Temporary restraining orders are also referred to as temporary protective orders. These are court-issued orders protecting the person who has petitioned them against another person alleged to have abused or threatened to harm them. Temporary protective orders are standard in cases involving domestic violence where persons in an intimate relationship disagree, and one feels they need protection from their partner. The person that obtains the protective orders is referred to as the protected person, and the person the orders are against is the restrained person.
As court documents, obeying temporary restraining orders is mandatory, and a failure can result in your prosecution and serving jail time. As the name suggests, these are temporary orders which, after a hearing, can become permanent. Fortunately, you can fight the temporary orders with our help at California Criminal Lawyer Group and avoid the implementation of permanent protective orders that last longer.
Understanding Temporary Restraining Orders
People in a relationship, current or past, often disagree on multiple issues. Out of the disagreement, one of the partners can restrain the other from having contact with them, coming near them, or living with them. A restraining order is a court document issued to the supposed victim of abuse or potential abuse. If your partner petitions the court for a restraining order, they must convince the court that you harass or abuse them.
Temporary restraining orders in a domestic setting can be move-out or stay-away orders. When a temporary protective order is issued against you, the things you must abstain from doing are outlined therein. Once served with the temporary protective order, you must stay away or stop doing all the things written in it.
However, if you disobey the orders, you risk an arrest for violating them and prosecuting criminal proceedings against you. If the temporary orders are against your conduct, it means you are prohibited from any form of communication with the protected person, stalking, or attacking them. Under this type of temporary protective order, you cannot communicate with the protected person on social media.
If the protected person obtained a stay-away order against you, the order defines the distance to keep from them. Further, you will be restricted from specific places where the protected individual frequents to avoid coming within the specified length with them. Some of these places may be the home you share or their family, their place of work, restaurants they frequent, or even health clubs.
Protective order laws, however, do not allow any person to obtain the orders against you. Those that are allowed to file a protective order include:
- A married or divorced spouse
- Current or past registered partner
- A person you have lived with previously or are living with presently
- Your current or one-time boyfriend or girlfriend
- A person you share a child with and the child is under 18
If an individual falls under any of the above categories, they can petition to have a temporary restraining order against their abuser. If the court grants the petition, the order is given, and you become served with it. Once you have received it, even as you contact an attorney to guide you on your next course of action, you need to obey the instructions in it. Common restrictions found in domestic protective orders include:
- Having no communication or contact with the protected person or going near them
- Not having a gun in your possession for as long as the temporary restraining order is in place
- If you shared a home with the alleged victim, you must move from it
- The order may also contain rules on child visitation or rights, these you must also obey
- Keep your payments for child support up to date
- If you are a married or registered partners, the court can order you to provide financial support
- If you owned pets together, you might be asked to stay away from them
- If you have privileges over a specific phone contact or account, the court can order you to give it to the protected party
- The court can ask you to pay for some bills
- As the temporary order is in effect, you will be asked not to incur substantial expenses affecting shared property
- A temporary restraining order can also indicate that you release to the protected person some property or items
What to do when you Receive Temporary Protective Orders
More often than not, restrained persons are surprised when temporary restraining orders are taken against them. After you are served with them, the crucial thing is to read and understand the contents well. Obeying the directives in the order is critical to your avoiding prosecution.
After receiving the orders, it does not matter if the accusations are true or not. What you should do is contact an attorney to guide you on responding to the order. If the protected person obtained the temporary protective orders under pretense, you could prove this in court, instead of challenging them directly. The form that contains restrictions in the temporary protective order is Form DV-110.
If the temporary order asks you to stay away from certain places, keep a particular distance or move from a home you co-own, beginning to argue against that can result in your prosecution. A temporary restraining order means it can be discontinued after the hearing to determine if to issue a permanent protective order or not. A temporary restraining order does not last long, meaning it is in your best interest to obey it and move out if called to.
Equally, a vital order to obey is one concerning a firearm. Keeping a gun after being told to surrender, it can result in criminal prosecution. Submitting the weapon to the police is temporary, waiting for the outcome of the hearing. If you prevail during the hearing, you can have your firearm back. On the other hand, if after the temporary restraining order hearing a permanent order is issued, you will surrender your gun for a more extended period provided the order is in effect.
After identifying an attorney to represent you during the hearing, you will discuss the circumstances that may have led to the protective order's issuance. Your attorney will also perform a background check on the protected person as they gather evidence to present in court. Being smart on approaching your defense and handling the temporary orders is critical to ensuring a favorable outcome. If you share a child or property with the protected person, your approach to the issue is crucial to your continued participation in your child's life.
