Facing accusations of domestic violence against someone can attract legal repercussions, including the issuance of a mandatory restraining order. After the victim reports you for aggressive behavior, you will be subject to a presiding judge’s assessment of whether you threaten the victim’s safety.
You may risk facing a temporary restraining order that restricts you from accessing the victim and coming into physical contact with them. If so, you should contact your criminal defense attorney as soon as possible to help you navigate the restraining order procedure and justify your position.
At California Criminal Lawyer Group, you will work with skilled and experienced attorneys ready to help you fight an unfairly issued restraining order. Additionally, you can rely on us to help you defend yourself after facing accusations of violating a temporary restraining order. We aim to help you avoid a jail sentence, so we make it a priority to provide quality legal services backed by thorough research. Our services are available for clients who have received temporary restraining orders in Bakersfield, California.
The Nature of a Temporary Restraining Order
When a general member of the public fears for their safety, they can apply to the nearest court for a restraining order against the suspected person who is exposing them to harm. Anyone can exercise this application as a right, as the law aims to protect citizens from risky situations.
Once the aggrieved party presents their issues to the court, the presiding judge assesses their claims to determine whether they warrant an order. In a domestic violence case, the judge checks whether the victim is at risk of physical, psychological, or emotional harm. They do this by requesting that they recount their experiences with you as the alleged perpetrator.
If the judge finds alarming details indicating the victim’s risk, they will issue orders preventing you from coming into close contact with the victim. The terms in the orders vary based on each case's circumstances, and some directives are harsher than others. These court orders are consolidated into a document called a temporary restraining order.
Based on this, you may receive a restraining order from the court if the victim reports you for harassing them in a domestic setting. The nature of a temporary restraining order involves keeping you away from the victim for 21 days before a formal trial begins. It serves as an interim protective order to prevent the victim from suffering additional harm as the court prepares to listen to proceedings in full.
Although the restraining order is temporary, the orders are effective immediately upon your receipt, and you must follow them to avoid facing punishment for violations. You need a defense attorney to explain the restraining orders in depth to avoid criminal liability.
Parties Eligible to Receive a Temporary Restraining Order
A temporary restraining order for domestic violence claims prevents the applicant from possible harm caused by someone with a close relationship with them. As a result, the victim must demonstrate that their relationship with you is close, making it important to secure the restraining order.
After the court receives the restraining order request, they must determine the nature of your relationship with the applicant before granting it. You may obtain a temporary restraining order if you fall within any of the following categories of relationships:
You are Married to the Applicant
A marriage relationship is a temporary restraining order justification for the applicant to seek a restraining order, as you are most likely living with them. They can, therefore, justify the need for protection if they demonstrate that you expose them to harm when in the same setting.
Marriage documents may be useful to justify the relationship, but the judge may still grant the victim their temporary restraining order request based on urgency. They will then ask for evidence later to match the claims and to change the restraining order from brief to permanent.
You are Divorced or Separated
Although you may be divorced or separated from your partner, you will likely come into contact occasionally. For example, the parent with primary custody may need to drop off the children to the other parent, meaning they must meet.
If you face accusations of causing harm or posing a threat to the victim’s safety despite the separated or divorced relationship, the judge can issue a temporary restraining order. They do this to ensure the victim’s safety, regardless of the living arrangements and child custody exchanges.
You Have a Child With the Applicant
Similarly, having a child with the applicant means you must see them regularly despite not having a formal title to the relationship. The court considers you a close person to them based on your shared parentage, so you may be at risk of a temporary restraining order if the applicant reports a possible risk of harm.
You and the applicant are Dating, or are ex-boyfriends.
Persons with a dating history or who are currently dating may not live together, but they generally have easier access to each other. A temporary restraining order case, therefore, classifies them as parties with a close relationship, and you may receive the order even if the relationship ended.
You and the Applicant are Cohabiting
Cohabitation involves sharing a home, whether or not you have a romantic relationship. Cohabiting parties are also prone to sharing expenses and responsibilities at home, making it essential for the court to prevent any form of abuse. As a result, a temporary restraining order may apply even if you are a cohabitant, forcing you to stay away from the applicant.
The Formal Court Process Involved in a Temporary Restraining Order
As an accused party, you should understand the formal court process resulting in your temporary restraining order to ensure you receive it fairly. The first step requires the victim to present the necessary paperwork to the court, indicating the need for a temporary restraining order. You should note that the initial application process occurs independently, meaning the applicant does not have to notify you of their actions.
After the judge reviews their temporary restraining order request, they examine the claims to establish whether they are necessary. The applicant must then inform you of the temporary restraining order within five days after application if the court issues a positive response. You will then be subject to the restrictions after confirming receipt, making it important to follow the guidelines contained.
