A restraining order, also known as a protective order, is a legal document issued by a court to protect individuals from harm or harassment by another person. It is designed to establish clear boundaries and prohibit the restrained person from engaging in specific actions or contacting the protected individual. Restraining orders are commonly sought in cases involving domestic violence, stalking, harassment, or any situation where one person feels threatened or endangered by another.
At the Restraining Order Law Firm in Los Angeles, we specialize in handling cases related to restraining orders and criminal protective orders. If you need help in modifying or challenging restraining orders in California, our lawyers will work diligently to protect your interests throughout the legal process.
What Is a Criminal Protective Order?
A criminal protective order is a legal document issued by a court to protect a victim or potential victim of a crime from a perceived threat or danger.
The purpose of a criminal protective order is to prevent contact or further harm from the defendant (the person accused of the crime) toward the protected party. The order sets certain restrictions and conditions that the defendant must follow, and violation of the order can result in criminal penalties.
Note that criminal protective orders are issued for a specified period, which can vary depending on the jurisdiction and the circumstances of the case. In some cases, they may be temporary, such as during the pendency of a criminal trial, while in others, they can be long-term or even permanent.
Purpose and Scope of Criminal Protective Orders
The purpose of criminal protective orders is to establish legal boundaries and provide measures of protection for the victim. Their primary objectives include:
Victim Protection
Criminal protective orders aim to safeguard the victim by prohibiting the person who has committed the crime or poses a threat from contacting, harassing, or harming the victim. This may include physical contact, communication, or approaching the victim in person.
Preventing Further Abuse or Harm
These orders help prevent additional acts of violence, harassment, or intimidation against the victim. By imposing legal restrictions on the offender's behavior, criminal protective orders serve as a deterrent and provide a legal framework for law enforcement to intervene if the order is violated.
Ensuring Safety and Peace of Mind
Criminal protective orders provide a sense of security and peace of mind for the victim, knowing that measures are in place to protect them. It allows them to go about their daily lives without fear or interference from the offender.
Assisting with Investigation and Prosecution
Restraining orders can be a valuable tool in assisting law enforcement and prosecutors in their efforts to investigate and prosecute criminal offenses. Violating a protective order can be a separate offense, providing law enforcement with a clear basis to take action.
Conditions and Restrictions of a Criminal Protective Order
The specific conditions and restrictions of a criminal protective order can vary depending on the circumstances of the case. However, here are some common conditions and restrictions that may be included in a criminal protective order:
No Contact
The defendant is prohibited from having any form of contact with the protected person. This includes direct contact (in person, by phone, email, or text), as well as indirect contact through third parties.
Stay Away
The defendant may be required to stay a certain distance away from the protected person's home, workplace, school, or other specified locations. The specific distance may vary depending on the circumstances.
Residence Exclusion
In cases where the defendant and the protected person live together, the order may require the defendant to move out of the shared residence.
Firearms Restriction
The defendant may be prohibited from possessing or purchasing firearms or ammunition while the protective order is in effect.
No Harassment
The defendant may be ordered not to harass, threaten, intimidate, or stalk the protected person.
No Third-Party Contact
The defendant may be prohibited from contacting or harassing the protected person through third parties, such as friends, family members, or coworkers.
Child Custody and Visitation
In cases involving children, the protective order may address child custody and visitation arrangements, outlining restrictions or guidelines for the defendant's interaction with the children.
Counseling or Treatment
The court may require the defendant to participate in counseling, anger management programs, or other forms of treatment as a condition of the protective order.
Compliance Monitoring
The order may authorize law enforcement or probation officers to enforce the terms of the order and conduct periodic check-ins or monitoring of the defendant's compliance.
Violation of a Criminal Protective Order
Violating a criminal protective order occurs when the restrained party intentionally and willfully disobeys any of the terms specified in the order. Violations can take various forms, including but not limited to:
- Contacting the protected party — This includes any form of communication, such as phone calls, text messages, emails, social media messages, or physical contact.
- Physical proximity — Approaching or coming within a specified distance of the protected party's residence, workplace, school, or other specified locations.
