A restraining order is a civil order issued against a defendant for certain criminal offenses. It protects the victim or witnesses against the defendant's harmful acts. There are two main types of restraining orders under California Law: permanent restraining orders and temporary restraining orders. The common offenses for which the court issues a permanent restraining order include stalking, sexual assault, child abuse, harassment, and other related offenses. Under California PC 273.6, violating the terms of a restraining order is a criminal offense. If you have a permanent restraining order against you or face charges for violating a restraining order, our attorneys at California Criminal Lawyer Group can help. We will help you create a solid defense to fight your charges in Fresno.
Understanding a Permanent Restraining Order
Having a permanent restraining order issued against you can affect your life in many ways. You will have restrictions on the places you can visit, meaning you will not be free to engage in the activities you love. A restraining order will likely require you to maintain a certain distance from the victim. If you share a home with the victim, the court can order you to move out of the residence after the issuance of a restraining order. Other areas the court can prohibit you from visiting include the victim's place of work or school.
Depending on the terms of the restraining order, the court can recommend supervised visitation of your children. This means you must hire someone to supervise the interaction whenever you want to see your children. Therefore, if you cannot afford to cater for a supervised visitation, the court can prohibit you from interacting with your children. This and many other restrictions indicate why it is crucial to contact an experienced attorney when you have a restraining order against you.
You could be wondering about how long a permanent restraining order lasts. The period for which the order is valid varies depending on the circumstances of your case. A permanent restraining order can last several weeks, months, years, or even a lifetime. The court only issues the restraining order where there is conclusive evidence of harassment, physical harm, or threats. After the order issuance, it is unlawful for the restrained person to contact the victim (petitioner).
Terms Of A Permanent Restraining Order
The standard components of a permanent restraining order include stay-away orders, personal conduct orders, and move-away orders. A stay-away order means the restrained person must maintain a certain distance from the protected person. For example, the court can order the restrained person to always maintain not less than 100 yards away from the protected person. If you go close to the protected person, he/she can sue you for violating the terms of a restraining order.
A personal conduct order defines the actions that the defendant should not engage in. These include communicating with the protected person, stalking, or attacking the protected person. Engaging in any of these actions could lead to an arrest and prosecution. A personal conduct order can prohibit you from contacting the victim physically, on the phone, or via email.
A move-away order requires the restrained person to move away from the protected person. For example, the restrained person can visit a place or attend a function without knowing that the protected person is also present. In this case, the restrained person should move away from the protected person.
The court will likely impose harsher conditions if you violate the terms of a permanent restraining order and the protected person notifies the court. However, the court will require sufficient evidence to show that you violated the terms of a restraining order. The evidence can be in many forms, including emails, text messages, video recordings, photographs, or other documents.
The Requirements For Obtaining A Permanent Restraining Order
For the court to issue a permanent restraining order against you, the victim must prove that you have committed certain unlawful acts against them. It must also be evident that the victim had a particular relationship with you (the abuser) before seeking a restraining order. A restraining order request must meet the following conditions for the court to consider it:
- The abuser must have threatened or abused the victim.
- There should be a close relationship between the abuser and the victim, including current or former cohabitant, partner or spouse, girlfriend or boyfriend, the parties that have a child together, close relatives, or divorced partners.
- The victim can apply for a permanent restraining order against a defendant who meets the abovementioned conditions. If there is no close relationship between the victim and the abuser, the victim can apply for another form of restraining order, like a civil harassment restraining order.
The Process Of Obtaining A Permanent Restraining Order
A victim goes to court to seek a permanent restraining order against an abuser. When the court accepts the petition, it sets a hearing and gives the victim a notice regarding the court proceedings. The victim must attend the court hearing on the selected date. The court can abandon the request if the victim fails to attend the hearing.
The court also issues a notice to the alleged abuser requiring them to attend the restraining order court hearing. The court can sustain the victim's petition if the defendant does not attend the hearing. As the alleged abuser, you and your attorney should attend the restraining order hearing. At the hearing, you can present your story and persuade the judge not to grant the restraining order. When the defendant is absent, it is easy for the victim to convict the court to give a permanent restraining order.
The court holds a restraining order hearing to lengthen an existing temporary restraining order or to make a temporary restraining order permanent. When a victim applies for a restraining order against a victim, the court first issues a temporary restraining order. During the hearing, the alleged abuser will have a chance to oppose or argue against the restraining order. If the defendant does not prevail at the hearing, the court converts the temporary restraining order into a permanent one. When you have an experienced attorney, you can thwart a restraining order.
You should consult an attorney before the restraining order hearing. Your attorney will help you prepare for the hearing, guide you through the hearing, and oppose the restraining order on your behalf. You should immediately contact an attorney upon receiving a notice that someone has issued a restraining order against you. You will not have another opportunity to fight against the order if you do not attend the restraining order hearing.
