A restraining order is a court issued mandate compelling a person to stay away from persons or places after a hearing setting forth some cognizable threat of harm. We see those caught in toxic relationships (intimate or otherwise) petition courts for these orders all the time. And, believe it or not, these orders are fairly easily to get.
Generally, these orders materialize in two ways: (1) civil court petitions; and (2) during a criminal case involving some threat to an alleged victim. In a civil court context, a person seeking the order will draft an affidavit in support of his or her petition describing the threat. The court will review the papers, hear any additional evidence and decide. From my experience, many respondents (those who may be subject to the order) do not contest these petitions and the court of course issues that order. And, even when the respondent shows up to fight, we still see a vast of majority of petitioners getting these orders. By contrast, when someone is charged with a crime (can happen merely because the alleged victim called 911), the court will almost always issue a restraining order (or protective order) pending the outcome of the proceedings. See e.g., Penal Code Sections 136.2 and 1203.097. In a domestic violence criminal case, the court must issue these orders per 1203.097, while in non-domestic violence case (i.e. assault/battery/threats/burglary etc.) the court should hear actual evidence before issuing the order. See Babalola v. Superior Court of Los Angeles County, 192 Cal.App.4th 948 (2011). In short, these orders are fairly easy to get, although the court certainly has power to modify the restrictions accompanying the original order as these cases unfold.
When someone violates one of the orders mentioned above, they may face a criminal case prosecuted pursuant to Penal Code Sections 166 et. seq., and 273.6 et. seq. But note, that someone cannot be charged because they violated a restraining/protective order lodged as a condition of probation. See People v. Johnson, 20 Cal.App.4th 106, 109 (1993).
How do we defend these? We can defend these cases several ways:
(1) The Order Was Not Lawfully Issued: Here, we are asserting that the order never should have been issued because there was no threat (petitioner was lying for e.g.) or that the order is simply unconstitutional. An order may be unconstitutional if it is over-broad and unnecessary, for example, ordering a student to stay 100 yards away from another student in the same class – that would effectively deprive the restrained student from his or her right to education.
(2) The Defendant Did not Know of the Order: Our clients must know that the order even existed. Please note, this is to be contrasted from not knowing what the order entailed. A person who has the opportunity to read the order cannot defend their case because they did not actually read its contents.
(3) The Defendant Did not “Willfully” Violate the Order: The prosecution cannot win if the client did not intend to do the proscribed act. Thus for example, if the defendant (restrained person) goes to the grocery store and unexpectedly sees her ex-boyfriend in the frozen food aisle after being ordered to stay 100 yards away from him, she should be acquitted. This is because she did not “willfully” go within 100 yards of the alleged victim.
In sum, we must fight restraining orders. These orders are easy to get, and carry a heavy stalker stigma that can negatively affect lives in permanent ways. Call the Pasadena and Los Angeles criminal defense attorneys at THE LEVENTHAL FIRM to fight your criminal restraining order violation.