- Third-party contact — Using intermediaries or third parties to communicate with or gather information about the protected party, with the intent to circumvent the order.
- Possession of firearms or ammunition — Violating a criminal protective order may also involve possessing or acquiring firearms or ammunition, as such possession can pose a threat to the safety of the protected party.
Legal Consequences
Violating a criminal protective order in California is a criminal offense, and the severity of the penalties depends on various factors, including the defendant's criminal history and the circumstances surrounding the violation. The potential consequences can include:
Misdemeanor Charges
Violations can at times be charged as misdemeanors, carrying penalties of up to one year in county jail, fines of up to $1,000, or both.
Felony Charges
In certain circumstances, a violation can be charged as a felony, particularly if the defendant has prior convictions for domestic violence or if the violation involved acts of violence or threats. Felony charges can result in more severe penalties, including imprisonment in state prison.
Probation
In addition to or instead of jail time, the court may impose probation as a sentence, requiring the defendant to adhere to specific conditions, such as attending counseling, completing a batterer's intervention program, or staying away from the protected party.
Restraining Order Modification
The court may modify or extend the existing protective order to provide further protection to the victim if a violation occurs. This modification can include stricter provisions or longer duration.
Defenses Against Violation Charges
While each case is unique, several potential defenses may be raised against charges of violating a criminal protective order:
Lack of Sufficient Evidence
One of the primary defenses against a CPO is the lack of sufficient evidence to support its issuance. The burden of proof lies with the party seeking the order, the prosecutor, or the alleged victim. The accused can challenge the evidence presented, asserting that there is an insufficient factual basis to demonstrate the need for a protective order. A strong defense may require demonstrating inconsistencies in witness statements or undermining the credibility of the alleged victim's claims.
Lack of Imminent Threat
To obtain a CPO, the court must be convinced that the accused poses an imminent threat of harm to the alleged victim. Therefore, another potential defense is to demonstrate the absence of any immediate or foreseeable danger. This defense often relies on presenting evidence that disputes the claim of a real and present danger posed by the accused. For instance, if there is a lack of a history of violence or the alleged threat is based on speculation rather than concrete evidence, the defense can argue against the necessity of a protective order.
Violations of Due Process
The accused has the right to due process under the law. This defense asserts that the CPO was issued in violation of the accused's constitutional rights. It may involve challenging procedural errors, such as the failure to provide notice of the hearing or an opportunity to present a defense. Additionally, if the accused was not given an adequate opportunity to cross-examine witnesses or challenge the evidence, it can undermine the legitimacy of the protective order.
False Accusations or Misinterpretations
In some cases, the alleged victim may have made false accusations or misinterpreted events, leading to the issuance of a CPO. The defense can focus on discrediting the alleged victim's testimony by providing evidence that contradicts their claims. This may involve presenting witnesses, video recordings, or other forms of evidence that undermine the credibility of the accusations. Demonstrating inconsistencies in the alleged victim's statements or providing an alternative explanation for the events can strengthen this defense.
Challenging the Terms of the CPO
While challenging the necessity of a CPO is one approach, another defense strategy may involve contesting the specific terms and conditions of the order. The accused can argue that the restrictions imposed by the CPO are excessive, unnecessary, or unduly burdensome. This defense may involve showing that the terms are not reasonably tailored to address the alleged threat or that they unduly interfere with the accused's rights or ability to lead a normal life.
Lack of Knowledge
If the defendant was unaware of the existence or terms of the order, they may argue that they did not willfully violate it.
Invalid Order
If there are defects in the issuance or service of the protective order, such as procedural errors or lack of proper notice, the defense may challenge the validity of the order itself.
Lack of Notice
They can argue that they did not receive proper notice of the order. For example, they may claim that they were not served with the order or that the order was sent to the wrong address.
Consent
If the protected party initiated the contact or willingly engaged with the defendant, it may be argued that there was no violation.
Mistaken Belief
They may assert that they had a genuine belief that their actions did not violate the order. For instance, they might argue that they misunderstood the scope or applicability of the order.
