Restraining Order Defense Attorney Los Angeles
To fight a Restraining Order, you need an aggressive criminal lawyer. If you have been served with a restraining order (RO), it’s extremely important to contact a lawyer immediately. This is because whatever you are about to say in the upcoming court hearing on the restraining order could be used against you if criminal charges are filed later. An experienced criminal lawyer can protect you from this adverse consequence by properly advising you of your rights.
There are two types of restraining order. Domestic Violence RO and Civil Harassment RO.
Domestic Violence Restraining Orders
A domestic violence (DV) restraining order is based on the relationship between the parties. For example being married or living together or having children together. They are usually filed by individuals closely related such as parents and children, brothers and sisters, grandmothers and nieces, grandfathers and in-laws.
Civil Harassment Restraining Orders
Here there is no relationship between the parties. California Code of Civil Procedure 527.6 controls the requirements for seeking a civil harassment RO. When seeking a CH RO, the protected persons claim they were threatened or harassed when the respondent engaged in violent conduct or a course of conduct that was designed to annoy the petitioner. CH RO’s are usually filed by co-workers, neighbors, customers and store oweners, etc.
Difference between a Restraining Order and a Protective Order
Domestic violence incidents
When a report of a domestic violence is made by calling 911, officers respond to the location to inquire and investigate. If the officers determine that there is in fact a case of domestic violence, they may arrange for an “Emergency Protective Order” or an EPO. This, again, is in the criminal context. EPO’s are issued based on the authority of California Family code section 6250 and 6251 which allow a police officer to immediately request and issue an emergency PO if the officer reasonably believes that the victim is in immediate danger of harm due to domestic violence by the suspect. EPO is distinguished from a “Temporary Restraining Order” or a TRO which is a temporary order issued in civil courts after a short ex-parte hearing. EPO’s are normally issued by the police officers at the time they make an arrest for a violent crime. TRO’s are issued by judges in court. An EPO usually has a time limit of 7 days. It cannot be violated by the arrestee for its duration pending the upcoming arraignment in the criminal matter.
In California, if criminal charges are filed against a defendant for a violent crime such as robbery, burglary, assault, battery, etc., as part of the criminal process and very early in the process, the criminal court judge will automatically issue a “Protective Order” (PO) and will have it served on the defendant in open court by the bailiff. Note the terminology used in the criminal context. In a civil context, we have restraining orders and in the criminal process, we have protective orders or “Stay-Away” orders. Criminal court judges issue PO’s for the protection of the alleged victims in the crime while the case is pending and is being prosecuted. This PO is usually issued at the time of arraignment. It’s automatic in most instances with some exceptions and limitations that your lawyer may comment on in court. If the defendant pleads guilty or is found guilty by the jury in the criminal case, the PO may remain in effect for 3-5 years. Once a PO is issued and served, the defendant must abide by the terms of the PO or he could be charged with an additional crime of violation of the protective order pursuant to California Penal Code 273.6.
Conduct that may be ground for a Restraining Order
– Acts of violence such as assault, battery and stalking. To establish abuse, the petitioner may show physical abuse such as pushing, shoving, kicking, or pulling hair. But abuse could also be shown by stalking or making annoying phone calls, or threatening to use force or violence.
– Criminal threats to use violence. For instance, telling someone that “I am going to kill you, or your son is dead. Just watch out.” This will put someone or their family in fear for their own life or the life of their family.
Temporary Restraining Order Process
You may file a request for a CH RO or DV RO on your own behalf or on behalf of your child under the age of 12. If your children are more than 12 years old, they may file for a RO on their own behalf. The process of getting a RO against someone starts by the aggrieved party by filing a petition for domestic violence restraining order or a civil harassment restraining order using California judicial council form DV-100 or CH-100.
The court will then have a short ex-parte hearing in the presence of the petitioner and if presented with sufficient evidence by the petitioner, will issue a “Temporary Restraining Order” or a TRO. This order or TRO will have to be served on the respondent to give him proper notice of the next hearing date. On that date, the court will decide whether the TRO should become a permanent RO. The notice will also explain your rights and provide instructions as to how to respond to the RO request.
Responding to a Restraining Order
You must prepare to reply to the RO request. There are time limits. So, it is best to contact an experienced restraining order criminal defense attorney in Los Angeles and have him prepare your response. Our office handles this process and will serve the response on the petitioner. Hiring a lawyer will also help you avoid any unnecessary contact with the petitioner which could lead to violation of the order and potential criminal charges and jail time.
To respond to a domestic violence RO, you need to use form DV-120 for DV cases or CH-120 for CH cases. All forms that are filed with the court must also be properly and legally served on the opposing party. Be sure to avoid any falsification of documents or making false statements. All your statements are being filed with the court under penalty of perjury and could potentially subject you to criminal prosecution. Talk to an attorney if you are not sure how to fill out the forms or write your statements supporting your defense. It is sometimes best to say less than more. Your attorney may also advise you not to respond to the RO as the best strategy. This is because there is a danger or likelihood that you may incriminate yourself by your own words in the papers you submit to the court. Be extremely cautious and definitely consider having an experienced RO attorney in Los Angeles represent you. Once you have prepared your DV-120 or CH-120 reply forms, you need to serve them on the petitioner.
