A permanent restraining order is a legal order issued to protect a victim from offensive conduct or physical harm by the offender. There are so many reasons that can lead to the offender being issued with a permanent restraining order. In California, domestic violence is one of the primary reasons why a permanent restraining order is issued. Domestic violence happens when your or someone you are close to:
- Assaults the other sexually
- Attempts to cause harm or causes physical injury to the victim
- Instills fear in the victim
- Destroys the property belonging to the other person
- Molests or attacks the other
The domestic violence law pertains to either parents, dating relationships, or people who live together or have lived together before.
Violation of restraining order penalties are harsh and can make your rights as a citizen limited. Therefore, you need legal representation from a qualified lawyer to see you through the trial process, to help dismiss your case or drop the charges against you. The Orange County Criminal Lawyer is at your service to defend the case on your behalf. The lawyer will also help you with all the legal procedures required to remove or modify your permanent order.
Types of Restraining Orders
There are different types of a restraining order, depending on how severe your crime is. You can be issued with three types of restraining orders to keep you away from the victim. They are:
- Emergency restraining order
- Temporary restraining order
- Permanent restraining order
If you violate any of the above orders, you are subject to violation penalties either as a felony or a misdemeanor convict. The penalties related to violation of the above restraining orders include imprisonment, serving a jail term, and paying a fine.
Emergency Restraining Order
An emergency restraining order is issued to protect the victim from the offender for a specific time if the victim needs immediate protection. In domestic violence cases, the police officers at the scene of the violence will request a judge to issue you with an emergency restraining order to further prevent you from contacting the victim. An emergency restraining order lasts for seven days. After the seven days, you will then be issued a temporary or permanent restraining order, depending on the victim's necessity. The judge decides to give the permanent restraining order.
Temporary Restraining Order
A temporary restraining order is issued once the emergency restraining order expires. Issuance is done after the victim applies for the order by filling a form, which shows they are still suffering due to your abuse. You will be issued with a temporary restraining order if:
- Your behavior is annoying, and it deserves a restraining order to protect the victim from it
- Your actions cause a threat to the victim
- You are causing emotional distress to the victim
- You are subjecting the victim to harassment
- You are causing the threat of violence to the victim.
What Is A Permanent Restraining Order
A permanent restraining order is a legal order that is only issued by an authorized California judge. It is a severe type of restraining order that has serious consequences. Unlike other restraining orders that you can be issued within California, a domestic violence restraining order is for keeping you off from a person related to you. Therefore, your lawyer needs to involve your lawyer during the hearing and present legal defense to help you evade the harsh penalties.
Before a permanent restraining order is issued to you, there should be a court hearing. The hearing is done for the prosecutor to prove strong evidence to prevent you from contacting the victim. During the hearing, the Court listens to both sides; of the victim and the defendant. The decision is made depending on the physical and emotional harm that you have caused to the victim. If a permanent restraining order is to be issued, some conditions are included in the restraining order. You are supposed to adhere to the requirements for a specified time included in the restraining order. A permanent restraining order for domestic violence can last for five years and can be extended if the Court sees a necessity.
Conditions That Will Make You Receive A Permanent Restraining Order
For California, a judge to issue you with a permanent restraining order must prove that the person who is filing for the restraining order is related. Some of the condition that is considered before the order issuance is:
- You must have threatened or abused the victim
- The person who wants a permanent restraining order must have a particular form of a close relationship with you. Close relationship meaning the person can be a spouse or partner, divorced partner, a close relative. It also includes a person you have a child together, a cohabitant, boyfriend or girlfriend
If you meet the above conditions, the judge will issue you with a permanent restraining order to prevent you from harming the victim.
Permanent Restraining Order Common Restrictions:
Some of the restrictions that are outlined in the permanent restraining order include:
- Payment of the victim's fee for the attorney
- Paying restitution to the victim
- Staying away from the victim or any other party included in the order as a protected party
- No contacting the victim in any way
- Relinquishing any firearm that you own or possess
- A prohibition from possessing or purchasing any firearms.
- A conviction for the Violation of a Restraining Order
For you to be convicted for violating a restraining order, the prosecutor must prove that:
You Had the Knowledge That the Order Existed
A permanent restraining order can be served, or the Court can state it orally to you in Court. The terms outlined in the restraining order. A restraining order can also be served by the police officer orally by explaining the order's terms. Prove of service is, however, not required.