Attending court on the given hearing date is vital because failure may result in permanent restraining orders. If permanent protective orders are issued, the period of restrictions is extended and lasting five years in some cases. Failure to attend the hearing, especially when you have children with a protected party, can be detrimental to you and your children. The order can restrain you from contacting your children or having the judge rule on their support without your input. Attending the hearing helps prevent the harsh outcome of the temporary restraining order and affords you a fair opportunity to argue your case.
Sometimes, you might prefer to respond to the temporary protective order before the hearing date. Your answer to them is made through the filing of Form DV-120. You can give your side of the story on the allegations that resulted in the temporary restraining order in this form. In the same form or your reaction, you are allowed to indicate your preferred visitation orders and custody rights over your children.
If you fail to file a response or attend court, you will not face any criminal charges. However, if you want a favorable outcome, your lawyer will advise that you respond to the temporary protective orders and attend the hearing.
Sometimes as the restrained person, you may feel you have reasons to obtain a restraining order against the protected person. According to the law, you can also petition the court to grant you restraining orders against the protected person. Filing your response to the temporary order is different from demanding to have one.
Steps you should Follow in Response to the Temporary Restraining Order
After receiving a temporary restraining order and comprehending the contents therein, you can decide to respond to it as earlier discussed or wait for your day in court. Filing a protective order against the alleged protected person is not a response to your temporary protective orders. An attorney with experience in restraining orders is the best place to guide you through the process to result in excellent results. Should you decide to respond to the contents of the temporary order, there are various steps to follow that include:
Filling and Filing of Form DV-120
When the order was issued due to domestic violence, the form to fill in the response is known as DV-120. If your answer is more detailed and requires more space, you are allowed to fill an additional page referred to as Form MC-020.
Aside from this, other details may be required depending on the circumstances of your case. Equally, the demands from the protected party can determine the response you make. For instance, when child support is required, you will be required to fill and file the FL-150 form. This form declares your earnings and expenditures. Alternatively, you can fill and file FL-155, which offers a simplified statement of your finances. When the protected party demands for spousal support, form FL-150 will be adequate.
Presenting the Answer
After you have filled all the forms required, you must submit them for filing and presentation to the protected individual. This process must be completed within time to avoid going beyond the given deadline. At this stage, you must give the court clerk with two copies of your response to file. Your initial answer is preserved at the court, while you receive back stamped copies.
After filing the answer, you are required to identify an adult to serve the protected party with a copy. Because of the existing temporary restraining order, you cannot directly present your response to the protected person. If a process server is not available, you can use mailing services to serve the protected party with your response.
Additionally, you must prove that the response was duly served, and the other party received it. This you do by filling and filing a form that shows evidence of service. This form is referred to as DV-250. This protects you from claims by the protected party that they never received the response.
After granting the temporary protective order, the court issues a hearing date where both parties present their arguments. The protected person must convince the court why you should receive a permanent restraining order while you must argue why you do not deserve to be issued with one.
During the hearing, the court allows you to present evidence supporting your arguments and disapproves of the other party's claims. A witness is also essential in helping your argument. However, the decision to allow a witness to testify lies with the court. Alternatively, a written statement signed by the witness is equally admissible. If you obtain a written statement, you must file it with the court at the time of filing your response. The statement is also served together with the answer to the protected party.
On the hearing day, arrive early. After your arrival, inform the clerk you have come. As the hearing proceeds, you will be asked questions by the judge. Answering them simply and truthfully without contradiction makes your case more convincing.
As the hearing concludes, the judge is ready to offer their verdict. There are two expectations from this hearing, to issue a permanent restraining order or not. If a permanent restraining order is issued, some items on it can become adjusted. Following the permanent protective restraining order, the contents therein must be obeyed to avoid criminal prosecution.
What Happens when you Breach your Temporary Protective Order?
When you violate any rule in the temporary restraining order in California, it is an offense severely punished. The statute that describes the violation is found under PEN 273.6. If faced with charges of violating this statute, you receive a conviction after the prosecutor proves certain aspects or facts of the violation. These facts are:
- That a court lawfully issued the temporary restraining order in question
- You knew of its existence
- You had the ability and capability of obeying the orders
- But you intentionally violated the law or disobeyed the rules in the order
Concluding from the violation elements, you are innocent of the crime if the court never lawfully issued the temporary restraining order. Similarly, if you did not know about the existence of the order or you never were served, you are innocent of the offense. Willfulness, as an element, indicates that your violation was intentional and purposeful.
