offices of Anna R. Yum to ask the court not to grant a permanent protective decree.
Restraining Order Service
When a complaining party obtains a restraining injunction, the court schedules a hearing and an issuance date. Upon setting a hearing date, you will be notified that someone is seeking protection against you. The notice will have the hearing date, documents to support the motion, and a report on the action the victim wants the court to take against you, the defendant. You will have ten to twenty days to file a response before the scheduled hearing. If you were not properly served with the papers, the court denies the request for the RO. The documents must be served by law enforcement or a process server. If the service is done through mail or the proper channels, then you can argue that you were never served or learned of the RO in case you are charged with a violation of the injunction.
Instances when the Court Issues Protective Orders
Judges grant protective or stay-away injunctions under different circumstances, including:
- During DV Incidents
Domestic violence, or DV, is abuse perpetrated by an intimate partner, intentionally or recklessly, to control them. Threatening harm or inflicting harm on an intimate partner is a crime that attracts criminal charges and the issuance of protective orders. In this case, an intimate partner is a person whom you are married to, separated from, divorced from, a family member, an in-law, or an individual you are dating or used to dating. Your children, who are twelve or older, can also request protective injunctions against you. When you harm or threaten any of these individuals with whom you share this kind of relationship, they can obtain an injunction restricting you from contacting or going near them.
- Elder Abuse
Persons 65 or older are considered elderly people or senior citizens. On the other hand, dependent adults are people aged 18 to 64 who suffer from bodily or mental impairments that force them to rely on caregivers. If you neglect, hurt, abuse, deprive, or mistreat these individuals, they can pursue a PO against you, the alleged harasser.
- Civil Harassment
Harassment, threats, or abuse from an individual unrelated to or unknown to the complaining person is called civil harassment. Individuals abused by these persons are not eligible for DV protective injunctions, and therefore, they file for civil harassment POs. Complaining parties file these requests when the conduct you perpetrated against them can attract assault or stalking charges.
- Workplace Violence
Another situation in which the court can issue an RO against you is when you engage in physical violence against a colleague or employer. Receiving this stay-away injunction can be confusing because you need to continue performing your work duties. Therefore, when served with the injunction, speak to your attorney to understand the legal provisions.
Behavior Covered by Restraining Orders
If you are a restrained person, the law prohibits you from engaging in any of the following conduct:
- Coming a hundred yards from the protected individual.
- Engaging in any form of communication from the victim, direct or indirect, written or electronic.
- Annoying, stalking, harassing, or disturbing the peace of the complaining party.
Consequences of a DV Protective Order
The restrictions you, the defendant, should adhere to when issued with stay-away injunctions for DV are:
- Return any valuable items or property belonging to the accuser.
- Attend mandatory batterer’s programs like rehabilitation or therapy.
- Prohibition from participating in decisions regarding your children, like where they should live or visitation hours and location.
- Paying money to the accuser if the domestic abuse incident made them skip work or incur extenuating costs paying for ambulance fees, medical bills, legal fees, counseling costs, or expenses finding alternative shelter.
- Honor loan payments and pay specific bills in the house.
- Give the complainant temporary but full control over co-owned properties like matrimonial homes, vehicles, bank accounts, boats, and electronics.
- A prohibition from possessing or owning a gun.
- Avoid locations the protected individual frequents, like your children’s school, a friend’s house, office, or a home you co-own.
Restraining Order Breach or Violation
Per PEN 273.6, you risk life-altering consequences for contravening a protective injunction or failing to comply with court-imposed conditions. It can be challenging to uphold some of the restrictions, like the one prohibiting you from seeing your children or going to work, because a court decree protects a colleague. Other times, you can violate an RO involuntarily when you come 100 yards near the abused individual or accidentally meet at a friend’s event.
Whatever the reason for your violation, once the court is informed that you violated the protective orders, they will schedule a hearing to determine if the allegations against you are true. In the protective order violation proceeding, the prosecutor holds the burden of proof and should demonstrate that:
- A judge or commissioner granted a protective decree against you,
- You knew of the injunction and understood its restrictions. Even if you did not read the decree, the judge will conclude that you understood the terms if you are familiar with the law regarding protective injunctions.
- You could have adhered to the restrictions provided in the decree. The judge must refrain from imposing orders that are difficult to abide by. When they do, you should hire an attorney to help you contest the violation charges by arguing that the restrictions imposed by the judge were unreasonable.
- Your violation of the RO was deliberate. For the prosecutor to secure a guilty verdict, they should demonstrate that you clearly understood the terms of the RO but intentionally violated them. Luckily, with the help of an attorney, you can prevent a conviction by arguing that the violation was accidental.
