Temporary Restraining Order

Also known as protective orders, restraining orders are common, especially in domestic violence cases. You do not need to have been convicted of a domestic violence offense to have a restraining order against you. The victim only needs to prove that your words or actions are a threat to them to have the order enforced. In a domestic violence lawsuit, a restraining order restricts the defendant from coming close to the victim, whether at home or the workplace.

Restraining orders outline how you must behave, how far you must stay from the alleged victim, and whether you must leave your home. For example, if you are under a temporary restraining order, you could have restrictions that prevent you from visiting the victim’s workplace, emailing, calling, or texting the victim. In addition, a temporary restraining order will likely require you to move out of the home you share with the individual protected by the order. If you receive a notice of a temporary restraining order, the Long Beach Criminal Attorney can assist you in creating the best defense to challenge the order.

Temporary Restraining Order Explained

There are several temporary restraining orders, including the following:

  • Civil harassment restraining order.
  • Domestic violence restraining order.
  • Criminal ‘’no contact’’ order.
  • Emergency restraining order.

Civil Harassment Temporary Restraining Order

Generally, harassment happens when you knowingly threaten, abuse, or cause emotional distress to another person. Under California law, threats, abuse, and causing emotional distress to another person qualify as civil harassment. Threats mainly involve verbally stating that you will cause harm to someone, be it emotionally or physically. Abuse means that physical contact with the victim has already happened. For example, you could face abuse charges if you sexually assault another person. Emotional distress involves causing another person to develop a profound fear for their safety or that of their loved ones.

A victim of civil harassment can apply for a restraining order once a pattern of harassment has been established. This is a court directive ordering you to stop the actions that you were doing that made the restraining order necessary. The victim must secure restraining order forms, fill them out, and file them with the court. The court will then set a restraining order hearing. After the hearing, the judge will issue the order if he/she feels the case is valid, and the local law enforcement will serve you with the notice. The order will only be active after you have been served and you know you are under a restraining order.

Civil harassment generally does not apply to a victim’s spouse, former spouse, or immediate family members. It does not apply to a person that the victim shares children with or stays with. Civil harassment applies to the victim’s distant relatives, strangers, co-workers, or friends.

A civil harassment order will give you several requirements that you must adhere to. For example, it could state that you must move some distance away from the victim’s workplace or home. It could also demand that you stop calling, sending emails, or texting the victim. In addition, you could be under a civil harassment order for a period not exceeding five years from the court date or restraining order hearing date.

It is a crime under California Penal Code 273.6 PC to violate the terms of a civil harassment restraining order. When the prosecutor accuses you of violating Penal Code 273.6 PC, this statute requires that the prosecutor prove the following elements:

  • The court legally issued a restraining order against you.
  • You were aware of the restraining order.
  • You did not adhere to the terms of the restraining order.
  • You violated the restraining order on purpose.

Prosecutors usually prosecute a violation of a civil harassment order as a misdemeanor. You could therefore face the following penalties if you are found guilty of the crime:

  • A fine that does not exceed $1000.
  • A jail term that does not exceed one year in a county jail.

The prosecutor will prosecute a violation of a civil harassment order as a wobbler if:

  • It is your second charge of a restraining order violation.
  • You violated the restraining order with an act of violence.

In this case, the prosecutor could assign misdemeanor or felony charges. If the crime is a felony, you could face the following penalties:

  • A fine that does not exceed $10,000.
  • A jail term that does not exceed three years in a state prison.

Domestic Violence Temporary Restraining Order (DVTRO)

Under California law, individuals facing the danger of abuse or violence from a family member can file a temporary domestic violence order with the court. The order could also apply to current and former spouses. The law has expanded the meaning of domestic violence to include abuse between individuals beyond traditional families, like:

  • Individuals who were or are in a serious dating relationship.
  • Individuals who stay in the same house but are not a couple or related.
  • Individuals who sired a child together without being married.
  • Individuals who stayed together without being married.

This order is meant to stop the abuse and protect the victim. These orders go by different names, including:

  • Orders of protection.
  • Injunction for protection against domestic violence.
  • Family violence protective orders.

The judge could issue a DVTRO if the case appears urgent. This order will take effect immediately after the victim reports the alleged abuse.

A victim of domestic violence can apply for this order directly with the court clerk, particularly the Family Court. The victim is required to fill out the application form. The victim will have to give details like:

  • When you threatened them.
  • When you hurt them.
  • The specific order the victim is requesting.

The victim can also call 911 if he/she is in immediate danger. Once the police arrive, they could call the judge and request a restraining order against you. On the other hand, the victim could go to court once they arrest you. If you threaten the victim over the phone, the victim could call the police and request a temporary restraining order even if the courts are closed.

Typically, the police will investigate your abuse allegations and contact the judge to request a DVTRO. The judge could talk to the victim to determine whether to grant the request. The judge will issue a DVTRO against you if he/she discovers that the victim faces a clear and present danger.

Criminal ‘’No Contact’’ Order

A criminal no-contact order is issued by the court to protect individuals who are vulnerable to potential intimidation, threats, or abuse. This order is specifically used in criminal courts to protect victims and witnesses of the offense. A temporary criminal order is divided into two parts:

  • Criminal protective order — Domestic Violence (CR-160), which applies to victims of domestic violence.
  • Protective order — Restraining orders other than domestic violence (CR-161) apply to witnesses and victims who require the court’s protection.

The judge could impose the no-contact order on you for the following reasons:

  • Suppose you harm the victim in any way, including most forms of abuse like physical and sexual abuse — The judge usually issues criminal restraining orders in cases of battery and assault, as well as domestic violence. The presiding judge will usually automatically issue this order before the first hearing. The judges always do so because of the violent nature of the offenses and the likelihood of you attacking and injuring the victim.
  • If you make the victim develop significant fear — In most cases, it could include certain forms of emotional abuse. For example, you issue significant felony threats to make the victim fear for their life and the safety of their loved ones. However, the district attorney is required to provide evidence that your threats were imminent and credible.
  • If you attempted to convince the victim not to testify at the court hearing — Under California law, this is a severe offense, and the prosecutor could prosecute it as a felony. It is listed under Penal Code 136.1PC. The violation is known as "intimidating a victim or witness."
  • Sending threats to the victim that you will execute any of the above actions — The law puts the security of the victim or vulnerable individuals first if there is a possibility of retribution or violence when cooperating with the police.

You do not need to have done the above to face a criminal restraining order. You only need to have made imminent and credible threats. This will trigger the court to move to protect the victim or witness and the integrity of their evidence.

Emergency Temporary Restraining Order (ETRO)

Typically, courts issue ETROs in domestic violence cases. They are injunctions prohibiting you from getting close to the victim or a certain place where the victim frequents to protect the victim. The ETRO aims to provide short-term or interim protection to the victim while he/she applies for a permanent restraining order. You will be notified of the order once the judge issues the ETRO. It is a crime under Penal Code 273.6 to violate an ETRO.

ETRO protects a victim against the following:

  • Harassment.
  • Physical injury or abuse.
  • Dependent adult abuse.
  • Stalking.
  • Threats of violence.

The following are the terms and conditions of an emergency temporary restraining order:

  • Stay-away order — This is an order that requires you to maintain some significant distance from the victim, their loved ones, work, or home.
  • A personal conduct order prevents you and the victim from engaging in specific acts like harassing, threatening, assaulting, calling, or destroying the victim's assets.
  • A residence exclusion order— This is an order that requires you to stay away from where the victim lives. This order permits the victim exclusive possession or use of the residence you jointly owned.

The victim could request an ETRO if:

  • You and the victim have a close relationship.
  • You have abused the victim.

Restraining Order Hearing

Once the victim secures an ETRO, the judge will set the date and time for the restraining order hearing. You will be served with ETRO papers once the hearing is set. The aim of serving you with an ETRO notice is to inform you that the victim has filed a petition against you. The notice will contain the following information:

  • The date and time of the hearing.
  • All the documents that were filed by the victim with the court to support the ETRO.
  • The statement of the action the victim requested.

You will have 20 days to respond to the victim’s statement once you receive the notice.

You could face several consequences under Penal Code 273.6 if you violate the ETRO. However, the prosecutor must prove the following elements for you to face the charges:

  • First, the court legally served you with an emergency restraining order.
  • Second, you were aware that the court had served you with the order.
  • You did not adhere to the court-issued order.
  • You intentionally violated the order.

Prosecutors usually prosecute violations of ETRO as misdemeanors. You could, therefore, face the following penalties:

  • A fine that does not exceed $1000.
  • A jail term that does not exceed one year in a county jail.

However, the prosecutor could prosecute the offense as a wobbler for the following reasons:

  • The violation of the restraining order involved violence.
  • You had previously been charged with violating a temporary restraining order.

A wobbler crime is one that the prosecutor can prosecute as a misdemeanor or a felony, depending on the circumstances of your case and your criminal record. If the prosecutor charges you with a felony, you could face the following penalties:

  • A jail term that does not exceed three years in a state prison.
  • A fine that does not exceed $10,000.

How an Attorney Can Help

If you do not agree to the restraining order, you have a chance to tell the judge why you do not agree during the restraining order hearing. You should hire a criminal defense attorney to help you challenge the restraining order. Your attorney will explain why the restraining order is unnecessary at the hearing. In addition to submitting evidence, your attorney can also call witnesses. The temporary restraining order will expire if the judge agrees to your attorney’s request. It is important to note that even if the judge imposes a permanent restraining order, you can still appeal its decision to a higher court.

Find a Criminal Defense Attorney Near Me

Have you received a temporary restraining order notice?

You should contact an attorney immediately to help you contest the order and prevent the issuance of a permanent restraining order. We invite you to contact the Long Beach Criminal Attorney if you need reliable legal representation. Contact us at 562-308-7807 to speak to one of our attorneys.