In some instances, you can break other laws as you disobey the orders. If you do, the prosecutor will prefer two charges against you. One for violating your restraining order according to PEN 273.6 and the other for the offense you commit.
Your lawyer's work is to challenge the prosecutor's evidence or case by creating doubt in the jurors' minds. If prosecution cannot prove an element beyond a reasonable doubt, you will be found innocent of the offense. For instance, the order prohibits you from coming a few feet to your ex-spouse. Unfortunately, you are at a club with your friends and suddenly bump into her. If she accuses you of violating the order, the prosecutor must prove that you intentionally went to the club because you knew she was there.
However, with evidence and testimony from your friends, the prosecutor's case is weak and will be dropped. Accidentally encountering your ex-spouse does not mean that you intentionally violated the order.
Legal Defenses when you Violate Temporary Restraining Orders
When a protected person accuses you of breaching protective orders, the prosecutor can initiate criminal charges for the violation resulting in jail time. However, you can challenge these allegations in court and prevent a conviction. When served with a notice to a hearing or arrested for the violation, the first thing you should engage a criminal attorney. Your attorney studies the circumstances of the breach and the charges against you to formulate credible defenses. Some commonly used defense strategies are:
The Temporary Orders were Fraudulent
A crucial element to prove in this case is that of the legality of the temporary orders. For a guilty verdict, there must be a determination that the orders were legal. If no grounds for granting the orders existed or they were forged, this can be your defense. Proving this will mean the charges against you are dropped.
You did not know about the Orders.
Another critical element to prove is knowledge. If you never knew about the existence of the temporary restraining order, you could not be guilty of violating it. If the prosecutor is challenged on this element and cannot determine it, it can result in the dismissal of the case against you.
Your Actions were not Purposeful or Intentional.
A critical factor in proving in PEN 273.6 violations is willfulness or intentional actions. If you violated the orders, but you did not violate intentionally or willingly, you are innocent of the violation. For instance, an accidental encounter with the protected individual does not result in willfulness. But, if you went to a place you were restricted from going and met the alleged victim there, this defense does not apply.
Repercussions of a Conviction
Violating PEN 273.6 is often prosecuted as a misdemeanor offense. If you become convicted of this offense, you are likely to be jailed. The jail sentence, in this case, will not exceed one year. Additionally, you may be ordered to a fine not exceeding $1,000. A fine is typically charged alongside your jail sentence or in place of it.
Violating temporary restraining orders can also be a wobbler. If you are convicted of the offense for the second time or were violent as you disobeyed it, you can become prosecuted on felony charges. A felony conviction, in this case, will result in:
- Imprisonment at the California state prison for three years
- Payment of a fine not above $10,000 which is paid instead of or on top of the jail sentence
Temporary Restraining Orders and Immigration Law
As an immigrant, you can also face charges for violating PEN 273.6. But, a conviction will not result in your inadmissibility or deportation. Crimes that qualify a defendant to removal or inadmissibility are aggravated felonies. Disobeying temporary restraining orders does not qualify as a crime affecting your immigration status.
Expunging your Criminal Record
A small mistake can result in your conviction for this offense. Unfortunately, a conviction taints you such that any person that views your record will not trust you. This results in you being stigmatized and missing opportunities like other people without criminal records. For instance, a potential landlord can deny you a house after seeing your criminal record. Similarly, you may qualify for a specific job, but you are denied the opportunity after running a check on you and finding a conviction.
This makes it crucial to seek expungement of your record from the public eye. After you have completed your sentence as ordered, you can petition for the expungement of your record. Your lawyer presents your petition in court, and the prosecution is informed. If the prosecutor protests the expungement, a hearing date is set to present arguments from both sides.
After the hearing, the judge decides if to grant or deny the expungement. If the expungement is granted, your record is deleted from the public and is only visible under some law enforcement agencies. If someone asks you about your criminal record after expungement, you can truthfully answer you have no conviction.
Find a San Jose Criminal Lawyer Near Me
Temporary restraining orders are frustrating to those who receive them. The orders mean the possibility of being separated from your loved ones or things you love for an extended time. But, with our help, we can vigorously fight this possibility to a desirable outcome. At California Criminal Lawyer Group, we understand your frustrations and your need for fair and aggressive representation to prevail over it. Call us at 408-622-0204, and we will schedule a meeting to strategize over your case.