When you receive a restraining order to keep you away from the applicant, you may find the court orders unnecessary or unjustified. Regardless, you will have to uphold all provisions until your criminal lawyer can challenge the charges in court. Usually, a permanent restraining order protects victims of harassment and abuse from further exposure to the abuser, especially if they live together. Hence, if you are the court order recipient, you may also be facing additional penalties based on domestic violence. Despite the legal basis of protective orders, many defendants have limited capacity to challenge them. The difficulties in having the restraining orders canceled arise primarily because of the burden of proof placed on a complaint before he/she received the court's approval. Subsequently, the presiding judge may be reluctant to cancel a restraining order, unless your criminal defense lawyer provides sufficient evidence to show your innocence in the domestic violence allegations.
Fighting off permanent restraining orders should be a step to consider, mostly if the complaint uses it maliciously to keep you away from your family. Hence, you will need to work with criminal defense lawyers who are well experienced in domestic violence crimes and Protective orders issued to the defendants. We at the San Jose Criminal Attorney Law Firm focus on providing the best legal services to our clients in San Jose, California. With our skilled team's help, you can challenge a permanent restraining order filed against you and raise legal defenses for charges related to violating the order.
Understanding How a Permanent Restraining Order Works
Restraining orders, also known as protective orders, are compulsory directives issued by a judge to protect a complainant against the alleged defendant. Several restraining orders exist, depending on the applicant's relationship and the person to whom the charges are addressed.
Duration of a Permanent Restraining Order
While the term 'permanent' is used to describe protective orders, they are only valid for five years. During this period, you cannot contact or visit the victim, as you will have violated the issued orders.
After the five years, the presiding judge will review your case and determine whether you and the complainant reached amicable terms that dissolve the need for extension of Protective orders.
However, in most cases, the victim will apply for the extension of orders for five years more, primarily if your abusive behavior caused the victims to have traumatizing effects.
The different restraining orders serve to protect specific people, including the elderly, workmates, and people living together. Additionally, the civil procedure code stipulates the various types of activities that attract permanent restraining orders. They include:
When you harass someone, you will have put the person in a hostile situation based on your conduct or how you address the person when speaking. For example, using explicit language when talking to your spouse to demean him/her is harassment and is sufficient to attract a restraining order against you.
Issuing Threats of Violence
Moreover, when you threaten to become violent when addressing someone, he/she can rightfully apply for a restraining order to use as protection against advanced engagements.
In this case, issuing threats will be sufficient for the court to consider the applicant's case against you, especially if you also assaulted him/her. Threats would turn into assault if you coupled them with actions, including raising your fist as if to hit the alleged victim. The judge's primary element to consider will be the reasonable apprehension of safety you caused the victim.
Stalking the Alleged Victim
Stalking a person is unlawful, primarily because you defy their privacy and may even enter unauthorized locations to keep tabs on the targeted victim. Therefore, if you stalk the applicant of a restraining order, he/she will prove your persistent activities in following him/her for the judge to issue a ruling.
Stalking also extends to the online space, whereby you may involve yourself in searching and retrieving unauthorized material about another person. While most social media platforms allow free interactions between users, the businesses cross the line when you begin tracing the victim's movement, location, and personal details like passwords without their approval.
If your actions progress into physical abuse, the victim is sure to receive a restraining order against you as well. It is important to remember that you do not need to injure the person severely for the issuance of a protective order, as long as you created physical contact.
You may also lose your ability to interact with the alleged victim of abuse, even if the abuse was indirect. Indirect physical abuse may arise from setting up hazardous conditions that may injure the person, or even getting others to hurt the victim for you.
Criteria for Receiving a Domestic Violence Restraining Order
Based on the various activities that attract restraining orders as discussed above, you may therefore receive an order after engaging in abuse, making threats, harassment, or stalking.
On top of engaging in any of the discussed unlawful activities, the judge must verify that you qualify for a domestic restraining order precisely. He/she will do this by establishing an existing relationship between you and the complaint within the definition of 'domestic.' Several criteria that the judge must verify before issuing a domestic violence restraining order include:
Checking for a Close Relationship Between You and the Complainant
Before a judge issues a protective order against, an essential step is to establish the existing relationship between you and the other party. In doing so, the matter will be domestic, meaning that you will receive proper orders.
Close domestic relationships may vary, as different people interact in various ways. Hence, the court places your ties into specific relations to avoid domestic violence, restraining orders against people who fall outside the domestic definition.
Learning of the different criteria of relationships classified under domestic terms is crucial, as it informs you of types of interactions that could bring about permanent restraining orders. Hence, for a protective order, close relationships include:
Married spouses are the main parties in most domestic abuse cases involving protective orders. By the nature of their relationship, the married couple lives together, meaning that one may become dangerously exposed to violence or harassment.
