Undoubtedly, being arrested or charged with a domestic violence-related offense can be a frustrating and stressful experience. Aside from the harsh penalties you could face upon conviction, the court could issue a restraining order against you at your arraignment. Although a restraining order is helpful in preventing domestic violence cases, it can negatively affect many aspects of your life and relationships if it is issued against you.

If someone has served you with a domestic violence restraining order, remember that you have your rights too. A seasoned attorney can review the facts of your unique case and help you prepare viable defenses that can help you secure a favorable outcome.

If you or a loved one is facing a restraining order or needs to learn about this court protective order, our attorneys at California Criminal Lawyer Group are here for you, wherever you are in Bakersfield. We will analyze the facts of your case to plan the best defenses to assist you in obtaining a desirable outcome.

An Overview of Domestic Violence Restraining Orders

A domestic violence (DV) restraining order is a court order issued in domestic violence cases to inform the accused (restrained person) to stop contacting, harassing, threatening, abusing, or stalking the victim (protected person). According to Penal Code (PC) 13700, you commit a domestic violence offense when you commit any abuse against an intimate partner.

You commit "abuse" when you intentionally and recklessly use physical force or threaten to use it against an intimate partner or any person you have a close relationship with, including:

  • A former or current spouse.
  • A former or current fiance.
  • A former or current domestic partner.
  • Any person you have a child with.
  • Someone you are currently dating or had a dating relationship with in the past.
  • A cohabitant.
  • Inlaws or family members.

If you are under investigation or arrest for allegedly committing abuse against any of the above people, the court could issue a restraining or protective order against you at your arraignment. That is true even if you are not in court during your arraignment hearing.

Even if the victim of DV does not have evidence to show you abused or injured him/her, the court could accept his/her restraining order request. Generally speaking, if there is a valid and understandable reason for it, the victim will receive a restraining order against you. For instance, the court will likely issue a restraining order against you if the victim can show that:

  • You threatened or abused him/her or his/her child.
  • You are an intimate partner or second-degree relative.

While the alleged DV offense is pending, the court could require you to stay away and stop contacting the victim.

Types of DV Restraining Orders the Court Can Issue in Domestic Violence Cases

Generally speaking, the court can issue three primary restraining orders in DV cases. These orders include:

Emergency Protective Order (EPO)

As the name suggests, the court will issue an EPO in response to emergency DV cases. A police officer can request this type of restraining order when they receive a call about a DV case, and he/she believes the victim needs immediate protection from further abuse. When the court issues an EPO, you should comply with its terms for the required period (typically not more than one week).

Temporary Restraining Order (TRO)

When filing a restraining order petition, a DV victim can request a TRO if he/she needs protection before the court holds a full hearing on the case. In cases where the judge believes the victim is in imminent danger or at risk of sustaining bodily injury, the court could award the TRO without a hearing.

If granted, a police officer or the victim should serve you with the papers to inform you about the order. The TRO issued against you will remain in effect until the court holds a hearing or dismisses the alleged offense, which could take up to three weeks.

Permanent Restraining Order (PRO)

After a TRO hearing where you and the accuser have an opportunity to explain your side of the story on the underlying DV case, the judge could issue a PRO, which could last for a maximum of five years. The judge will issue a PRO if he/she finds sufficient evidence to believe continued or long-term victim protection is necessary.

Terms and Requirements of a DV Restraining Order

The specific terms and requirements the court could require you to abide by will depend on the specific order issued against you. Every case is unique, but most DV restraining orders require you to stop contacting the victim (the protected person) or his/her family members. Types of contact prohibited by a DV restraining order include:

  • Sending emails.
  • Inflicting any form of physical abuse.
  • Sending text messages and phone calls.
  • Making personal contact (moving a certain distance closer to the protected individuals).
  • Interaction on social media platforms like Instagram.
  • Making any surveillance.

Many provisions in these restraining orders will likely require you (the restrained person) to do the following:

  • Pay child support.
  • Surrender any gun you have in your possession.
  • Pay certain bills.
  • Pay partner or spousal support.
  • Not to interfere with any asset or property you own jointly or individually.
  • Refrain from making any changes or alterations to your insurance policies.
  • Complete a 52-week batterers' program.
  • Move out of a shared home.
  • Stay crime-free.

What to Do When Faced With a DV Restraining Order

When someone requests an EPO or TRO against you, you should take the case seriously when served with it. Even though it is temporary, violating any terms and conditions of the order is an offense that could carry severe consequences upon conviction.

To avoid unnecessary penalties and increase your odds of winning the underlying domestic violence case, you should do the following when served with a restraining order:

Read Every Detail of the Order Keenly

When someone obtains a restraining order against you and serves it to you, you should read its terms and conditions keenly to know what to expect as long as it is in effect. If your order specifies no contact or communication with the accuser, attempting to contact him/her through a third party will be unlawful.

