In California, a temporary restraining order is an order issued by the court preventing a specific person from stalking, harassing, threatening, or abusing another person. Notably, the protected party is known as the protected person, while the other party is known as the restrained person. Therefore, the restrained person should read, understand, and carefully follow the terms of the order. If the restrained person violates the temporary restraining order, he/she will face severe penalties for breaking the law. In case a person files a temporary restraining order against you, seek assistance from a competent defense lawyer.
At The Los Angeles Criminal Defense Attorney, we work tirelessly in fighting back your charges. Therefore, if you or your loved one is facing a restraining order, you need to seek assistance from our competent defense attorneys. If you live in or around Los Angeles, you should seek our lawyers for a free case evaluation.
Understanding Temporary Restraining Orders
A temporary court order is an order issued by the court for a limited duration. The order requires a particular party to stay under a status until the court hears the evidence and decides on issuing a preliminary injunction. Additionally, according to California law, any person may obtain a temporary restraining order without notifying the abuser/the offender. Therefore, the temporary restraining orders are extraordinary measures since they are issued against the offender without leaving any chance to argue against the order.
Notably, a temporary restraining order lasts for a period of up to three days until the court hears from the involved parties and decides whether they will issue the preliminary injunction. In case the petitioner is unable to prove the sustained harm is irreparable, then the court won't issue the order.
If a person files a temporary restraining order against you, you need to adhere to the orders since the court legally issues them. Additionally, don't violate the orders to avoid severe punishments. Therefore, you should seek assistance from a TRO defense attorney to assist you in challenging the orders.
Terms of a Temporary Restraining Order
In California, a temporary restraining order has the following term:
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Stay-Away Order
The order requires the restrained party to keep a distance from the alleged victim. Additionally, the restrained person should keep a distance from the home, workplace, and children of the protected person.
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Personal Contact Order
The order prohibits the restrained person from engaging in several actions. For instance, it disallows certain activities, including phone calls, destroying property, assaults, and any form of harassment.
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Residence Exclusion Orders
A residence exclusion order will require the restrained person to keep away from the alleged victim's residence.
Understanding Various Types of Restraining Orders
There are various ways of issuing a temporary restraining order. The different types of restraining orders are:
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Emergency Protective Order
An emergency protective order is applicable when immediate intervention is required. The order will apply in the circumstances of spousal abuse or child abuse. The emergency protective order protects a victim until more protection is implemented. Alternatively, the order ensures the offender doesn’t come close to the victim.
Additionally, the emergency protective order is applied where the victim is living in suspicion and fear for his/her safety and requires protection from their abusers. Additionally, EPO is issued quickly; thus, they won't involve the court proceeding needed for permanent restraining orders.
Under the EPO, the victim will explain why they think their lives are in imminent danger and account for their suffered violence. The victim might include the phone call or medical care needed as evidence. Therefore, the victim will file the EPO from the Los Angeles County court, describing their information. To enhance your protection, an EPO should be shared with your nearest local police department. Notably, emergency protective orders remain in place for a few days.
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Civil Harassment Restraining Order
The civil restraining order helps protect a person from violence involving severe harassment, threats of violence, or stalking. Notably, you may ask for the civil harassment order when:
- You are facing harassment, annoyed, or scared.
- You are abused, stalked, sexually assaulted, or harassed.
A civil harassment order doesn't require any special relationship between the involved parties. Therefore, a civil harassment restraining order will be issued to a person subjected to threats of violence, stalking, or sexual assaults to another person and don't serve any legitimate purpose. The civil harassment restraining order will be issued among friends, neighbors, family members, roommates, or even strangers. The court considers the following elements as harassment by the court:
- When you repeatedly follow the victim in certain places or public places.
- When you keep the victim under surveillance by remaining present or following them at home or their work areas.
- Repeatedly taking the victim's photographs, videotaping at their home.
- When you frequently call, email, or text the victims at their workplaces or even at their homes.
What Does a Temporary Restraining Order Prohibit The Offender?
A temporary restraining order will limit interaction between the involved parties. If you are facing a temporary restraining order, the court will require you to do the following:
- If residing together, you will be required to move out of the shared home during the restraining period.
- The order will prohibit you from contacting the victim or going near them unless you communicate in an expressly allowed manner.
- The order will prohibit you from causing any damage to the victim's properties.
- The law will prohibit you from engaging in any form of violence once you receive the temporary restraining orders.
- The order will require you to remain a certain distance from the victim, including the victim's home and workplace places.
- The court will prohibit you from incurring large expenses to affect the victim if you are married.
Notably, after the court issues a temporary restraining order, the order will be entered into the California computer system for allowing law enforcers to have access to your details and information. In case you decide to move out of California, you need to contact and inform local police and notify them of your orders. Alternatively, if you are moving into California from other states with a pending restraining order, the restraining order will be valid, and the California law enforcers will enforce it.
