Has someone you know, or even love, accused you of domestic violence, stalking or harassment? If so, they may also request a restraining order, also known as a “protective order” or “stay away order” against you. Peter M. Liss is an experienced San Diego restraining order attorney who can help those who have been accused of breaking the law. He most commonly works with cases involving either civil harassment or domestic violence. If you want to know how to fight a restraining order in California, please schedule a free initial consultation to discuss your case.
The Two Types of Restraining Orders in California
First off, there are two different kinds of restraining orders that can be filed in San Diego. Domestic violence restraining orders can be issued to protect spouses, children and romantic/sexual partners from violence or harassment, while civil harassment restraining orders can be issued to anyone regardless of their relationship to the person accused of wrongdoing. A lawyer can help you fight either type of restraining order.
Civil Harassment Restraining Orders
Civil harassment restraining orders typically are invoked by neighbors and former friends who feel they are being harassed or who have been attacked physically. They can also be obtained by persons who live far away from the person harassing them if the abuse happens online. Harassment can come in many forms, including threats, uninvited visits to the victim’s property or annoying phone calls. In order to get a restraining order of this type, the victim must have clear and convincing evidence, which can be challenged by your restraining order lawyer.
The Restraining Order Process
If someone is arrested during a domestic violence dispute, the victim will usually be issued an emergency protective order that lasts seven days.
When someone wants a new restraining order or wants to extend the protection of their emergency restraining order, the process begins when they go to a judge ex parte, meaning without notification to the other party. The petition for temporary restraining orders (TRO) state what actions the other party has taken against the alleged victim. Violence and harassment can both be used as reasons for a restraining order, and harassment can come in a number of forms, from threats and stalking to annoying phone calls. In cases involving civil harassment, the petitioner must have clear and convincing evidence, but the standard is much lower in domestic violence cases.
If the judge grants a temporary restraining order, he will then set up a hearing to discuss whether the restraining order should become permanent. While you will not be notified during the initial hearing if someone files for a temporary restraining order against you, you will be served with a notice of the temporary restraining order and of the upcoming hearing for a permanent restraining order. When you receive this paperwork, you should contact an attorney as soon as possible so you can fight the permanent stay away order. Even if you think there must be a misunderstanding, never approach the person who sought out the order or you may be arrested for violating your restraining order.
At the hearing for a permanent restraining order, either party may call witnesses and while you have the right to hire a lawyer, they are not considered mandatory, so you have no right to a court appointed attorney. Whether you need to defend yourself against a stay away order, a criminal defense attorney can help ensure your rights are protected throughout the hearing process. If you win your case, the judge might even order the other party to pay the legal fees associated with fighting the civil or domestic vio
In these hearings, basic rules of evidence apply, which means that any evidence that does not comply with the law (due to illegal search and seizure or irrelevance) cannot be admitted. There also may be an opportunity for an experienced lawyer to negotiate a resolution which doesn’t require filing a restraining order against you long term.
Having a Restraining Order Against You
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 will no longer be able to possess firearms and the order will show up on background checks, which could harm your ability to get a job, get a loan or to rent a new home. If you are a parent, this could also result in you losing child custody, particularly if you are subject to a domestic violence restraining order..
Fighting 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.
The Importance of a Skilled Lawyer
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 lawyer. 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 restraining order cases for the protected party to get back together with the accused, but it is still against California law for the restrained party to have contact personally, by phone or by email, even if the protected person agrees to the contact. The restraining order must first be lifted, which is something your San Diego defense attorney can help with.
If you need to help fight a restraining order or have been accused of a restraining order violation, please call (760) 643-4050 to schedule a free consultation with top San Diego restraining order lawyer Peter M. Liss.