San Diego Criminal Defense

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San Diego Criminal Lawyer

San Diego Restraining Order Lawyer

Award-Winning San Diego Criminal Defense Attorney 

What is a Restraining Order?

There are two primary types of restraining orders that people may apply for, or be required to defend against: 

  • Domestic Violence Restraining Order

  • Civil Harassment Restraining Order

 

The San Diego Superior Court System has tried to simplify the restraining order process so that you do not need an attorney. However, if you are forced to defend yourself against a restraining order, it is highly recommended that you hire an experienced San Diego restraining order attorney. 

 

Definition of a Domestic Violence Restraining Order

Domestic violence is type of abuse. If you are a victim or domestic violence, that means you are suffering abuse from a person with whom you have a specific, specially defined relationship. By definition, domestic violence requires that 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

 

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). 

 

CLICK HERE for a domestic violence restraining order packet. 
 
If you have children, and need a domestic violence restraining order, CLICK HERE

 

Definition of a Civil Harassment Restraining Order

A civil harassment restraining order differs fundamentally from a domestic violence restraining order because it applies to people who do not have one of the special types of relationships defined above. A civil harassment restraining order can be applied for against any person, but if the person from whom you are seeking a restraining order is a person with whom you have had a special relationship, then you must apply for a domestic violence restraining order. 

 

In order to obtain a restraining order, a person must show that they are in danger of being:

  • Stalked

  • Harassed

  • Threatened 

  • Assaulted or in danger of violence

 

Sometimes domestic violence restraining orders are used to gain an upper-hand in a divorce proceeding. 

Types of Protection From a Restraining Order

A restraining order is a court order. Regardless of whether it is a domestic violence restraining order or a civil harassment restraining order, It can order the restrained person to:

  • No contact (with you or any person you ask to be protected in addition to you)

  • Stay away order (from the protected persons' work, car, children, school, pets, etc). 

  • Turn over weapons to law enforcement;

 

If a person obtains a a domestic violence restraining order, in addition to the above listed orders, the court can also:

  • Force you to move out of your house you jointly own. 

  • Enforce you to obey child custody and visitation orders under penalty of jail;

  • Force you to pay child support, spousal or partner support.

  • Force you to pay certain bills jointly owed to creditors;

  • Prevent you from making changes to insurance policies;

  • Prohibit you from incurring large expenses or do anything significant to affect your property, the other person's property, or jointly owned

  • Release or return certain property that is in your possession. 

 

 

Why a Restraining Order is a Serious Situation

Once a court issues (creates) a restraining order, the order is entered into a statewide computer system (called CLETS - California Law Enforcement Telecommunication System). As a result of this order, every law enforcement agency in California will treat you like a violent and dangerous person. This restraining order will be in effect 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. 

 

A restraining order may effect immigration status, and the violation of a restraining order could subject you to deportation. 

Punishment for Violating a Civil Harassment or Domestic Violence Restraining Order

A restraining order is an order of the court, and a violation of that order is called "contempt of court."  A contempt of court charge is described in California Penal Code 166 PC as - wilfully disobeying a court order. A willful violation of a court order is treated as 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. Additional punishments for a restraining violation can include:

  • Up to 1 year in Jail

  • Up to $10,000 fine

 

Other Types of Restraining Orders

  • Emergency Protective Order (EPO) 

    • An emergency protective order comes as a result of law enforcement, being called to the scene of a crime. If police are called to a domestic violence scene, they can, at the request of the victim, request an EPO from a Judge. An emergency protective order lasts for up to 7 days, which is enough time for the victim to file a TRO (Temporary Restraining Order). An emergency protective order is the tool that police can use to order a person out of their home.

  • Temporary Restraining Order (TRO)

    • If you are seeking either a civil harassment restraining order or a domestic violence restraining order, the first step is applying for a TRO (Temporary Restraining Order).  A TRO is a request to restrain the person, and a judge reviews a TRO request without either party present - and if the petitioner can show a credible threat of violence, or harassment, the judge will issue the TRO. Temporary restraining orders usually last between 20 and 25 days, until the court hearing date - which is a hearing for a permanent restraining order (see below).

  • “Permanent” Restraining Order (PRO)

    • When a TRO is granted you are also given a hearing date - the restrained party also receives a notice of that hearing date. On that hearing date a judge will consider arguments as to whether the restraining order should be extended for a period of up to 3 years. A restraining order that is extened for years are colloquially called "Permanent Restraining Orders."  However, 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 the process of a criminal court case. It is common for a judge in a 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 pending or ongoing. A judge may also grant a criminal protective order if the defendant is found guilty or pleads guilty. A criminal protective order usually lasts for up to 3 years after the resolution of the case. 

Defenses to a Restraining Order

 

Not in an intimate relationship

This defense is specific to a domestic violence restraining order. The modern "hook up culture," has resulted in many types of relationships that are not traditionally described as the types of special relationships necessary for a domestic violence restraining order. If you only casually "hooked up" or "fooled around," that does not qualify as an intimate relationship requiring this special type of restraining order - which has far more serious consequences than a civil harassment restraining order. 

 

Behavior is not harassment, but merely nuisance

A restraining order is specifically for stalking, harssment, and credible threats of violence. Behavior that is deemed to be merely a nuisance does not qualify as behavior that can be restrained - there are remedies available in civil court for nuisance behavior. It is important to remember that a restraining order is asking the court to restrict somebody's movement without proving wrong doing beyond a reasonable doubt - and courts are hesitant to issue restraining orders without good cause. A nuisance is not a cause for a restraining order - and an experienced San Diego restraining order attorney will know how to show that. 

 

No abuse occurred - false accusations

It is entirely within the realm of possibility that you are the victim of a false accusation. Domestic violence happens to both men and women. I don't want to trivialize the experiences of domestic violence victims, but false reports happen, and they happen frequently. Similiarly, complaints of civil harassment are also unsubstantiated. If you are the victim of a false accusation you need to call an experienced San Diego restraining order attorney immediately to protect your freedom and liberty. 

 

Victim wasn't afraid.

The victim has to have a reasonable fear of unwanted stalking, harassment, or violence from the person whom they are seeking to restrain. If the person seeking a restraining order is not in fear, then there is no basis for a restraining order. 

 

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

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