What To Expect When There Is A Permanent Restraining Order Against You
A permanent restraining order affects the restrained person similarly to a temporary restraining order. The main difference between the orders is the duration for which they are valid. There is more to ensuring that the abuser does not affect the protected person’s life than barring physical contact.
The restrained person can face additional conditions as follows:
- The defendant must fulfill any spousal court orders, including paying child support and alimony.
- The restrained party can take back specific personal property after the court imposes a permanent restraining order.
- If the restrained person lives in the same residence as the protected person, he or she must move out after the permanent restraining order takes effect.
- The restrained person must not make spending or investment decisions that could harm a shared financial arrangement with the protected person.
- The restrained party must not make any decisions or changes that affect shared insurance plans.
- The court can order the restrained person to transfer ownership of mobile phone plans that the victim uses to the victim's name.
- The court can also order the restrained person to stay away from the protected person's workplace, children's schools, or the victim's residence.
A Permanent Restraining Order And Your Gun Rights
A restraining order can have adverse effects on your gun rights. When the court imposes a permanent restraining order against you, the judge can order you to surrender any gun you own or possess. You can submit the gun to law enforcement officers or a state-recognized gun dealer. Certain people have legal rights to own or possess guns in California. However, you cannot own or possess a gun if you are considered a threat to society.
The Common Types Of Permanent Restraining Orders
There are different types of permanent restraining orders under California law. The applicable restraining order depends on the type of offense involved and the victim’s relationship with the defendant. The common types of restraining orders include:
Elder Abuse Restraining Order
Physical abuse does not have to occur for the court to issue a restraining order. An elder abuse restraining order is different from other types of restraining orders since it is intended to prevent elder abuse. Financial abuse or misuse of an older person's money can trigger the issuance of a restraining order to protect older people. Financial abuse is the financial misappropriation of an older person's income, usually by a close relative or caregiver. The common ways of financially abusing older people include forging the elderly's signature on bank documents or stealing the older adult's money and property. Elder abuse can also involve abandoning or neglecting an older person.
Civil Harassment Restraining Order
The court can issue this order if any violence has been applied to the victim. The order could also give a protective order if there was a legitimate threat of violence. A civil harassment restraining order is the most common type of restraining order. The court can declare civil harassment in certain circumstances. A court could impose this type of restraining order if you have a pattern of behavior that frightens, harasses, or annoys someone.
Workplace Violence Restraining Order
This restraining order could apply if an employee experiences behavior or incidents that would cause a normal person to fear for their welfare or safety. California law allows employers to seek workplace violence injunctions on behalf of their workers. It must be clear that the said employee is suffering at work due to physical abuse, a credible threat of violence, severe harassment, or stalking. Employees can seek a regular civil harassment restraining order if they are not entitled to a workplace violence restraining order.
Domestic Violence Restraining Order
If you are a registered domestic partner, a close relative, married, divorced, living together, or separated from the victim, he/she can file a domestic violence restraining order against you. You must be in an eligible domestic relationship with the victim. People in a close relationship with you include your children, siblings, grandparents, sisters, or parents. For a permanent domestic violence restraining order to apply, there must be a domestic relationship between the perpetrator and the victim. Strong evidence of emotional abuse, threats of abuse, or physical abuse is required. A qualifying relationship is a personal relationship between the perpetrator and victim as defined by the California Domestic Violence Act.
Violating A Restraining Order And Contempt Of Court
Violating a civil order such as a permanent restraining order is considered "contempt of court. These violations occur when a person intentionally ignores a permanent restraining order, also known as a "protective order," issued by the court. The California Penal Code Section 273.6 makes contempt of court a felony punishable by fine and/or imprisonment.
To prove a conviction for violating a restraining order under Penal Code section 273.6, the prosecutor must prove:
- A judge granted a legal protection order.
- The defendant knew about the existence of the legal restraining order.
- The defendant knew that he/she was willfully violating the protective order.
California Penalties for Violating A Restraining Order
The violation of a protection order is generally a misdemeanor. If charged as a misdemeanor, the penalty under Penal Code 273.6 can be up to one year in county jail. The court can order you to pay a fine of up to $1,000.
If convicted again of violating a restraining order, the defendant will face misdemeanor or felony charges. If the violation is a felony, it is punishable by up to three years in state prison and a fine of up to $10,000.
The penalties and fines will be harsher if the subsequent conviction is within a year of the first conviction. If the violation of a permanent restraining order makes the victim suffer physical injury, a mandatory minimum jail requirement of 30 days will apply.
If the judge determines that the defendant breached the protective order, he or she can promptly return the defendant to custody.