The Permanent Restraining Order was Issued to you Legally by the Court.
Not all restraining or protective orders are valid. For this reason, the prosecutor must prove that the order issued to you is legal. The prosecutor must also prove that the Court that issued you with the restraining order had the mandate to do sea. The last element that the prosecutor must prove is that there was a legal basis for it to issue you the permanent restraining order.
You Willfully and Intentionally Violated One of the Conditions Stated in the Restraining Order
The prosecutor must prove that you intentionally violated the order for you to be convicted. If a permanent restraining order is issued to you, you will not intend to act against the terms provided in the order because you are well aware of the harsh penalties that come with the order violation.
Involving a lawyer in your case will be important because the lawyer will fight for your violation charges, and you will be set free. That would be the case if you did not violate the law intentionally.
Penalties for Violating A Restraining Order
It is a wobbler offense to violate a permanent restraining order law. It, therefore, means that the crime can be charged as a felony or misdemeanor. The violation is a felony if it's your second-time conviction for the same, and if during the offense, you were involved in a violent act. The charge's penalties will depend on how severe the charges are and if you had prior criminal charges.
If charged as a misdemeanor, you serve a jail term of up to one year in the county jail. You will also pay a fine not exceeding $1,000.
If the violation is charged as a felony, you will be punished by being imprisoned for a maximum of three years in the state prison and payment of a fine not exceeding $10,000. The above charges are severe, and you should contact your attorney to defend your case.
Restraining Order Violation and Gun Rights.
If you have been charged for violating a restraining order, you are restricted from owning or possessing a gun at any given time. If you already possess or own one, you should return it to the law or any other law enforcement officer or a licensed firearm dealer. If you retain a gun and are aware of a restraining order, the offense is considered a wobbler. If found with a weapon and charged as a felony offense, you face imprisonment for up to three years in the state prison.
Legal Defenses to Violation of Permanent Restraining Order
False Allegations Against You
False allegations are common in most of the cases in California. You may have custody of your child, and your partner did not like the child custody decision. Your partner or any other person related to you may falsely accuse you of getting revenge on you to ensure you get the child back. If you have been accused falsely by the victim, you must involve your lawyer to represent you and prove that you did not violate any terms stated in the restraining order.
The Permanent Restraining Order was Not Issued Legally
For the prosecutor to convict you for violating the restraining order, they must prove that the order was issued through the legal way. Having a lawyer with you will help dismiss the case against you because they will confirm that the order was not issued according to the law. For example, the order may be issued by a court that did not have the mandate to do so. Or the terms stated in the order were not clear. If your lawyer proves the restraining order is invalid, then you will have the charges against you reduced, or the case against you dismissed.
Lack of Knowledge that the Restraining Order Existed
A victim may file a case against you for violating a restraining order that you are not aware that it existed. The Court cannot convict you if you did not know that the order existed, and the prosecutor, therefore, has to prove that you were aware of the order. Your lawyer can argue your case by arguing that the restraining order was served erroneously and that you should not be punished for the violation.
You Did Not Have the Intention to Violate the Restraining Order Terms and Conditions
The prosecutor must prove that you intentionally violated the terms in the restraining order for you to be convicted. A case where you may accidentally violate the restraining order condition is where you may visit a place, not knowing that the victim is in the same place. In that case, your attorney will prove your innocence by arguing that the violation was accidental because you were not aware that the victim could be found in the same place that you visited.
You Did Not use the Ability to Follow the Restraining Order.
The Court can issue you with a permanent restraining order with conditions that are difficult to follow. For example, using a particular road that the victim uses daily. The condition may be challenging for you to follow if you also use the same route to work. In case you are charged for violating the rule, your lawyer will present the evidence that you cannot avoid using the road because it is the only way and that it was also the only route to the victim’s place of work. The case against you can therefore be dismissed, or the charges against you reduced.
Expungement of Your Record After Violating a Permanent Restraining Order
Expungement is a process that is meant to clear your criminal records from the public database. You would be eligible for expungement of your criminal record if no imprisonment penalty were imposed on you. Although your criminal records can be revoked from the public database, they are maintained in the Federal Bureau of Investigation and other forms of a database not accessible by the public.
