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San Diego Criminal Lawyer

Domestic Violence Restraining Order

Explained by a San Diego Criminal Defense Lawyer

How to Fight Domestic Violence Restraining Orders

What is Domestic Violence?

 

Domestic violence is abuse. Abuse is defined as:

  • Physically hurting or trying to hurt someone

  • Sexual Assault

  • Making someone reasonably afraid that they are likely to be hurt (threats or promises of harm). 

  • Harassing behavior

  • Stalking behavior

  • Threatening or hitting someone else

  • Disturbing someone's peace

  • Destruction of property

  • Other actions (such as abuse of family pets, "gaslighting", throwing things). 

 

By definition, domestic violence is an intimate relationship between two people must have existed at some point. An intimate relationship is when two people have been:

  • Married or Domestic Partners

  • Dating or used to date

  • Currently living or used to live together

  • Have a child together

Domestic violence restraining orders are commonly used as a tool to gain the upper-hand in a divorce or child custody lawsuit.

What a restraining order can do

A restraining order is a court order. It can order the restrained person to:

  • No contact and stay away (from their work, car, children, school, pets, etc). 

  • Move out of your house (even if you jointly or fully own the property);

  • Turn over weapons to law enforcement;

  • Obey child custody and visitation orders under penalty of jail;

  • Pay child support, spousal or partner support (if you are married or domestic partners);

  • Pay certain bills jointly owed;

  • Make no changes to insurance policies;

  • Not incur large expenses or do anything significant to affect your or the other person's property if you are married or domestic partners; and

  • Release or return certain property 

 

 

Why a Domestic Violence Restraining Order is a Serious Situation

Once a court issues (makes) a domestic violence restraining order, the order is entered into a statewide computer system (called CLETS - California Law Enforcement Telecommunication System). Every law enforcement agency in California will treat you like a violent and dangerous person from that point forward. 

 

Your restraining order works anywhere in the United States.

 

A domestic violence restraining order can potentially prevent you from receiving a professional license (such as a law or medical license), and/or a security clearance for government work. It may even jeopardize your current government security clearance. 

 

Restraining order may effect immigration status. 

Punishment or Violation of Domestic Violence Restraining Order

A restraining order is an order of the court, and the violation of that order is considered "contempt of court."  Under California Penal Code 166 PC - wilfully disobeying a court order is a crime. Under California Penal Code 273.6 - violating a domestic violence restraining order is an "aggravated crime," carrying with it a potential prison sentence for repeat violent offenders. 

  • Up to 1 year in Jail

  • Up to $10,000 fine

 

Types of Restraining Orders

  • Emergency Protective Order (EPO) 

    • Law enforcement, if called to a domestic violence scene, can at the request of the victim, as a Judge for an EPO. Judges are available to issue EPOs 24 hours a day. This order lasts for up to 7 days, which is enough time for the victim to file a TRO (Temporary Restraining Order). A person can be ordered out of their home with this order.  

  • Temporary Restraining Order (TRO)

    • TROs are almost routinely granted on their face. If the judge believes you need protection, he or she will give you a temporary restraining order. Temporary restraining orders usually last between 20 and 25 days, until the court hearing date.

  • “Permanent” Restraining Order (PRO)

    • When you go to court for the hearing that was scheduled for your TRO, the judge may issue a “permanent” restraining order. They are not really “permanent” because they usually last up to 3 years. At the end of those 3 years (or whenever your order runs out), you can ask for a new restraining order so you remain protected.

  • Criminal Protective Order or “Stay-Away” Order (CPO, SAO)

    • Sometimes, when there is a domestic violence incident (or series of incidents), the district attorney will file criminal charges against the abuser. This starts a criminal court case going. It is common for the criminal court to issue a criminal protective order against the defendant (the person who is committing the violence and abuse) while the criminal case is going on, and, if the defendant is found guilty or pleads guilty, for 3 years after the case is over.

Defenses to a Domestic Violence Restraining Order

Not in an intimate relationship

"Dating" is a word that has taken on many meanings, and the judge has the discretion to consider the full extent of the relationship. If you only casually "hooked up" or "fooled around," that does not qualify as an intimate relationship requiring this special type of restraining order and can usually get a case dismissed outright. 

 

No abuse occurred - false accusations

Domestic violence happens to both men and women, and I don't want to minimize the experiences of victims, but false reports do happen, and they happen with frightening frequency. If you are a victim of false allegations, you are in a scary spot, and that is why you need an aggressive criminal defense attorney who works with top private investigators (ex-army intelligence, undercover DEA, and former FBI). 

 

Victim wasn't afraid.

If you are a small person and your victim is a big person and you say "I'm going to beat you up," it's not likely a criminal threat because the "victim" was not afraid. Fear is an essential componant to obtain a domestic violence restraining order, without fear, there is no need for the courts  to restrict a persons freedom of movement. 

 

The fear was not sustained

In addition to the requirement that the victim was actually in a state of fear - that state of fear cannot be brief or fleeting - it must be prolonged. If you make a threat and the victim is only briefly afraid and then forgets about the threat alltogether - then it is not a criminal threat. 

 

PROTECTED FREE SPEECH

This one is capitalized because we have laws protecting free speech in this country and what it is that you may be punished for as a result of your speech. Angry soliloquies and violent rants are still technically protected free speech (as long as you don't use "fighting words" at a particular person). 

 

Victim of Domestic Violence?
 

Get Free Help NOW at the San Diego Family Justice Center. The San Diego Family Justice Center has all the resources you need to receive medical treatment, take legal action, or seek shelter.  

 

CLICK HERE to visit their website

Other Areas of Domestic Violence Law: