Orange County Restraining Order Defense Attorney
Under California law, judges may prohibit or restrain certain conduct through the use of injunctions. An injunction is an order from the court that is legally binding. If you break the rules of an injunction, you can be fined or even put in jail. Restraining orders are one type of injunction, and they are most often used to keep certain individuals away from accusers or victims.
Anyone facing a restraining order or who has been accused of violating such an order would be well advised to seek out information regarding his or her rights and options. Once a restraining order is entered, you can face criminal charges if the other person accuses you of violating the terms of the order. If a permanent order is issued instead of a temporary order, it will show up on background checks and you won't be allowed to possess a firearm.
But your case is not hopeless. Orange County courts must follow specific procedures when issuing and evaluating restraining orders, and failing to do so can make the order invalid. If you or someone you love has been served a restraining order, contact the experienced Orange County harassment defense lawyers of Law Office of Michael L. Guisti. Our legal team can review your case, explain your rights, and work to have the order dismissed. Call our office at (714) 530-9690 or toll-free at (888) 478-8999 to better understand the laws and how they could affect you.
Restraining orders, or Civil Harassment Orders (CHO), can prevent individuals from contacting or even going near the person who requested the order. There are several different types that can be issued in California:
- Domestic Violence Restraining Order (DVRO): DVROs apply only to situations where the victim is in danger of being harmed by a family member, spouse, intimate partner, or parent.
- Civil Harassment Order (CHO): CHOs are general restraining orders that apply to situations where a victim is in danger, or fears they are in danger, of being harmed or harassed by someone whom they are not related to or having an intimate relationship with – essentially, any situation where a DVRO wouldn’t apply. CHOs can apply to neighbors, friends, roommates, and acquaintances.
- Emergency Protective Orders (EPO): EPOs can be issued by law enforcement officers if they suspect that a person is in immediate danger of being harmed by someone else, often in cases involving stalking. EPOs can be issued after a police officer investigates a report of stalking or domestic violence, but they must be approved by a judge. Orange County has judges available 24 hours a day to approve these orders, which last for seven calendar days or five business days at the judge’s discretion. During this time, the victim can request a temporary or permanent restraining order for a longer period.
- Elder or Dependent Adult Restraining Order: Elder or dependent adult restraining orders are special restraining orders that provide protection for individuals older than 65 or dependent adults between the ages of 18 and 64 years old.
- Temporary Restraining Order (TRO): TROs are restraining orders that victims can request from a judge when they visit a courthouse. These orders can be approved without a hearing, and the alleged harasser does not have to be present for the meeting. These orders last for 20 to 25 days or until a court hearing where the defendant can present their side of the case.
- Permanent Restraining Order (PRO): PROs are issued by judges after court hearings regarding abuse and harassment. These orders are not permanent, however, and typically last five years and act as an extension on a normal TRO.
- Criminal Protective Orders (CPO): CPOs are issued by district attorneys during criminal trials involving violent crimes or sexual assault in order to protect victims. These orders will last until the end of the trial but can be extended to three years if a defendant is found guilty.
Restraining orders are most often issued by a court following an incident of abuse, threat, harassment, or assault. However, individuals sometimes face unfair and unnecessary punishments for allegedly violating the terms of their restraining order.
The law tends to side with the person who claims to be the victim of harassment or abuse. For example, in an alleged domestic abuse case, the court will enter a temporary restraining order even before there is a hearing or the person who's been issued the restraining order has a chance to tell their side of the story.
Restraining orders can be issued in cases involving:
- Sexual Assault
- Domestic Violence
- Assault and Battery
- Criminal Threats
- Elder Abuse
- Workplace Violence
An Orange County judge will have to conduct a formal hearing if a permanent order becomes necessary. Anyone facing a permanent restraining order in Orange County will receive a notice within about a week, so there isn't much time to prepare.
The law is clear: anyone subject to a restraining order must not come into contact with the alleged victim while the order is in effect. This includes phone calls, text messages, emails, social media messages, or coming within a certain distance of the alleged victim. The only scenario where you can be near the alleged victim is during certain court appearances.
If you violate the terms of the order, then you can be charged with misdemeanor California Penal Code Section 273.6 and can be punished with:
- Up to one year in county jail; and/or
- A maximum fine of $1,000.
If your violation involved a physical injury to the victim or their family, then you can face the following penalties:
- Between 30 days and one year in county jail; and/or
- A maximum fine of $2,000.
Violating an order a second time in one year can also result in misdemeanor or felony charges. Misdemeanor charges include between six months and one year in county jail and/or a maximum $2,000 fine, but felony charges can result in:
- Up to three years in state prison; and/or
- A maximum fine of $10,000.
Here are a few steps you can take if someone files a restraining order against you:
- Obey the order. Even if you disagree with the restraining order, you must obey the terms or face criminal charges. You will more than likely have to avoid making contact with the person who asked for the restraining order.
- Gather evidence. Begin collecting physical evidence that may relate to any incidents or events referred to in the restraining order. You will want photos, clothing, and objects related to the incident.
- Collect documentation. Proving where you were at the time of the alleged incident can help your case, so you may need emails, phone records, and other proof of where you were and what you were doing at the time of the alleged incident.
- Get a list of witnesses. Write down everyone you can think of who may have witnessed or heard the incident.
This type of information can prove useful if false accusations have been made against you. For example, if the other person claims you repeatedly sent them text messages or called, phone records can prove that you were not harassing him or her.
If you do unwittingly violate a restraining order, contact an attorney immediately. At Law Office of Michael L. Guisti, we can immediately advocate for your best interests. Oftentimes, these violations are due to simple mistakes. Common defenses our firm can use on your behalf include:
- You had no intention of violating the order, and you bumped into the alleged victim by accident.
- You were not aware of the order because it was never served to you.
- You did not willingly violate the order, such as by being a passenger on a bus at the same time as the alleged victim.
- It is a case of mistaken identity and the alleged victim mistook another person for you.
Restraining orders usually last until the order has expired, but there are ways to remove the order early. First, the victim must petition the court to cancel the order. If the victim is unwilling, then a judge may cancel a temporary order in a court hearing if your attorney can show that it was illegally issued or that the alleged victim does not have a strong case. Your attorney can also argue that the order was not properly issued to you. For permanent orders, it may be possible to have your case overturned if your attorney can have the original charges overturned in an appeal, such as by demonstrating that the victim was making false accusations.
If you believe that the restraining order is unfair or that you have been wrongfully accused of violating a restraining order, you need an experienced Orange County criminal defense attorney on your side.
If the judge determines you violated your restraining order, you could be facing jail time and costly fines. The Irvine criminal defense attorneys at Law Office of Michael L. Guisti are experienced in defending individuals accused of violating restraining orders. Please call us at (714) 530-9690 or toll-free at (888) 478-8999 for a free and comprehensive consultation.
Whether you're facing a felony or a misdemeanor, don't risk a conviction. Act quickly to redeem your reputation and protect your record by consulting with our Orange County criminal defense lawyer. Call today to schedule your free consultation.