In some cases, a California court may determine that it is necessary to prevent one individual from having any contact with another. In these situations, the court can issue what is known as a protective order. Also known as restraining orders, these orders apply significant legal consequences if a person violates their terms.
The consequences that can come with violating a restraining order are serious. Like with any case, you retain the right to defend yourself against an alleged violation. With the right defense, you could establish that you did not violate a restraining order and should not face any consequences. Attorney Vitaly Sigal has extensive experience taking on protective order cases in the Los Angeles area and prevailing. Call right away to discuss your options.
What is a Protection Order?
There are three types of protective orders under California law. These include emergency protective orders, temporary restraining orders, and permanent restraining orders.
Emergency Protective Order
An emergency protective order, or EPO, is authorized under California Family Code Section 6250. According to the statute, a law enforcement officer can seek an EPO if they have a reasonable belief that a person is in immediate danger of domestic violence. The courts are required to have judges available around the clock to issue these orders when necessary.
To be valid, the EPO must be issued by a judge or commissioner. There are factors that must be established before an EPO may be issued. They include any of the following:
- That a person is in immediate and present danger of domestic violence, based on the person's allegation of a recent incident of abuse or threat of abuse by the person against whom the order is sought.
- That a child is in immediate and present danger of abuse by a family or household member, based on an allegation of a recent incident of abuse or threat of abuse by the family or household member.
- That a child is in immediate and present danger of being abducted by a parent or relative, based on a reasonable belief that a person has an intent to abduct the child or flee with the child from the jurisdiction or based on an allegation of a recent threat to abduct the child or flee with the child from the jurisdiction.
- That an elder or dependent adult is in immediate and present danger of abuse.
Temporary Restraining Order
A temporary restraining order, or TRO, is issued upon the discretion of a judge. When the judge in a domestic violence case believes a person is in immediate danger of violence, they can issue a temporary order even though the domestic violence case has not yet been decided. These orders typically last between 20 and 25 days. At the end of this period, the restraining order expires unless a permanent order is entered.
Permanent Restraining Order
After the TRO is issued, the court will set a hearing to determine if the order should be made permanent. If at the hearing the court determines that the danger of domestic violence is real, the court has the power to make the order permanent. That does not mean the order will last forever, however. In a domestic violence case, these orders will typically last five years from the date they are entered.
It is not enough for a prosecutor to allege that you are in violation of a restraining order. Before you can face the consequences that come with a violation, the prosecutor must first establish a number of elements. These elements include:
- The court issued a lawful protective order
- The defendant had notice of the order
- The defendant had the ability to comply with the court order, and
- The defendant willfully violated the terms of the order
There a few important considerations when it comes to these four elements. First, a defendant will only be held responsible for violating a protective order they are aware of. Because it is possible for the courts to issue an emergency restraining order without providing notice to the defendant first, notice is a crucial element.
Finally, the defendant must have willfully violated a protective order to face legal consequences. Acting willfully means to do so on purpose knowing the potential consequences. This means an accidental or unknowing violation of the terms of the order of protection should not result in a conviction.
Unfortunately, the court cannot read your mind. Even if you had no intention of violating a protective order, the prosecution could make the case that you intended to disobey the terms of the order. Attorney Vitaly Sigal can help you fight back against wrongful accusations of a violation as well as defend you in your underlying domestic violence case.
The violation of a protective order is treated as a misdemeanor in most cases. If convicted, you can expect to face imprisonment of no more than one year in county jail. Additionally, you could also face a maximum fine of $1,000.
There are cases where a violation could result in a felony charge. In California, the violation of a protective order is a “wobbler” if it is the defendant's second conviction for violating a restraining order or if it involved an act of violence A wobbler is an offense that the prosecutor can treat as either a felony or a misdemeanor. If they pursue the case as a misdemeanor, it carries up to three years in prison and a maximum fine of $10,000.
The strongest defenses against an allegation that you violated a protective order come from the specific language of the elements of the offense. In particular, these defenses include:
- The protective order was not lawful
- You did not have notice of the order at the time
- You did not willfully violate the order
Fight Back with the Help of a L.A. Defense Attorney
Facing a charge of violating a protective order does not guarantee you will be convicted. To learn how you can fight back, schedule a free consultation with the Sigal Law Group right away.