Hence, if case facts reveal that you have been abusive to your spouse, you will have a restraining order issued against you to protect the victim of abuse.
The court also recognizes two or more people who live together in a domestic setting. For example, if you have a roommate or a friend who lives with you, any abuse case will fit into a domestic environment to issue a protective order.
Cohabiting also arises between two unmarried parents who have chosen to raise their children together. Hence, engaging in any form of abuse against your partner leads to a permanent restraining order.
Additionally, divorced people also fall within the domestic category, mainly because they were once married and therefore assumed to share several domestic responsibilities. In this case, most people live separately but are still prone to conflict among themselves.
Thus, if you are guilty of abusing your ex-spouse even when living in separate houses, you will receive a restraining order directing you to cut off ties with the alleged victim.
People who are Dating or Previously Dated
You also need to know that you may have a protective order against you for abusing your boyfriend or girlfriend. People tend to classify dating as a causal period, whereby no legal liabilities may arise because the couple lacks certification of being together.
However, confirmed accusations of abusing your significant other would pave the way for permanent restraining orders, mainly if you lived together. Similarly, you may also face the restrictions for abusing someone you used to date. You, therefore, want to avoid further legal implications by following the provisions of the protective order.
Nuclear Family Members and Other Relatives
Living with your siblings, parents, or other relatives also falls within the definition of domestic. Therefore, abusing your family members may attract a permanent protective order, meaning that you will be unable to interact with them for a long time.
For example, if you are a parent accused of using physical or verbal violence against your children, they may seek help and apply for protective orders. If successful, you cannot get close or even talk to the victims until the restraint lapses period.
Types of Orders Available in Permanent Protective Orders
When the judge receives complaints of your abusive behavior, he/she relies on the circumstances of the matter to choose specific restraining orders. Various orders exist for inclusion in the official retraining documents, depending on the nature of harm you pose to the alleged victim. The two main orders issued are:
Stay Away Directives
Firstly, the documents you receive may order you to stay away from the alleged victim. The orders aim to provide the person with adequate space not to see each other. In issuing the restrictions, the victim is safe because you cannot get too close.
The protective order will include specific instructions about the 'stay away' orders. Commonly, you will also have to maintain a particular distance away from the orders' applicant, which will result in further legal consequences.
For example, you may receive orders to stay at least one hundred yards away from the other person regardless of your location. As a result, you will have to be cautious about frequenting places where the complaints are likely to be, increasing the chances of violating the directives.
Moreover, a stay-away order may also prohibit you from voting on complaints at his/her workplace or residence. The orders apply mostly to ex-spouses or people who broke up after dating for a while and are no longer in touch. Hence, the prohibited guidelines, the charges work to prevent you from accessing the complainant's vicinity.
Move Out Orders
Alternatively, your restraining order may order you to move out of a home you shared with the victim of domestic abuse. Usually, the changes affect you if you were married or cohabited with the complainant, meaning that you shared the home.
Since the abuser is classified as the cause of unrest, the court elects to evict him/her to protect the victim from additional problems in finding secondary housing after the domestic violence.
Your move out orders may be significant immediately in adverse cases or may include a short period where you should seek alternative housing before entirely moving out. As a result, you will have to act quickly after receiving the move out restraining order to prevent additional facing charges on the violation.
After leaving your home, the protective orders may also direct you not to communicate with the complainant or get back to the house. Severe cases may also include 'stay away' directives in the move out Protective order so that you can remain away from the victim's home or workplace.
How Permanent Restraining Orders Take Effect
When the victim of domestic violence files for a permanent protective order, the court does not issue the first court session documents. Instead, the judge will give a time frame whereby you will be subject to a temporary restraining order.
The temporary protective orders still issue restrictive guidelines that should keep you away from the complainant until the judge handles the formal hearing for a permanent order.
In the meantime, you can engage your criminal defense lawyer to help you challenge the imposition of a restraining other in the first place. The move is beneficial, especially if you suspect that the complaint is trying to impose restrictions on you without a reasonable basis.
Apart from temporary restraining orders, an alleged victim may also file for an emergency Protective order as he/she awaits the issuance of a permanent restraining order. However, the emergency orders' availability depends on whether your actions and past behavior puts the victim in immediate danger.
For example, suppose the court receives accusations about your rampant violent behavior at home. In that case, you may be subject to an emergency protective order to keep you away from your family before official court proceedings begin. The emergency orders are only operational for five business days or seven calendar days until the issuance of temporary Protective orders.
Consequences of Violating a Permanent Restraining Order
After the judge chooses the types of orders suitable in your case, you will have to follow them strictly or risk facing violation charges. Dealing with violation charges may become quite stressful, as they open up a full criminal trial against you.