- Having your criminal records expunged, you can have your freedom once again because you can quickly secure a job, get a residential home, and regain your right to vote in elections. You do not need to disclose your criminal convictions to anyone once they are expunged. There are though some few cases where you will need to disclose your criminal records:
- When you are applying for a contract or a license with the State Lottery Commission
- When running for elected office and
- When applying for a public sector vacancy or any professional license.
For your criminal records to be expunged, there are some conditions that you must meet. They are:
- You did not violate the terms and conditions that were stated in the permanent restraining order.
- During the time of serving your sentence, you did not commit another crime.
- You strictly followed the guidelines outlined in the restraining order and
- You did not serve any jail term sentence because of a crime that you committed.
However, violation of probation does not disqualify you from having your criminal record expunged as long as the offense was not charged as a felony. Before the Court decides to have your criminal records expunged, the Court reviews your criminal record and any need for your record expungement to enable you to support your family or even secure a job for the sake of your family.
Offenses Related to Domestic Violence That May Lead to You Being Issued A Permanent Restraining Order
Stalking as a Domestic Violence Related Offense
Stalking can be direct or indirect, depending on the type of action you are doing. Direct stalking is where you show up in the area of work of the victim or any other place you are well aware that the victim is found regularly. Indirect contact happens when you send messages to the victim, sending them gifts, making phone calls, and posting messages on social media accounts. Indirect contact also occurs when you engage in pestering, threatening, or annoying behavior meant to make the victim fear for her safety.
Stalking is a wobbler crime that can be charged as a misdemeanor or felony, depending on your previous convictions.
If convicted as a misdemeanor, you face penalties to serve a jail term of one year and payment of a fine of up to $1000.If charged as a felony, You face a jail sentence up to three years in the state prison and payment of a fine of $10,000.If you do stalking when a permanent restraining order is issued against you, you are charged for a felony offense where your imprisonment period goes up to four years in the state prison.
If you have prior convictions for violating a permanent restraining order issued to you or any other restraining order, your imprisonment period will increase up to five years.
A criminal threat is whereby you pose a threat to harm the victim, and you make the victim fear that you are indeed going to cause them harm. The criminal threat is charged as a wobbler offense. If charged as a felony, you face an imprisonment penalty for three years, and strikes will also be imposed on your record. To avoid the severe penalties, you need to consult your criminal lawyer to help reduce your penalties.
Elderly abuse happens when you neglect and cause financial, physical, or emotional exploitation to anyone above 65. Elderly abuse is a wobbler offense that is charged either as a misdemeanor or a felony. If charged as a misdemeanor, you are subject to serving a jail term of up to one year in the county jail and paying a fine not exceeding 41000. If charged as a felony, the consequences are more severe, with imprisonment of up to four years in the state prison.
Vandalism Crime as Related to Domestic Violence
You can violate your permanent restraining order by destroying or damaging the property belonging to the victim. Vandalism can be charged as a felony, misdemeanor, or an infraction depending on your criminal records and the value of goods you have destroyed.
Getting A Probation after Violating A Restraining Order
You are eligible for probation if you have violated a restraining order. There are some strict terms that you should follow. They include:
- Performing a community service
- Reimbursing any expense that you caused to the victim
- Making frequent visits to your probation officer
- Undergoing counseling sessions
Failure to comply with the above conditions will make your probation be revoked and be sentenced according to the law.
Lifting of A Restraining order
A permanent restraining order can be lifted, although the process is challenging. It requires a professional who understands the law well for the lifting to be effected. Lifting of a permanent restraining order is possible because the enforcement is usually for a specific period and not forever.
You have a right to file for the order against you to be lifted. For your plea to be considered, you should provide evidence that you have done your best to change your life to the better part. You can do so by providing a certificate to show that you have completed a counseling course. You should also provide proof that you have undergone a rehabilitation process. If there is a need to lift the restraining order against you, the victim will be notified if the domestic violence case involved the children.
Find a Criminal Lawyer Near Me
If the police arrest you for violating a permanent restraining order, you can be sure that the consequences are harsh and will massively affect your life. To avoid severe penalties, it is essential to consult your lawyer to guide you through the trial process. The lawyer will defend your case and may possibly be able to attain a dismissal, or reduce your charges. If you are charged for violating a permanent restraining order in Orange County, California, consult the Orange County Criminal Lawyer to help you develop a strong defense. All our attorneys are qualified and have successfully defended restraining order violation cases. Contact us at 714-262-4833 for legal representation for your restraining order violation case.
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