Since a temporary restraining order only lasts for 21 days, observing the guidelines as you prepare for the upcoming trial is better. The judge holds a formal hearing to give you a chance to justify your position and challenge the temporary restraining order if necessary. Making a temporary restraining order is important because the trial primarily determines whether to change the orders from temporary to permanent.
Partnering with your criminal defense attorney before the hearing is essential, as they provide guidelines on the most suitable steps to take in challenging the restraining order. They are also ready to represent you in court, giving you a better chance of convincing the judge to drop the orders if they are unnecessary.
On the trial date, the temporary restraining order applicant provides detailed details on why they sought the restraining order and the type of harm they face when around you. You can thus expect the complainant to present evidence of past abuse or harassment to support their claims.
For example, they may present images, video footage, or audio clips of you physically, emotionally, or psychologically causing harm. They may also use online evidential sources like messages, emails, or images you sent as threats to show your intention to cause damage.
Conversely, you can present details to challenge the issuance of a restraining order if you face unfair accusations. Your criminal defense attorney can help you demonstrate that the victim’s claims are false, and you should present sufficient evidence to justify your responses.
For example, if you only believe that the victim made exaggerated claims to make you look abusive, consider countering the accusations by presenting new evidence. Your defense lawyer can also help you make oral court presentations, giving you a better chance of persuading the judge to reconsider your requests.
Common Terms in a Temporary Restraining Order
Upon establishing that the court may grant you a temporary restraining order, you must consult your criminal attorney to learn the specific terms to adhere to. Your attorney will expound on the importance of adhering to the temporary restraining order directives even as you work on challenging them or requesting a formal review.
Failure to observe the temporary restraining order guidelines can attract criminal charges, so you need to understand the types of orders you receive and follow them accordingly. The following are commonly issued temporary restraining order terms to keep you away from the applicant:
Residence Eviction Orders
If the court considers you an immediate threat to the victim, they will order you to leave the house you share and find a different residence. The orders should secure the victim’s immediate safety, but they can also disadvantage you, especially when issued on short notice.
A standard eviction order may give you between twenty-four and forty-eight hours to vacate the house, making it essential to have a proper exit strategy. You can also request the court's assistance in finding temporary housing, and they are likely to help you based on the situation's urgency.
Although residence eviction orders are protective, you can complain against the temporary restraining order if you only believe the victim requested it maliciously. If you challenge it, consider working closely with your criminal attorney for support.
Stay-Away Orders
Receiving a stay-away order is common under temporary restraining order guidelines, as it is the main directive to ensure you do not come into proximity with the applicant. Stay-away orders often include guided details of the distance between you and the applicant, so you must observe these regulations to avoid possible criminal accusations.
Your stay-away orders may also include lists of banned places that you must avoid, mainly because you risk running into the applicant there. For example, you may have to prevent their place of work, school if the victim was a minor, or areas close to their home.
Since your stay-away order involves maintaining a specific distance, you should be careful with your proximity to the restricted areas. The applicant can report a violation any time after the temporary restraining order becomes effective, so consider making adjustments early enough.
Restraint on Personal Conduct Orders
The presiding judge may also restrict your conduct if it is the primary reason for the applicant to seek a temporary restraining order. Every case presents varying circumstances, and accused persons may present different personal traits that make them a threat to the temporary restraining order applicant.
For example, you may be prone to stalking the applicant by following them physically without their knowledge or consent. Stalking is dangerous because you obtain details about the victim’s routine and places of work, making it easier to attack them later.
Online stalking also qualifies under prohibited behaviors, and it involves following the applicant’s online accounts and activities. Often, offenders are guilty of making fake profiles disguised for better access to the victim.
If the judge finds enough information to label you as a stalker, you can expect them to issue a firm warning against continuing with the activities in your temporary restraining order. You will also receive specifications of the conduct to avoid, as well as the repercussions of failing to adhere to the guidelines.
Alternatively, your temporary restraining order may prevent you from engaging in physically abusive conduct after the court verifies that you have caused physical harm to the victim repeatedly. Tin additions are additional directives like moving away from your house and maintaining a specific distance from the applicant. You must observe these guidelines to avoid subsequent repercussions.
Harassing the applicant is also a personal conduct issue that the judge must highlight in the temporary restraining order. Harassment may involve different actions, like threatening the victim, exposing them to ridicule and insults, and causing mental anguish that creates unrest. The judge must, therefore, issue an order to stop you from engaging in additional harmful practices for the applicant’s safety.
What Violating a Temporary Restraining Order Entails
A temporary restraining order violation may occur regardless of whether you undermined one or multiple orders. If the court receives reports about a violated restraining order, they may authorize your arrest, as you will have committed a criminal offense.