That means you cannot ask a family member or relative to pass a message or letter to the protected individual. It is also worth noting that you can violate the terms of a restraining order by accepting the victim's offer or invitation to talk or meet.

Contact a Skilled Defense Attorney

Speaking with an attorney immediately if you do not already have one will be beneficial. Whether or not the judge will issue a permanent restraining order against you will depend on your attorney's mitigating arguments during the TRO or injunction hearing.

Aside from helping you challenge a restraining order, your attorney can help you avoid a conviction or obtain a reduced sentence for the alleged DV offense.

Attend the Hearing As Required

When served with a TRO, you should note the full hearing date keenly because this will be your chance to let the court know your side of the story and why the order is unnecessary in your situation. Typically, this hearing will occur within three weeks after the initial filing or being served with TRO papers.

With the help of a skilled defense attorney, you can present proper evidence, including eyewitness testimonies, to challenge the victim's allegations for the best attainable outcome. If the court agrees to your attorney's defense arguments, the TRO will expire, meaning it will not become a PRO.

Consequences for Violating a DV Restraining Order

Generally speaking, the court treats DV restraining orders seriously. According to PC 273.6, it is a misdemeanor offense to violate the conditions and requirements of a restraining order issued against you. To secure a guilty verdict against you for a PC 273.6 violation, the prosecutor presiding over your case must provide clear evidence to prove the following facts:

  • The court lawfully issued a restraining order against you.
  • You knew about the court order.
  • You had the physical and mental ability to comply with the order's conditions.
  • You knowingly and willfully violated the court-set terms and conditions.

If the court finds the prosecutor's evidence and argument viable, you will be guilty of a PC 273.6 violation, and your penalties will include the following:

  • A jail term not exceeding one (1) year.
  • A fine amounting to up to $10,000.

Although this crime is generally a misdemeanor, the prosecutor could file it as a wobbler offense if it is your second-time conviction for a PC 273.6 violation and the violation involved any act of violence against the victim.

If the prosecutor files your case as a wobbler, you could face misdemeanor or felony legal penalties upon conviction. A felony conviction for a PC 273.6 violation will carry the following legal penalties:

  • Up to three (3) years of jail time.
  • A fine not exceeding $10,000.

Defenses Your Attorney Can Use to Challenge an Alleged PC 273.6 Violation

If you are in trouble with the law for an alleged PC 273.6 violation, you should be ready to challenge the charges for the best attainable outcome. Aside from the above penalties, a PC 273.6 violation conviction could negatively impact your future, current employment, and reputation.

While every case is different, your attorney can challenge the alleged PC 273.6 violation by arguing that:

The Protective Order Was Illegally Issued

A skilled and seasoned attorney can challenge your charges by attacking the legality of the order issued against you. If the victim did not follow the right procedures when requesting a restraining order against you, this defense could work to your advantage to avoid the above mentioned penalties.

Also, if there were no legal basis for the court to issue the order in the first place, this defense argument would be viable for the possible outcome, including case dismissal or a lighter sentence.

The Victim Did Not Serve You With a Notice of the Order

If the victim or protected individual did not serve you with a notice of the restraining order obtained against you, your attorney could argue that you were unaware of it. In that situation, the court will likely drop your charges because you did not know or understand the full scope of the restraining order's conditions.

You Did Not Have the Intent to Violate the Order

To secure a conviction against you for a PC 273.6 violation, the prosecutor must prove that you violated the terms of a restraining order obtained against you willfully. The court will consider your acts or conduct willful if you do them knowingly, intentionally, and purposefully.

If you are unaware of the full scope of the restraining order's conditions, you will not be guilty of a PC 273.6 violation when you unknowingly violate any of its terms. For instance, when you walk to a restaurant and meet the protected individual (victim) inside, your attorney can argue that your contact with him/her was accidental and you did intend to violate the order.

If the judge finds these defense arguments reasonable, he/she will likely give a "not guilty" judgment. Not every allegation of violating a restraining order has to result in a conviction. If you are under arrest on suspicion that you have violated a restraining order condition, a skilled attorney can help you challenge the allegations for the best attainable outcome.

Common DV-Related Crimes That Could Attract a Restraining Order as Part of the Sentence

As mentioned in the previous paragraph, a restraining or protective order is a helpful tool for protecting domestic violence or abuse victims. Common crimes that fall under the umbrella of domestic violence and could attract a restraining order as part of your sentence upon conviction include:

Domestic Battery

According to PC 243(e)(1), you commit a domestic battery offense when you use violence or force against a cohabitant, your child's parent, a former or current fiance, spouse, or dating partner. Arguing that you did not inflict physical injury on the victim is not a defense for this offense.

All that is needed for a conviction for a PC 253(e)(1) violation is evidence that you used force or violence against the victim. Examples of acts that could attract a criminal charge under this statute include:

  • Pushing your girlfriend during a fight.
  • Slapping your husband in the face due to a disagreement.

