Somebody took out a restraining order on you, and now you can’t go near them or interact with them… unless you want to get into trouble. Even if you don’t believe a restraining order should be in place, it doesn’t give you the right to violate it. In fact, if you disobey the law, you could end up going to jail, paying a hefty fine, or both.
By learning more about restraining orders in California, you can avoid violating them and stay out of jail. Here’s some key information you should know.
What Is a Restraining Order?
A restraining order, also called a stay-away order or a court-ordered protective order, protects one party from another. The party who files for it is called the “protected person.” If there are children involved, the victim who files is going to be given full custody.
A person could get a restraining order put into place if they are being abused, threatened, stalked, harassed, or neglected. If you have a restraining order against you, this means that you cannot have any form of contact with the alleged victim, including contact via phone, text messages, in-person meetings, email, and social media.
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What Happens if You Violate a Restraining Order?
If you violate a restraining order in the state of California, this is a misdemeanor offense. You could face up to a year in jail as well as a $1,000 fine.
However, your case could be classified as a wobbler, which means that it might be a misdemeanor or a felony, based on the circumstances of your situation. If your current violation involved violence, or you have a prior violation on your record, then you could be sentenced with a felony charge. Penalties include up to three years in a California state prison and a fine of up to $10,000.
If you are convicted of violating a restraining order, you might also have to go to mandatory counseling, attend domestic violence classes, send restitution to your victim, and make payments to a shelter for battered women.
Proving a Restraining Order Violation
Violating a restraining order is a contempt of court. To convict someone of violating a restraining order, a court has to show beyond reasonable doubt that this person is guilty. They need to show that this person had a legal protective order issued against them, they had knowledge of the protective order, and they intentionally and willfully violated it.
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Defending Yourself Against a Restraining Order Violation
There are reasons why you may have violated a restraining order that are perfectly valid and not illegal. For instance, maybe you were never given notice and you didn’t have the chance to read the order. You might not have even known about the order.
Or, the violation could have never happened. The alleged victim might be making it up that you violated the order, and they have no evidence to prove that you actually did. If you have an alibi, like witness statements or proof you were nowhere near the person at the time of the supposed violation, then you could potentially get off the hook. During a cross-examination, it may be obvious that the alleged victim is not telling the truth.
Another valid reason for an alleged restraining order violation is that you weren’t trying to violate it and you simply managed to be in the same place as the alleged victim at the same time. Perhaps you live in the same neighborhood and frequent the same shops, for instance. You didn’t mean to bump into them, and they mistakenly thought you were stalking or harassing them. Tell the truth to your defense attorney and they can help you communicate that to the court.
Remember that there needs to be sufficient evidence of you violating the order, like text messages that were sent or video of you actually doing something.
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How Someone Gets a Restraining Order
Someone may start by calling the police and alerting them that they need a restraining order in place. They might also call a nearby shelter if domestic violence is involved.
Then, the party could go to the California court closest to them and complete the required forms to request a restraining order. They will need to detail why they are requesting the protective order and pay the necessary fees, unless they qualify for a fee waiver.
The judge will then decide if they will issue a temporary restraining order, also known as a TRO, which will last for typically 21 days. After hearing evidence, the court will then determine whether or not they will issue a permanent restraining order. But before this hearing occurs, the court will issue notice to the restrained person through a process server, and the proof of service will need to be filed.
The court will issue a restraining order if the evidence shows it is necessary, and it will remain in effect for five years.
Getting an Oakland Criminal Defense Attorney to Challenge a Restraining Order
Around 21 days after the TRO is put into place, the hearing to show evidence for a permanent restraining order is held. The Oakland criminal defense attorney you hire can provide proof as to why the restraining order is unnecessary and call witnesses to testify. The TRO will simply expire if the judge sides with the defense attorney. Even if the judge decides that a permanent restraining order is necessary, you and your Oakland criminal defense attorney can always appeal it on a higher level.
If you have evidence that the restraining order is unnecessary, it’s critical to show it to your defense attorney right away. For example, perhaps the alleged victim is saying you hurt them, when in fact they hurt you – and you have the video footage to prove it. Or, maybe they’re making up lies altogether, and you can show that you weren’t anywhere near them when the alleged inciting incident occurred.
No matter what, you should use the evidence you have to prove your case. It’s also important not to talk to anyone about your case, and to cut off communication from the alleged victim as soon as the restraining order is put into place. Even if they are lying and nothing actually happened, you should cease communication to protect yourself. Otherwise, it could be used against you and ensure that a permanent restraining order is put into place.