Grounds for Modifying or Terminating a Criminal Protective Order
Modifying or terminating a CPO requires valid grounds and a compelling argument. The following are some common scenarios where such a request may be made:
Change in Circumstances
If there has been a significant change in the circumstances surrounding the case, such as the parties involved no longer feeling threatened or the need for protection diminishing, a modification or termination of the CPO may be warranted.
Consent of the Protected Party
In some cases, the protected party may voluntarily request a modification or termination of the CPO, expressing a desire to resume contact or reconcile with the accused.
Compliance with Conditions
The accused may request modification or termination if they have demonstrated consistent compliance with the conditions outlined in the CPO, such as attending anger management classes, completing counseling, or maintaining good behavior.
Time Elapsed
In certain instances, a significant amount of time may have passed since the issuance of the CPO, and both parties may argue that it is no longer necessary or relevant to their current circumstances.
The Process for Modifying or Terminating a Criminal Protective Order
Modifying or terminating a CPO involves several key steps, which may vary depending on the jurisdiction and specific circumstances. Here is a general outline of the process:
Consult an Attorney
It is essential to seek legal advice from an experienced attorney who specializes in criminal law. They can guide you through the process, provide valuable insights, and help you present a strong case.
File a Motion
Your attorney will help prepare and file a motion with the court requesting the modification or termination of the CPO. This motion should outline the grounds for the request and provide supporting evidence or documentation, such as affidavits, witness statements, or relevant court records.
Serve Notice
The motion must be served to all parties involved, including the protected party and the prosecution. Follow the appropriate legal procedures for serving the notice, ensuring compliance with the rules of your jurisdiction.
Court Hearing
Once the motion is filed and notice is served, a court hearing will be scheduled. During the hearing, both parties will have an opportunity to present their arguments, and the judge will assess the evidence and make a decision.
The burden of Proof
The burden of proof lies with the party seeking the modification or termination. It is crucial to provide convincing evidence and strong legal arguments to support your case.
Considerations and Challenges
Modifying or terminating a CPO can be a complex and challenging process. Several factors and challenges may influence the outcome:
- Legal Standards — Courts have specific legal standards that need to be met to modify or terminate a CPO. These standards may vary depending on the jurisdiction, but common factors include a change in circumstances or evidence that shows the protected person is no longer at risk.
- The burden of Proof — The burden of proof generally rests on the party seeking the modification or termination of the CPO. The law firm representing the defendant would need to present compelling evidence and arguments to convince the court that the order should be modified or lifted.
- Victim's Consent — In some jurisdictions, the victim's consent or input may be required before modifying or terminating a CPO. If the victim opposes the modification or termination, it can present a significant challenge for the defense. The law firm would need to address the victim's concerns or demonstrate a substantial change in circumstances to persuade the court.
- Substantial Change in Circumstances — Courts often require a substantial change in circumstances to consider modifying or terminating a CPO. The law firm must identify and present evidence that shows a significant shift in the circumstances since the issuance of the order, such as improved relationships, completed counseling or therapy, or evidence of rehabilitation.
- Evidence and Documentation — Building a strong case for modifying or terminating a CPO requires thorough documentation and evidence. The defense law firm must gather relevant records, testimonies, and any other evidence that supports its argument for modification or termination.
- Adverse Consequences of a CPO — The defense law firm should demonstrate any adverse consequences the defendant is facing due to the existence of the CPO. This may include limitations on employment opportunities, housing difficulties, or strained family relationships. Presenting such consequences can bolster the argument for modification or termination.
- Victim Safety Concerns — The court's primary concern in cases involving CPOs is often the safety and well-being of the protected person. The law firm must address any potential safety concerns and present a comprehensive plan to ensure the victim's continued protection, even if the order is modified or terminated.
Find a Criminal Defense Attorney Near Me
If you are facing a restraining order or criminal protective order, it is crucial to consult with a criminal defense law firm. At Restraining Order Law Firm, we can guide you on your legal rights, help you understand the implications of the order, and develop a strong defense strategy. Our experienced Los Angeles defense attorneys can also represent you in court proceedings, challenge the validity of the order if appropriate, and work towards achieving the best possible outcome for your case. Call us today at 424-600-7691.