A temporary restraining order violation is a crime in California and is prohibited under Section 273.6 of the California Penal Code. Upon arrest and detention for violating the code, a prosecutor takes over your case and is responsible for demonstrating your guilt and warranting your conviction.
The criminal law process requires the prosecutor to handle the burden of proof, so they must show that you violated all elements of the crime associated with the offense. During the trial, you can expect the prosecutor to present the following crime elements:
A Judge Issued a Temporary Restraining Order Against You
The prosecutor begins their case by showing that you received a temporary restraining order obtained through proper court procedures. They must establish that a qualified judge assessed the case circumstances and found the orders necessary, meaning that you posed a safety risk to the applicant.
Since the required evidence is part of court records, the prosecutor can retrieve it easily and present it in court to support their position. Sometimes, you may appear before the same judge who issued the temporary restraining order, making it easier for the prosecutor to establish this element of crime.
Additional details for the prosecutor to present include your name, address, and personal information, as they must demonstrate that you are the recipient of the order. Since you will be present during the hearing, the judge may ask you to confirm that the issued details are correct. Doing so does not incriminate you, provided you ensure the details are correct.
You Knew of the Temporary Restraining Order
Further, the prosecutor must show that you were aware of the temporary restraining order, as it is a critical detail to the current court proceedings. Knowledge of the charges makes you criminally answerable in cases of violations, as you were aware of what the court expected of you.
Establishing your knowledge of the existing temporary restraining order requires the prosecutor to retrieve service documents with your signature. Since the temporary restraining order applicant must retain a copy of the restraining order containing your signature, they can present it to the prosecutor for use as evidence against you.
Additionally, the prosecutor can call on a court service employee to testify about serving you the temporary restraining order, justify the claim, and provide knowledge. Evidence may be through written or oral testimony, and the judge will assess the validity of claims by confirming details against formal court documents.
You Were Capable of Following the Restraining Orders
Further, the prosecutor should demonstrate that you could follow the terms of your restraining order but failed to do so. Showing this element is necessary because it prevents you from raising defenses related to your inability to adhere to the guidelines.
For example, the prosecutor can retrieve evidential sources that show you looking for alternative housing after the judge orders you out of your home. If they can demonstrate your access to information and resources to help you adhere to the temporary restraining order, the prosecutor may have a brief restraining order violation case. Nevertheless, your criminal attorney can help you challenge the accusations.
You Knowingly Violated the Terms of the Order
A temporary restraining order violation case requires the prosecutor to demonstrate that you knowingly violated the restrictions. Doing so is necessary because it proves your criminal intention to overlook the court directives and continue to expose the applicant to harm.
Proving that you knowingly violated the temporary restraining order is not always straightforward, as it requires the prosecutor to show your mental understanding. As a result, the prosecution team is more likely to rely on circumstantial evidence to reveal that you were aware of the restrictions you should have followed.
For example, if the prosecutor has evidence that you deliberately hid from the applicant, they may argue that you hid because you knew of the existing restrictions. Similarly, you may have created pseudo-accounts online to hide your identity as you stalked the victim. If so, the prosecutor can demonstrate your knowledge of the restriction and request that the court find you guilty.
The Consequences of Violating a Temporary Restraining Order
If the court finds you guilty of violating a temporary restraining order, you are answerable for a misdemeanor offense attracting up to one year in county jail or paying a fine of up to $1000. Alternatively, you may face a felony charge as a repeat offender or if you caused serious harm to the applicant. You are thus at risk of spending up to three years in state prison or making a fine payment of up to $10,000.
Defenses for Violating a Temporary Restraining Order
Although the prosecutor may present a solid case for a temporary restraining order violation, you can counter their position by raising defenses. Your criminal attorney will help you prepare the counterarguments ahead of trial, and you can consider the following defenses:
- You were unaware of an issued temporary restraining order.
- The temporary restraining order violation was unintentional.
- You face false accusations.
- Your case involves a mistaken identity.
Contact a Criminal Defense Attorney Near Me
Receiving a temporary restraining order for alleged domestic violence is limiting, as you are unable to contact your loved ones for a specific duration. The restraining order also puts you at risk of additional criminal liabilities, making it essential to understand the terms and follow them. If you receive a temporary restraining order for the first time, you need to contact a criminal attorney to help you assess the nature of the claim. In doing so, you are better positioned to determine the most suitable course of action, including whether to challenge the restraining order.
At California Criminal Lawyer Group, we aim to provide quality legal services tailored to your needs. Our team has handled multiple temporary restraining order cases, and we are experienced in helping you understand the terms and raise defenses for a violation accusation. You can count on us to respond to your concerns and represent you in court if you face allegations of breaching a restraining order. If you or a loved one requires legal guidance after receiving a temporary restraining order in Bakersfield, California, call us today at 661-750-8230.