Therefore, you need to consult a criminal defense lawyer in case of arrest or accusations of violating a permanent restraining order. Doing so will help you understand the criminal elements that a prosecutor may use to build against you.
Once your lawyer conducts enough research and gathers sufficient evidence, you can then take on the prosecutor and challenge his/her accusations to avoid penalties.
Elements of Crime Related to Violating a Restraining Order
Section 273.6 of the California Penal Code prohibits you from violating court-issued restraining orders as they attract criminal charges. Thus, after arrest and arraignment in court for allegedly violating Protective orders, the matter will proceed to trial. During this time, the prosecutor will receive information from the complainant and investigating officers to build a case against you.
However, the prosecutor bears the burden of proof to show that you committed the offense. You will only face a conviction in a criminal case if the prosecutor succeeds in proving all criminal elements. Thus, he/she should provide clear lines of argument, as failing to confirm even one aspect will lead to the dropping of charges, to your advantage. The details of the violation offense are:
1. The Court Had Issued a Restraining Order
Firstly, the prosecutor will have to prove that the court involved itself in issuing protective orders that required you to stay away from the complainant. Usually, the prosecutor will have an easy time proving this element of the crime. He/she only needs to consult the relevant court clerks to obtain copies of the original protective orders.
The prosecutor may also request the complainant who sought protection against you to provide the court orders' signed copies as evidence. Apart from retrieving the restraining order documents, the prosecutor will have to show that your name was indicated in the papers, meaning the judge addressed them to you.
2. You Knew of The Existing Protective Orders Against You
Secondly, proving that a court issued the orders is insufficient, as you needed to know their existence. Legally, the prosecutor will have no case against you if you did not know of any prohibitive court orders to keep you away from the complainant.
As a result, any signatures appended to the official documents of restraint serve the prosecutor's case, as they prove your knowledge of restraining orders issued against you.
Additionally, the prosecutor may rely on your past court appearances to establish that you knew of the ongoing hearings to issue a protective order against you. By working with court clerks and other helpful personnel, the evidence will be easily accessible, meaning that the prosecutor can prove the crime element.
3. You Had the Ability Follow the Restraining Orders
Moreover, the prosecutor should prove that you could understand the subject matter of the restraining orders and follow it. Here, the primary factor that the prosecutor aims to show is your deliberate defiance.
As a result, the prosecutor may call on you to interpret how you understood the protective order directives. Afterward, he/she will compare your interpretations with how you acted in person to prove his/her point.
Remembering that you do not have to answer the prosecutor's questions in a way that will immediately place you at fault is also beneficial. Hence, it would help if you relied on your criminal lawyer to guide you through reasonable ways to handle the prosecutor's questions and avoid providing self- incriminating information.
The prosecutor may also choose to rely on circumstantial evidence to prove your involvement in the crime element. For example, if you live in a large city where you can easily avoid crossing paths with the complainant, you will be answerable for your actions. Here, the prosecutor may provide evidence to show that you violated the orders despite your ability to use alternative routes or facilities to avoid making a violation.
4. Your Violation of Restraining Orders was Wilful
Lastly, the prosecutor must prove that you willingly violated the Protective Order. The criminal element involves acts committed with full knowledge and defiance of the law.
Subsequently, most evidence used to prove your wilful violation is circumstantial, based on actions that led to defying the orders. For example, if the prosecutor proves that you stalked the complainant for some time before appearing at his/her workplace or home, the information will be sufficient to show an intentional violation.
Defenses to Counter the Prosecutor's Claims
Your criminal defense lawyer plays a vital role in preventing a possible conviction for violating a permanent restraining order. Therefore, you may rely on him/her to raise defenses for your case, based on the circumstances and facts.
Some defenses for the crime include:
- You face false accusations
- You did not willfully violate the Protective orders
- You were unaware of the existence of Protective charges against you
Penalties Issued For Violating a Permanent Restraining Order
In California, violating a protective order amounts to a misdemeanor charge. Consequently, if the judge finds you guilty, you may face a one-year sentence in county jail or a maximum fine penalty of $1000.
However, aggravating factors may attract wobbler charges for your violation case. For example, if you used violence on the alleged victim or have a previous criminal record on the same charges, you could face misdemeanor or felony penalties.
Misdemeanors will attract the same penalties discussed above, while felonies lead to a three-year sentence in state prison or a maximum fine payment of $10,000.
Contact a Criminal Defense Attorney Near Me
Dealing with permanent restraining orders may be quite challenging, especially if you genuinely believe that you received them based on false accusations or unfair terms. Thus, you need the help of experienced lawyers to help you fight the prohibitive orders and represent you in trials related to violations. At California Criminal Lawyer Group, we work to provide all our clients in San Jose, California, with the best criminal defense services. You can avoid dealing with restraining orders and any penalties issued after an alleged violation with our assistance. To get in touch, call us today at 408-622-0204.