Domestic Violence Restraining Order
Depending on the type of restraining order in place, a person could be restricted when it comes to going near another party, calling them, There are four kinds of restraining orders: domestic violence, elder or dependent adult abuse, workplace violence, or civil harassment.
Domestic violence is a common type of restraining order. Someone will file this if they have a close relationship with the alleged abuser. This could include being married, being divorced, dating now or in the past, living together, having children together, being family members, or being or in-laws.
Here’s an example of when a domestic violence restraining order could apply to a situation: A man and a woman are dating and eventually move in together. The man suspects the woman is having an affair, so he starts emotionally and physically abusing her. One night, it gets so bad that she has to go to the hospital for treatment. After that, she decides to file a domestic violence restraining order, and it is granted. He can no longer live with her or have any contact with her.
With a skilled Oakland criminal defense attorney on your side, you can decide on your defense to fight against a restraining order violation.
Civil Harassment Restraining Order
A civil harassment restraining order is a restraining order put into place against someone the alleged victim is not close with, like a colleague, roommate, neighbor, or friend. For example, a neighbor might be walking by a person’s property and hurl insults at them. The situation might get to a point where the neighbor is threatening to kill the other person. The person being harassed could file for a civil harassment restraining order to keep their neighbor away.
Elder Abuse or Dependent Adult Abuse
Dependent adults and seniors are particularly vulnerable to abuse. They may not be able to communicate what’s happening to them or, if they have memory issues, they might not even remember the abuse they have experienced.
A restraining order could be called for if a caregiver abuses a senior. For instance, they may tell the senior to hand over their bank account information or else they’ll hurt them. Or, they might physically abuse the senior when no one else is around.
Workplace Violence Restraining Order
A workplace violence restraining order could be necessary if one employee threatened violence against another. For instance, Carol may have told Michael that if he doesn’t follow the rules of the workplace, she is going to have him beaten up. An employer has to file a workplace violence restraining order on behalf of the employee. Otherwise, an employee can file a civil harassment restraining order on their own.
Emergency, Temporary, and Permanent Restraining Orders
There are various types of restraining orders including emergency, temporary, and permanent ones.
An emergency restraining order can last up to five business days or seven calendar days, and is usually put into place if there are domestic violence issues occurring. The alleged victim could always request that an EPO be extended if the restrained party is threatening them.
A TRO goes into place for the 21 days before the court hearing from a permanent restraining order.
A permanent restraining order can last up to five years. If you have a child, you can file on behalf of them as well.
Effects of a Restraining Order and Violation
If you have a restraining order put into place, you could lose access to your family, your friends, your children, and your home. And if you’re convicted of a violation of your restraining order, then you could not only serve time behind bars, have to pay a fine, and fulfill other obligations, but you could also have trouble finding new housing or getting a job. Your friends and family may turn their backs on you and you might have no one to turn to for help.
All of these consequences could be compounded if you’re facing additional charges, such as domestic violence charges due to a situation with an ex or a family member, or stalking charges brought on by the alleged victim.
With the help of an Oakland criminal defense attorney, you can potentially avoid a conviction and secure a brighter future ahead. But first, you’ll have to hire one who will fight for you inside and outside of the courtroom. That’s where Oakland criminal defense attorney Elliot Silver of Silver Law Firm comes in.
Hiring an Experienced Oakland Criminal Defense Attorney
To find an Oakland criminal defense attorney for your restraining order violation – as well as other criminal charges you could be dealing with – look for one who has several years of experience dealing with criminal cases and has excellent case results. Elliot Silver could be the ideal fit for you if you have a temporary restraining order against you or you’re dealing with the fallout from a violation of it.
In one case, attorney Elliot Silver represented a man who faced accusations of holding his wife over a 15th story balcony. Attorney Silver expedited the case to a manageable conclusion by negotiating with the prosecution. His client agreed to attending 52 weeks of domestic violence classes, doing time served, and pleading to a misdemeanor.
Elliot is prepared to help you as well to try and secure a favorable outcome for your case. If you’ve been charged with a restraining order crime and are seeking representation, reach out to Oakland criminal defense attorney Elliot Silver today at (510) 995-0000 or by emailing him at advice@esilverlaw.com. He looks forward to hearing from you and assisting you at this time.
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