Penalties for Protective Order Violation
Contravening PEN 273.6 is filed as a misdemeanor in most cases. A guilty verdict under the circumstances attracts no more than twelve months of jail incarceration and a court-imposed monetary fine of at most $1,000.
A PEN 273.6 violation becomes a wobbler if you are a repeat restraining order breach offender and your violation of an RO involves the use of physical force or violence. The crime being classified as a wobbler means the prosecutor can file misdemeanor or felony counts based on the case’s circumstances. A felony attracts 36 months of prison incarceration and court financial fines of at most $10,000.
You should know that if you breached the injunction conditions but did not commit any other offense during the period you were restrained, apart from a traffic violation, you are eligible for probation instead of serving time in jail. When the court sentences you to probation, you should abide by the following conditions:
- Participate in community labor.
- Have frequent meetings with your probation officer.
- Compensate the victim for losses stemming from your physical violence.
- Pay medical expenses.
- Enroll for mandatory counseling sessions.
When you violate these probationary terms, the court can revoke the program and send you back to jail to serve your initial sentence.
Contesting a Protective Order Violation Charge
The penalties for violating a protective order are severe. However, with the help of a competent attorney, you can successfully challenge the allegations. The viable defenses you can utilize during the trial are:
You did not know the Decree Existed
For you to be guilty of a PEN 273.6 violation, the prosecutor must show you knew of the injunction’s existence. The court cannot find you guilty if you can prove that you were unaware of the decree and, therefore, could not violate an order that did not exist in the first place. Besides, your attorney can assert that the violation was unintentional. However, for the defense to work, your attorney should show that you were absent when the order was served and that you never received the RO notice. You can claim someone else was served with the notice, making you innocent.
The Violation was Accidental or Unintentional
Another aspect of the violation the prosecutor demonstrates is that you breached the order intentionally. Your legal counsel can defend you by asserting that the actions that led to the violation were accidental.
Incapacity to Obey Protective Orders
The law discourages courts from imposing RO terms impossible to obey. In situations like this, the court cannot convict you for not obeying RO terms when you lack the present capacity to do so.
For instance, a decree can prohibit you from using a specific route or street because the complaining individual uses it. If the road or street in question is the only one you can use to go to work or your house, you can assert that you lacked the present capacity to fulfill the court instructions and did not knowingly breach the decree. In this situation, your defense attorney will ask the court to dismiss the PEN 273.6 violation counts and revise the order terms.
The Protective Order was Illegal
The court can only convict you of a PEN 273.6 violation if the RO was lawfully granted. Your lawyer can challenge the accusations by arguing that the proof used by the complaining individual to obtain the decree was false. If the judge relied on misleading evidence to issue the injunction, it will be deemed illegitimate, eliminating criminal liability for the breach of the decree.
You are Falsely Accused
Many domestic violence cases are based on false accusations. The protected party can wrongfully accuse you of a PEN 273.6 violation to gain an advantage in an ongoing divorce or child custody case or to seek revenge. An experienced attorney will help you prove the truth that you did not violate the decree and that the charges against you are fabricated.
Fighting Restraining Orders
As the defendant, abuser, or restrained party, you should consider enlisting the services of a protective order attorney to help you challenge the injunction. At the Law Offices of Anna R. Yum, we will help you respond to the RO notice within the provided time and represent you in court. Also, we will defend you against a protective injunction violation charge.
In the protective order hearing, the accused or protected individual must submit the following evidence to acquire a permanent restriction:
- Police report or statement on the circumstances leading to the request for restraint.
- Images or footage of the defendant inflicting harm to the abused person.
- Threatening messages or emails from the defendant.
If the complaining individual obtains orders to restrain you, you will suffer severe ramifications. A PO, especially one for domestic violence, will have severe consequences for your life. Therefore, you should act fast by contacting your attorney to begin preparations for the hearing to avoid an unfavorable verdict where the court grants the abused a PRO.
In the proceeding, your attorney will demonstrate to the court why granting the decree is unnecessary. The attorney should also summon witnesses present in the alleged violence to testify in your favor. When the court agrees with your attorney’s arguments, the presiding judge will allow the interim restraining decree to expire and will not issue a permanent restriction.
However, when they disagree with your arguments and permanently restrain you, you can always appeal the decision with the help of your legal counsel if you believe the judge erred in the judgment. If the appellate court finds fault in the verdict, they will reverse the PRO, restoring your freedom.
Find a Criminal Defense Near Me
When you have a protective order against you in San Diego County, you will likely be worried about its consequences and effects on your freedom. You should comprehend the court decree and your duties to prevent a violation. A competent attorney will explain the order, its meaning, and how to challenge it or avoid a breach. At the Law Offices of Anna R. Yum, we will guide you through the RO until it lapses or the conclusion of your case. Call us at 619-493-3461 to evaluate your protective order.