Effect of TRO
TRO protects the petitioner until a full hearing is held and the court decides whether to issue a full protective order. If the TRO is properly served on you, you must stop all contact with the petitioner immediately. This includes emails, text messages, phone calls, in-person communications, and sending messages using social media platforms or trying to contact the petitioner via a third party. You must also dispose of, turn in, or legally store any firearms you may have within 48 hours of being served with the TRO.
Restraining Order Hearings
The purpose of this hearing is for the court to decide whether to make the “temporary” RO a “permanent” RO. While TRO’s last for a short period of 20-25 days, full DV RO’s generally last for 5 years and CH RO’s for 3 years. Prior to the hearing our office will speak with you and go over the facts of the case thoroughly and prepare for the upcoming court hearing. We have been very successful in resolving disputes between parties even before going to court. Prior to going to court, we will prepare you and line up our evidence and witnesses. We will talk to and obtain statements from all witnesses. We will also put together all documents and records that we plan to use in your favor at the court hearing.
Our extensive preparation and readiness for the court hearing will help you tremendously and will increase your chances of beating the case.
If you go to court on your own, chances are you won’t know how to defend yourself. You may have incomplete understanding of the law. You may say things that may actually hurt your case. You may even get yourself in more trouble by making incriminating statements. Since everything in the court hearing is recorded, your statements could later be used against you. The entire documents, evidence, and your statements may later be used by the prosecutor to file domestic violence charges or other charges such as battery, false imprisonment, stalking, making annoying phone calls, and child abuse. This could potentially lead to a disaster for you.
Recency of the Events Complained of
Petitioner must allege and show violence or threat of harm baed on recent events. The events relating to domestic violence or civil harassment cannot be old incidents. The fact that someone was stalked 3 years ago, for example, can’t be used to seek a RO. The alleged victim or person must be in “immediate danger” requiring the court to prevent further imminent harm. The time frame is usually 60 days although there is no hard and fast rule. The court is free to consider the reasons why the petitioner waited longer than usual to seek a RO. Time requirement, however, is a powerful way of defending restraining orders in Los Angeles county courts. We have been able to challenge restraining orders on behalf of our clients on this ground alone.
Standards of Proof for Restraining Orders
The petitioner or the person who is requesting a RO must prove by “clear and convincing” evidence that what she or he is claiming is true. This means the petitioners can’t just say that there is a danger to them. They must prove it by showing that it is highly probable that they are harmed or they are in grave danger if the RO is not issued. This is referred to as the “burden of proof” for the court to decide whether to issue the restraining order or not. If the evidence presented by the petitioner is not sufficient, the RO could be denied.
Standard of proof is important in RO cases, because the person asking for RO must show that the unlawful violent act either caused great harm, substantial emotional distress, or irreparable injury or that great harm would result if an order is not issued. Therefore, it is important to know that the court doesn’t have to find that the injury in fact occurred. Evidence that it may occur in the near future is sufficient to meet the burden of proof for the court to issue the RO.
Legal Grounds for Granting a Restraining Order
The petitioner must prove a “credible threat of violence”. This means the protected party must show that a reasonable person confronted by the acts complained of would be afraid for their safety or the safety of their family.
If the petitioner’s fear is not reasonable, the court is likely to deny the restraining order. For instance if you passed by your ex-wife’s house a couple of times in two weeks, she can’t go and ask for a RO claiming that she was injured or harmed. That is not reasonable. But if she saw you on one occasion looking through her bedroom and you were carrying a gun, there may be evidence of fear for her life or her family’s life. The petitioner must show that the conduct complained of was not permitted by law and had no legitimate purpose. The petitioners must also show some degree of harm to them. Actual injury is obviously sufficient, but evidence of some harm such as emotional distress is required. It must also be shown that the emotional distress complained of is reasonable. For instance if your coworker calls you a bitch, you can’t go seek two months of psychiatric therapy and then try to get a RO. That would be unreasonable. But if that same colleague sends you 20 text messages within 2 days and says he doesn’t want you in the company and he won’t leave you alone, will continue to call you and send you messages, and will make your life miserable unless you quit your job, you may have grounds for being stressed out and asking for a RO.
Who May be Protected?
The petitioner may add as protected persons the names of other individuals that need protection. Those individuals don’t necessarily have to have been the subject of prior harm. For instance, if you fired a gun at a moving vehicle carrying the petitioner and her children, then all her children could be named as protected persons, even if one of them wasn’t in the vehicle at the time.
Violation of Restraining Order
If you fail to abide by the terms of a RO, under California Penal Code 273.6 , you could be charged with misdemeanor violation of the terms or conditions of a RO, a PO, or a stay-away order. If convicted, you could receive up to 1 year in county jail.
Importance of Having an Attorney on Your Side
So, be smart. Have a strong, caring TRO and Restraining Order criminal attorney on your side along the way and be sure that you will be happy with your decision later.