Notably, if the restraining order is implemented between married partners, the order will not end the restrained person's marriage. Additionally, the order will not establish the parentage of your child and the restrained person.
How A Temporary Restraining Order is Served
After granting a temporary restraining order, the named person in the restraining order should be served for them to know the restrictions in place. Additionally, the hearing date and time are contained in the paperwork. Moreover, the petitioner's reasons for filling the temporary restraining order are included. The respondent will be given ten to twenty days to respond to their allegations. In case you are the respondent, you should seek assistance from experienced attorneys in dealing with restraining order cases. The defense attorney will guide you on how to respond to the temporary restraining order.
Violating a Temporary Order In California
You may be serving the temporary restraining order, and during the service process, you violate the order by not adhering to the provided terms and conditions. Therefore, you will face a conviction for violating the orders. However, for you to face the conviction for violating the temporary restraining order, the prosecution team must prove the following elements:
- You willfully and intentionally violated the temporary restraining order.
- You understood the terms and the conditions of the restraining order.
- You could follow the orders without breaking them.
- The judge adequately issued the restraining orders.
Notably, if you accidentally violated the order, you won't face a conviction for violating the order as per California law. When charging the case, the judge will consider whether you have a previous criminal record against you. Therefore, if the judge discovers you had a previous temporary restraining order violation, the case will be charged as a felony. Additionally, if you have prior criminal records, the punishment will be severe.
Potential Penalties for Violation of a Temporary Restraining Order
The penalties for violation of a temporary restraining order will vary depending on the occurrence of the case. Therefore, if you have a criminal history of violating a restraining order, you will face severe penalties. The following are the penalties per the number of appearances:
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First Violation
If you face a first-time charge for violating the restraining order, your defense attorney may secure supervision probation rather than jail. Notably, during the probation period, you should not violate any California laws. Violation of other laws while serving the probation may trigger additional penalties. According to the situations surrounding your case, the court may require you to:
- Make payment for restitution to the alleged victim.
- Attend mandatory counseling.
- Pay for a battered women's shelter.
In case you violate the probation terms, the court will sentence you to a maximum jail time as per California law. To determine your sentence, the court will consider if you made progress on the court-ordered counseling or whether you are likely to engage in violating the temporary restraining order in the future. Additionally, the court will consider the safety of the alleged victim when determining the sentencing. Therefore, violation of a temporary restraining order will result in jail.
The case might be charged as either a misdemeanor or a felony. When charged as a misdemeanor, you will spend two months in jail and pay a fine not exceeding one thousand dollars. Alternatively, if the petitioner sustained physical injuries, you will spend a month in prison and pay a fine of two thousand dollars.
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Second Violation
If you violate a temporary restraining order within a year from the first violation, you will face the charges as either a misdemeanor or a felony. Therefore, when facing charges as a misdemeanor, you will spend up to 6 months in jail. Alternatively, when charged as a felony, you will remain in prison for up to three years, and probation will be applied.
Other potential penalties will include loss of gun rights. In case you are facing a restraining order against you, the law will disallow you from owning a firearm. Additionally, the court will require you to surrender any firearms which you currently own. Notably, when you submit the guns, ensure you return them to the law enforcement officers. Alternatively, you may sell them to a firearm dealer licensed by California. If you ignore the gun restriction laws, you will face additional charges, including three-year imprisonment and a fine not exceeding one thousand dollars.
What to Do After a Temporary Restraining Order is Served Against You
It will be critical to comply with all the terms and conditions given in the temporary restraining order. You should read and understand all the terms and conditions. Although the order might seem unjustified to you, ensure you fully comply with the restraining order. Notably, adhering to the order will minimize the court's chances to issue a permanent restraining order against you.
Additionally, you should contact an experienced defense attorney immediately after the order is issued. The defense attorney will legally guide you in understanding and fighting the order issued against you. Moreover, the court will investigate and review the facts in order. After reviewing the facts, the court will determine whether you pose a threat to the petitioner.
Fighting a Temporary Restraining Order
Immediately after receiving the order, you should file an answer to the temporary restraining order. By responding to the restraining order, you will have a chance to explain your story and give reasons why you think you didn't pose a threat to the complainant. Notably, ensure you have an attorney near you to assist in reviewing your answer before you begin filing and confirm the statements are in your best interest.
Ensure you tell your story during the mandatory hearing. Additionally, during the mandatory hearing, the court will decide whether to deny or grant the restraining order. Notably, stay calm and follow the instructions from your attorney. Moreover, your emotional outbursts may undermine the case.