If you are under arrest as a suspect in a domestic battery case, the prosecutor will file your case as a misdemeanor, carrying the following potential penalties:

  • Misdemeanor probation.
  • Up to $2,000 maximum fine.
  • Detention in the county jail for not less than (1) year.

Corporal Injury to an Inhabitant or Spouse

Inflicting or causing injury to a spouse, cohabitant, or dating partner is illegal under PC 273.5. Unlike the domestic battery offense described above, you are only guilty under this statute if there is clear evidence that you caused an injury to a former or current intimate partner, regardless of how severe it is.

According to PC 273.5, the prosecutor can file your charge as a misdemeanor or felony because it is a wobbler. A felony conviction for a PC 273.5 violation will carry the following sentence:

  • A fine amounting to up to $6,000.
  • A maximum jail time of four (4) years.

On the other hand, a misdemeanor PC 273.5 violation conviction will carry the following potential sentence:

  • A fine of no more than $6,000.
  • A maximum jail time of one (1) year.

Criminal Threats

Another common crime that can attract a restraining order as part of your sentence upon conviction is the offense of criminal threats under PC 422. PC 422 makes it illegal to threaten to commit an offense that will likely cause bodily injury or death to another person, making him/her fear for his/her safety.

For the sake of PC 422, the prosecutor can file criminal threat charges against you even if you do not have the physical or mental ability to execute or carry out the threats. Here are a few examples of acts the court would consider credible threats under this statute:

  • Threatening to shoot another person while holding a shotgun.
  • Texting or emailing your boyfriend that you are going to set his/her house on fire.
  • Calling your ex-girlfriend and saying, "You and your boyfriend better watch your back".

Like a PC 273.5 violation, a PC 422 violation is a wobbler offense, meaning the prosecutor could file it as either a misdemeanor or felony. When you receive a felony conviction under PC 422, your sentence will include:

  • Up to three (3) years of custody in the state prison.
  • A fine not exceeding $10,000.
  • Felony probation.

Conversely, when you are guilty of a misdemeanor PC 422 violation, you should expect the following possible legal penalties:

  • A jail term not exceeding one (1) year.
  • A fine amounting to up to $1,000.
  • Misdemeanor probation.

In addition to the above penalties, you will serve an additional year in jail if you threaten someone with a dangerous or lethal weapon, like a gun.

Stalking

In a domestic violence case, the offense of stalking is a very serious issue. According to PC 646.9, you commit the crime of stalking when you harass, follow, and threaten another person to the extent that he/she fears for his/her safety. Below are examples of conduct or acts that could attract criminal charges under this statute:

  • Sending your ex-girlfriend dead flowers every Monday with a note written or typed, "You are next".
  • Sending your boyfriend letters daily that say, “Come back to me or else” or “You eventually will be my lover whether you like it or not”.

Since stalking is a wobbler, a conviction under PC 646.9 could attract felony or misdemeanor penalties. If your case is a felony, a conviction for the crime of stalking will carry the following probable penalties:

  • Up to five (5) years of custody in the state prison.
  • A fine amounting to up to $1,000.
  • Felony probation.

On the other hand, if the prosecutor files your case as a misdemeanor, a PC 646.9 violation conviction will carry the following potential sentence:

  • A fine not exceeding $1,000.
  • Up to one (1) year in jail.
  • Misdemeanor probation.

It is important to note that the prosecutor will always file a stalking crime as a felony if any of the following facts apply to your case:

  • Your stalking offense was a violation of an active court-issued restraining order obtained against you.
  • You have previous convictions for the crime of stalking.

What to Expect When the Court Drops the Underlying Domestic Violence-Related Offense

When the prosecutor files any of the above-explained domestic violence-related offenses against you, there are chances that the court will issue a restraining order against you. When your offense is dismissed at trial, the protective or restraining order could remain in effect, or the judge could also dismiss it, depending on the type of order issued against you.

Generally, you can request the court to terminate or lift a restraining order issued against you by providing proper evidence to show that:

  • There is a material change in the specific facts upon which the court considered before granting the protective order.
  • Termination of the order would serve the ends of justice.
  • There are changes or modifications to the law that the court considered before granting the victim a restraining order.

Whether or not the court will dismiss or terminate a restraining order obtained against you will depend on the language outlined in the order.

Find a Defense Attorney Near Me

If you are facing a restraining order or are under arrest on suspicion that you have violated a restraining order, retaining the services of an attorney would be a brilliant idea. Our understanding attorneys at California Criminal Lawyer Group can intervene to help you prepare defenses to challenge the allegations you are facing for the best attainable outcome.

Call us at 661-750-8230 to book your first appointment with our experienced and skilled defense attorneys, wherever you are in Bakersfield.