Restraining orders, also called “protective orders,” “stay away orders” or “keep away orders,” are issued to protect victims from abuse, threats, harassment and stalking. If you have been accused of violating a restraining order, it is critical you contact a Del Mar domestic violence lawyer in order to fight the charges and avoid potential jail or even prison time.
Better Understanding Restraining Orders
There are many different types of restraining orders, some issued against domestic partners, some issued against friends or neighbors. Emergency restraining orders are very short-term (lasting only seven days) as they are issued by the police after a domestic violence call. Temporary restraining orders are issued by judges to protect victims during the time period prior to a permanent restraining order hearing. A permanent restraining order can be fought with the help of a Solana Beach defense attorney and evidence like criminal trial, but if a restraining order is issued, it may last up to three years and can even be extended.
The details of a specific restraining order will vary based on the situation, but they usually prohibit contact with the victim, which can include coming within a certain distance of him/her, using surveillance to view him/her, or calling, emailing, texting or using social media to contact him/her. You also cannot possess any firearms while you have a restraining order against you.
Restraining Order Violations
Violating the terms of a restraining order is a crime. Penalties will vary based on the exact situation, but most first time offenders can face up to one year in jail, a $1,000 fine, counseling, payments to a battered women’s shelter and restitution to the victim. If the victim was injured in the incident, you will face a minimum of 30 days in jail. If you violate a restraining order more than once within seven years, you could even face felony charges punishable by up to three years in prison. Possession of a firearm while subject of a restraining order is punishable by up to one year in jail.
Fortunately, there are defenses to this crime. In order to be convicted, the prosecution must prove that the restraining order was legal, that you knew about it and that you intentionally violated the order. One common defense is that you simply didn’t know about the protective order. In cases where you were not in court when the order was issued, lack of knowledge can be a strong defense.
Similarly, if you did not intentionally violate the order, you cannot be convicted for violating it. For example, if you went to a restaurant and were unaware that the person who has a restraining order against you was already seated in the back of the restaurant, you did not willingly violate the law.
Unfortunately, it can be very easy to destroy your chances of using such a defense if you speak to the police, victim or prosecutor without your La Jolla domestic violence attorney. For example, you can’t say that you didn’t know about a protective order if you say “I didn’t know you would be there or I never would have risked violating the restraining order.”
It is not a defense to say the protected party consented to the contact. It is common in domestic violence issued restraining order cases for the protected party to get back together with the accused, but it is still a criminal violation for the restrained party to have contact personally or by phone or email, even if the protected person agrees to the contact. The restraining order must first be lifted.
If you have been accused of violating a restraining order, Carmel Valley domestic violence defense lawyer Peter M. Liss can help. Please call (760) 643-4050 or (858) 486-3024 to schedule a free initial consultation.
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