Possible Defenses for Violation of Temporary Restraining Orders
If you violated the California law by breaking the order, you should seek help from a California criminal defense attorney. The criminal defense attorney will assist in fighting the charges for violating the restraining order. According to the case's circumstances, the attorney may employ the following defenses:
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You Had no Intention for Violating the Restraining Order
Your defense attorney may show the court the violation resulted from a misunderstanding, mental deficiency, or an accident. For instance, you were ordered to avoid walking beyond a specified distance of the victim. However, you inadvertently show up in the same public place, restaurant, or store. Therefore, your attorney might argue you had no intent for violating the temporary restraining order. You accidentally broke the order.
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You Were Physically Unable to Adhere to the Temporary Restraining Order
For instance, the law prohibits you from riding on a particular street where the alleged victim resides. However, you don't have any other alternative route to walk into your work rather than riding in a restricted way. Therefore, your defense attorney may argue you did not violate the law willfully.
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You Had No Knowledge That a Temporary Restraining Order Was Issued Against You
You may argue you were unaware of the restraining orders issued against you. Since you were unaware that an order restraining you was in place, you could not have violated the law intentionally. The defense would be more successful if you weren't served with the temporary restraining order, or the order was accidentally served to the wrong person.
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The Temporary Restraining Order was Not Legally Issued
In California, strict rules are followed when issuing a temporary restraining order. Therefore, you won't face a conviction for violating an order when the orders were illegally issued. Additionally, your defense attorney may argue that the court issuing the restraining orders lacked jurisdiction or the evidence provided was misleading or untrue.
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You Were Falsely Accused of Violating the Temporary Restraining Orders
On several occasions, particularly divorce or a contentious custody dispute, the victim may be targeting for revenge. Therefore, he/she may falsely accuse you of violating the restraining orders. It will be essential to have a competent criminal defense attorney to help you anytime a restraining order is issued. When you face false allegations, the defense attorney will help clear your name and avoid severe penalties associated with violating a temporary restraining order.
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lack of sufficient evidence
To face conviction, the prosecution team must prove you intended to violate the temporary restraining orders. If the prosecutors fail to convince the court that you violated the orders, you won't face a conviction for violating the order. Therefore, the evidence must be reliable and adequate for you to face conviction.
The Restraining Order Process
In California, for the petitioner to be granted a temporary restraining order, he/she will go through several steps. After completing the required procedures, the court will grant the TRO. The steps are:
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Filling for a Restraining Order
The petitioner will file for the temporary restraining order at the respective filling locations. Notably, the victim will file paperwork explaining to the judge why they need a restraining order against them. Additionally, he/she will explain why they think a temporary restraining order is the best for their particular case.
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Restraining Order and Hearing
After filing for the temporary restraining order, the court will either deny or grant the temporary restraining order at the same time. Regardless of the judge denying or giving the temporary restraining order, he/she will set hearing dates for the case before the court.
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Serving the Respondent
In California, approximately five days before the court hearing, the respondent will be served with the necessary paperwork. Notably, the service will be done through personal use. Therefore, the person other than the petitioner will deliver the essential paperwork to the respondent. Additionally, he/she will fill a proof of service for the court. In case the petitioner isn't adequately served within the necessary timeframe, the judge will consider granting the petitioner an extension to give them time for serving the respondent.
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The Court Hearing
During the court hearing, the petitioner will attempt to make their case before the court on why the temporary restraining orders should be issued. Alternatively, the respondent will be allowed to reboot the petitioner's claim and explain why the judge should not issue the temporary restraining orders.
The evidence provided by both parties before the judge will be a crucial factor in determining the winner. Notably, the judge will favor the side, which provides credible and clear evidence. However, with an experienced attorney in dealing with California temporary restraining orders, you will have the best court representation, which will challenge the evidence provided against you by the petitioner. Notably, the judge may rule against a legally justified party because of failure to coherently present the case.
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Court Orders After the Hearing
After the court hearing, the judge might grant a temporary restraining order for five days. Alternatively, after the court hearing, the judge may dismiss the petitioner's claim with prejudice. Therefore, after the court denies the restraining order, the petitioner won't be allowed to ask the court for a rehearing based on the respondent's alleged conduct. Therefore, due to the court's serious attitude after the hearing, you need to seek experienced attorneys to defend you.
Contact a Criminal Defense Attorney Near Me
If you or your loved one is facing a restraining order, the situation might be challenging. In California, violation of a Temporary Restraining Order may result in severe punishments, including huge fines and jail time. Therefore, seeking assistance from The Los Angeles Criminal Defense Attorney will be the best choice in fighting the charges. Our defense lawyers are determined to provide the best legal assistance to our clients. If you are in or around Los Angeles, call us at 310-564-2605 for your case evaluation and a free consultation.
