Temporary Restraining Orders
A temporary restraining order or order of protection is a court issued injunction that requires a party to do, or refrain from doing, certain acts. A violation of the restraining order constitutes a misdemeanor contempt of court and subjects the violator to a maximum of one year in county jail.
Types of Restraining Orders and standards of Proof
There are four main types of temporary restraining orders:
An Emergency Protective Order (EPO): This type of Restraining Order is issued by law enforcement and is valid for 5 days. It is used by alleged victims of domestic violence for their immediate protection and safety.
A Domestic Violence Restraining Order (DVRO): This type of restraining order is in force for three weeks, but it can be made into a permanent restraining order for 1 to 3 years.
A Civil Harrassment Restraining Order (CHO): This type of restraining order is used to stop harassment, threats, and stalking by neighbors, roommates, and co-workers. It can be issued for up to 5 years.
A Criminal "No Contact" Order: This type of restraining order is obtained through the District Attorney's Office and forbids you from contacting the complaining party at all except through an attorney.
Each of the above is a document signed by a Superior Court Judge, ordering you to stay away from the Petitioner and/or not contact him or her. The order may also forbid particular forms of physical, verbal, and/or electronic contact (e.g,, phone, texting, and email). For the judge to grant an EPO, a DVRO, or a criminal "No Contact" order, he or she must be convinced that the complaining party has shown, by a preponderance of the evidence, any of the following: violence, a credible threat of violence, or a pattern of harassment. A credible threat of violence means a threat of imminent bodily harm. For the judge to grant a Civil Harassment Restraining Order, he or she must be convinced that the complaining party has shown by "clear and convincing evidence" (a higher standard that the preponderance of the evidence) that there is a high probability and a credible threat that the harassment or other prohibited behavior will continue.
If you have been served with a Restraining Order
If you have been served with a restraining order, it is crucial that you:
Comply with all conditions of the temporary restraining order. Read the TRO carefully and make sure that you understand all of its conditions. No matter how unjustified the order seems to you, full compliance with the order will decrease the chances of a permanent restraining order being issued against you.
Contact a skilled criminal defense attorney immediately. Your attorney will review the facts of the restraining order and determine whether you pose a credible threat to the party who issued the order. Furthermore, the court may view your hiring of an attorney as an act of good faith.
How to Fight a Temporary Restraining Order
File and Answer to the TRO. This is your opportunity to tell the court your side of the story and to demonstrate why you do not and did not pose a credible threat of violence or harassment to the complaining party. Have an attorney review your answer before your file it to ensure that your statements are in your best interest.
Tell your side of the story at the mandatory hearing, where the court will review the temporary restraining order and decide whether or not to grant it. Remain calm and closely follow your attorney's instructions. Any emotional outbursts will undermine your case.
If the TRO turns into a PRO despite your efforts to fight the order, continue to comply with all conditions of the PRO. Permanent Restraining Orders are usually not permanent and may last anywhere from a few weeks to a few years. When the PRO is due to expire, full compliance with all its provisions reduces the chances of renewal.
Defenses to a Charge of Violating a Restraining Order
Successfully fighting allegations of a restraining order violation in California turns on the specific facts of the case. The following are some common defenses that an attorney can argue on your behalf:
The Restraining Order was not Properly Served: There are very strict rules for how a restraining order is to be served. If your attorney can show that these service requirements have not been met, then you should not be criminally liable.
The Defendant had no intent to violate the order: If your attorney can show that you violated the order as a result of an accident, misunderstanding, or mental deficiency, the case against you should be dismissed.
There is insufficient evidence to prove guilt: The prosecution must show, beyond a reasonable doubt, that you violated and intended to violate the restraining order. Criminal charges should not stand against you if your attorney can raise reasonable doubt by demonstrating that the state's evidence against you is inadequate or unreliable.