Even if the lawsuit has been resolved, violating a restraining order is a separate criminal offense punishable by jail time and fines.
Violating the criminal protection order is also a form of probation violation, and the court has the authority to impose any punishment up to the maximum allowed for the underlying charge.
The Legal Defenses For Violating A Permanent Restraining Order
A permanent restraining order is a court order issued by a court prohibiting a person from contacting the victim personally or electronically. Restraining orders can be issued in California for a variety of reasons, including domestic violence, stalking, and harassment.
If the court grants a permanent restraining order, the person against whom the order is made (the defendant) must comply with the order's requirements. This could include restrictions on their ability to contact or approach the person applying for the restraining order. If the defendant violates the terms or conditions of the restraining order, he/she could face criminal charges.
The good news is that you can use several defenses to challenge the violation of restraining order charges. It is crucial to note that these legal defenses are not mutually exclusive. A defendant could raise multiple defenses as part of a challenge to an injunction.
The most common legal defenses that you can use to fight your charges are:
Lack of Evidence
A defendant could argue that insufficient evidence supports the issuance of a restraining order. For example, if the plaintiff's domestic violence allegations are based on circumstantial evidence or hearsay, the defendant can be able to demonstrate insufficient evidence to issue a restraining order.
False Allegation
The defendant could also allege that the plaintiff's allegation is false. This defense can be raised if the defendant can present evidence that contradicts the plaintiff's claims, such as witness statements or physical evidence. There are endless reasons to make false accusations against someone. For example, your spouse could accuse you of violating the terms of a restraining order to give them an upper hand in the divorce process. When the relationship with a partner turns foul, he or she could accuse you of violating a restraining order out of jealousy or revenge.
You Acted In Self-Defense
If the plaintiff's domestic violence or harassment allegations include physical violence, the defendant can claim that it was self-defense. This defense can apply if the defendant can prove that he/she feared imminent harm from the plaintiff and that his actions were necessary to protect themselves.
Lack of Jurisdiction
A defendant may argue that the court lacks jurisdiction to issue a permanent restraining order. This defense can apply, for example, where allegations of harassment or domestic violence are not within the court's jurisdiction.
First Amendment Rights Violation
A defendant could argue that the restraining order violates their First Amendment rights, such as freedom of speech and assembly. This defense could apply if the order prevents the defendant from participating in assembly or protected speech.
No Intentional Act
Remember the elements of the offense where the prosecutor must prove that you intentionally broke the terms of the protection order. You can present a credible defense that, while you did violate the law, it was by mistake and not intentional.
Whether You Can Appeal A Permanent Restraining Order
In California, permanent restraining orders are generally civil orders separate from criminal court proceedings. However, this can have serious consequences, including consideration in subsequent criminal or family law matters. Restrained people can challenge or appeal restraining orders, but the process is intricate and time-sensitive.
Court proceedings challenging an injunction typically begin with a hearing in which both parties table their arguments. Where an order is made based on allegations of sexual crimes, attempted criminal incitement, or serious crimes, the burden of proof is high. The defendant can provide evidence to refute the claim, such as proving that they are not only the victim of a false accusation but also that their actions were justified.
If the court finds that the injunction was unfairly granted, it can be modified or appealed. This is especially true when family members are involved or when the detained person transfers some personal property under the original order.
In some cases, a restraining order could be reconsidered if the applicant pleads guilty to charges such as child prostitution or criminal solicitation. It is important to note that challenging or appealing an injunction is a complex legal process and should only be commenced with proper legal advice. The rules of evidence and procedure are strict. Any misstep can lead to the court upholding the order. The court can also impose additional penalties for violating the restraining order.
While it is possible to challenge or appeal a permanent restraining order, the process is characterized by legal complexities. Since a restraining order can affect family law matters and criminal court proceedings, consulting with experienced legal professionals who understand restraining orders is advisable.
Find an Experienced Criminal Defense Attorney Near Me
Violating a permanent restraining order is a serious offense with severe consequences, like jail time and fines. If you face charges for violating a restraining order, obtaining complete representation from a skilled criminal defense attorney is essential. An attorney will evaluate the details of your case and establish the most effective legal defense strategy to use on your behalf in court. Depending on the details of your case, including whether there were any witnesses to the incident, your attorney can determine if there is insufficient evidence to prove a violation of the restraining order. In other cases, if you accept responsibility and show remorse for your actions, you can negotiate with the prosecutor to reduce your charges. If you have received a restraining order notice or face charges for violating a restraining order, we can help. At the California Criminal Lawyer Group, we have experienced attorneys who can help you challenge a permanent restraining order. Contact us at 559-712-8377 for reliable legal representation in Fresno.
