Suppose you're facing criminal accusations in California, especially in matters related to domestic violence, harassment, stalking, etc. In that case, you may also be served with a civil restraining order, which can be issued at the request of an alleged victim.
The civil restraining order process is separate from the criminal justice system, but it often overlaps with criminal proceedings, especially when criminal charges are involved.
Restraining orders, also called "protective orders," prohibit a specified person, known as the "protected party," from harassment or abuse by another person, known as the "restrained person."
Spouses, ex-girlfriends, ex-boyfriends, cohabitants, family members, roommates, and even coworkers can be protected parties. The comprehensive nature of restraining orders, which can include personal conduct orders, "stay away" orders, and "move out" orders, ensures a wide range of protection.
If a restraining order is issued, a court orders a restrained person to refrain from performing any of the acts described in the order. It's crucial to understand that violation of the order is not just a breach of the law but also grounds for arrest, underscoring the serious implications of such actions.
Personal conduct orders usually prohibit attacking, stalking, or communicating with the protected party. This could include personal forms of contact and social media contact.
"Stay away" orders typically dictate a distance between the protected party and the restrained person, often about 100 yards, but some accommodations can be made. They can also include restrictions on where the restrained person can go, such as to a spouse's home or the restrained person's workplace.
Restraining orders can last up to five years, but three years is more common. Some orders are measured in terms of months.
While being served with such an order is not a criminal charge and won't necessarily appear on your criminal record, it can result in additional charges if you violate it.
Civil Restraining Orders vs. Criminal Protective Orders
Civil restraining orders and criminal protective orders are often confused, but they serve different purposes and originate from different legal processes.
A criminal protective order (CPO) is typically issued as part of a criminal case, often in domestic violence or assault cases, to protect the alleged victim from further harm by the defendant.
The court can issue a CPO without the victim filing a separate petition, as it is part of the criminal proceedings.
By contrast, an alleged victim can seek a civil restraining order even if there is no ongoing criminal case. It is a civil matter initiated through a petition filed by the alleged victim.
The process typically involves filling out a form, providing a written statement detailing the alleged abuse or harassment, and attending a court hearing where the judge will decide whether to issue the order. This type of order is often used in situations involving domestic violence, harassment, stalking, or elder abuse.
What are Common Civil Restraining Orders?
The most common types of civil restraining orders in California include:
- Domestic Violence Restraining Orders (DVROs): Available for individuals who have suffered abuse or threats from someone they have a close relationship with, such as a spouse, partner, or family member. Domestic violence restraining orders are suited for situations where the restrained person and the protected party have or have had some kind of intimate relationship. This includes husbands and wives, ex-spouses, boyfriends, girlfriends, former intimates, and all those who've lived together in intimate relationships. Blood relatives are also eligible.
- Civil Harassment Restraining Orders (CHROs): These are typically used when the parties do not have a close relationship, such as neighbors or acquaintances, and the alleged conduct involves harassment, threats, or stalking. Simply put, civil harassment restraining orders apply where the parties don't have an intimate relationship. Examples include orders that apply to roommates and orders that bind coworkers. Preventing unwanted attention originating from a stranger is another appropriate use of a civil harassment restraining order.
- Elder or Dependent Adult Abuse Restraining Orders: Designed to protect individuals 65 or older or those with disabilities from abuse, neglect, or financial exploitation.
- Workplace Violence Restraining Orders: Filed by an employer on behalf of an employee who has been threatened or harassed at work.
We should note that civil restraining orders can be issued even if the court does not impose a criminal protective order, even if criminal charges are never filed.
This means that an alleged victim can seek protection from the courts regardless of the status of any criminal investigation or case.
A firearms owner will likely have to sell their weapons, store them with police, or otherwise part with their firearms for the duration of a restraining order. The restrained person will likely also be prevented from purchasing firearms for the lifetime of the order.
The Intersection of Civil Restraining Orders and Criminal Charges
While a civil restraining order is not a criminal matter, it frequently intersects with criminal cases. For example, an alleged victim of domestic violence may file a civil restraining order against the accused even before the district attorney files criminal charges.
In some cases, an alleged victim may request both a criminal protective order and a civil restraining order.
Restraining orders require some sort of threatening behavior that has affected the protected party or by which there's reasonable cause to believe the protected party may be affected. Domestic violence orders tend to include showings of emotional, psychological, or physical abuse.
Domestic violence restraining orders are often issued in situations requiring that a restrained person leave the home that they share with the protected party. While the consequences can be negative and broad-ranging, courts are willing to issue orders requiring people to leave their homes.
Restrained persons can be ordered to do everything from attending anger management classes to enrolling in batterers' intervention courses that last 52 weeks. Parenting classes can also be required, if children were involved in the situation leading to the restraining order.
What are the Key Differences Between Civil and Criminal Cases?
One important distinction between civil restraining orders and criminal protective orders is the standard of proof. In a criminal case, the prosecution must prove the defendant's guilt "beyond a reasonable doubt" - the highest standard of proof in the legal system.
In contrast, to obtain a civil restraining order, the petitioner only needs to demonstrate that abuse, harassment, or threats occurred by a "preponderance of the evidence." This lower standard means it's easier for an alleged victim to obtain a civil restraining order than it is to secure a criminal conviction.
What are the Consequences of Violating a Civil Restraining Order?
Violating a civil restraining order in California is a serious offense. If you knowingly disobey the terms of the order, you may be charged with a crime, which could lead to significant legal consequences. Under California Penal Code 273.6 PC, it is a misdemeanor to violate a civil restraining order. The penalties for a misdemeanor violation can include:
- Up to one year in county jail,
- Fines of up to $1,000,
- Probation, and
- Mandatory participation in counseling or anger management programs.
In cases of repeated violations or if the violation involves an act of violence, the offense may be charged as a felony, carrying more severe penalties, including:
- Up to three years in state prison,
- Higher fines, and
- Lengthier probation terms.
How Are Restraining Orders Obtained?
Anyone seeking a restraining order can go to court and fill out paperwork to apply for the order or have an attorney complete the documents.
The initial paperwork requires describing the situation and why it poses a danger. A judge will review the statement and decide whether a Temporary Restraining Order (TRO) should be issued. The restrained person doesn't have to be present for this to happen.
The TRO usually lasts a few weeks. Then, there will be a hearing to decide whether the applicant should get a Permanent Restraining Order, which is limited to five years. Both sides will present evidence to a judge, who will decide whether to issue the restraining order.
Defending Against a Civil Restraining Order and Alleged Violations
If you have been served with a civil restraining order, read it thoroughly and be sure you understand the terms. You must comply to avoid criminal charges.
The terms of the order may include staying a certain distance from the alleged victim, their home, or workplace, avoiding all forms of communication with them, and refraining from specific behaviors.
If you believe the order was issued unjustly or that the allegations against you are false, you have the right to contest the restraining order at a court hearing before it is finalized. An attorney can help you present evidence and witnesses to support your defense.
Our certified specialists are available 24/7 to take your call and offer a free, immediate response. The Eisner Gorin law firm offers paid office consultations to compensate for time spent on criminal defense strategy fairly.
The office consultation retainer will depend on the time spent and the seriousness of the allegations. Our California criminal defense lawyers are located in Los Angeles.
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