How do I get a domestic violence restraining order in San Diego?

You file DV forms with the San Diego Superior Court. A judge may issue a temporary order before the hearing.

How long does a DV restraining order last?

A domestic violence restraining order in San Diego can last up to five years.

Can I fight a domestic violence restraining order?

Yes. You may file a response, present evidence, and appear at the court hearing.

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Domestic Violence

There are various ways in which California criminal law protects victims, especially domestic violence victims. One of these ways is the issuance of a protective order. A criminal protective order protects a person experiencing abuse or violence by restricting their contact with the abuser. The court can issue a restraining order against you if you show violent behavior towards another party. The judge can do this to keep the victim safe. Sometimes, however, you are not responsible for the allegations made by the said victim. For example, a victim can make false allegations of domestic violence. In this case, you require a protective order attorney to defend you in the hearing. At Jason Ronis Law, we represent victims seeking protective orders and help defendants fight restraining orders against them. Contact us today if you are seeking a protective order in San Diego or fighting against one.

Criminal Protective Order Explained

Typically, a judge can issue a criminal protective order to protect a victim or witness of an offense. The court can issue a criminal protective order for specific crimes like domestic violence, stalking, criminal threats, and others. A criminal protective order requires the restrained person to keep off from the victim. This order can sometimes cut off all the communication between the restrained and the protected persons. Judges assess the facts of the offense to ascertain whether the protective order is necessary.

A judge can serve you with a criminal protective order if the judge believes you threaten the safety of another person. The prosecutor must provide sufficient evidence of you hurting your partner or another victim for them to secure a protective order against you. Similarly, the prosecutor must prove that you caused harm to a family member or your fiancee for them to secure a protective order against you.

On the other hand, the court can issue an order to protect the victim if the victim is facing violence or threats. The court can do this to protect the victim from the defendant. The judge will be specific on the actions of the abuser after an incident of violence and the issuance of the protective order. In this case, the following can happen:

The abuser can be ordered to leave the home the abuser shared with the abused partner.
The police can escort the abuser away from the shared home or place of work to prevent any contact. If the restrained person agrees, the court can impose other protective measures it deems fit for the abused.
The abuser can be required to pay for the victim’s attorney fee if the case proceeds to court.
In most cases, the judge can grant custody of the children to the victim of domestic violence. The abuser can be ordered to pay child support and can be allowed visitation. The abused should make sure the children are safe when visitation is granted to the restrained partner.

The Types of Offenses That Can Attract a Criminal Protective Order

The following offenses can attract a criminal protective order:

Psychological Abuse

The judge can impose a criminal protective order against a defendant who issues threats and humiliates another person.

Economic Abuse

The court can impose a criminal protective order if a defendant makes their spouse entirely dependent on them by withholding financial resources.

Emotional Abuse

Emotional abuse can arise from criticism, belittling, or trying to diminish the victim’s self-esteem. The court can issue a criminal protective order against a defendant who tries to demean, belittle, or criticize a victim.

Sexual Abuse

A criminal protective order can arise if the defendant forces their spouse or another victim to engage in sexual acts.

Physical Abuse

A defendant can have a criminal protective order issued against them if they hit, bruise, grab, or cause any other bodily injury to another person.

Common Types Of Criminal Protective Orders

The court can issue two types of criminal protective orders against a defendant. They include:

A No Negative Contact Order

A no-negative contact order can give the defendant some leniency. Harmful contact is doing or saying things that affect the victim. When the court imposes a criminal protective order, issuing threats and insults is prohibited. Violation of this order can be discovered if law enforcement officers are called over a confrontation. However, the court can only issue a no-negative contact order under unique circumstances.

A Stay Away Order

This is the standard protective order issued by the court. In this case, the court orders the defendant to keep off from the protected person until the case is ruled and after the case if there is a conviction. A stay-away order constitutes the following type of contact:

Avoid any physical contact with the protected victim
The defendant is not allowed to go within 100 feet of the protected victim
Avoid contact with the third party unless the third party is the defendant’s attorney or the victim’s attorney
The defendant should leave immediately if he/she accidentally comes in contact with the protected victim
Avoid any electronic communication, including phone calls and emails, as well as various types of social media

The defendant can face misdemeanor charges for violating the conditions of a stay away protective order.

Protective Order Hearing

Law enforcement can issue a temporary restraining order against the abuser when they come to the scene of the crime. A hearing will be set where the abused will appear before the judge. This is where the victim will be given a chance to explain their situation in the absence of the abuser. Both the abuser and the abused will be present in return for the second hearing. The district attorney will be given a chance to demonstrate that the abuser made the victim feel threatened, unsafe, or hurt. At this point, the district attorney must show that the alleged victim requires protection. The abuser will also be given a chance to explain their side of the story. At the end of the hearing, the court will determine if the abuse deserves the final protective order.

The judge can choose to continue with the temporary protective order if the abuser fails to appear for the hearing. The court can also give the police a notice to pass to the abuser, ordering them to attend the hearing. Alternatively, the court can enter a final order to grant the victim a permanent restraining order. Domestic violence is treated seriously in California. If the abused fails to show up in court, the police will try to locate them. If the police fail to find the abused, the court will dismiss the restraining order. If this happens, the victim will not be protected from the abuser.

After the hearing, the court will issue the victim a copy of the protective order. The victim must seek clarification from the attorney and carry it everywhere. The protective order gives the victim a right to be protected by the police. The court will notify the police within 24 hours of the existence of the victim’s protection order. The conditions of the order will require the police to protect the victim, their close family members, and other people who live with the victim in the home. The victim should return to court and secure another copy if he/she accidentally loses the order.

Violation of a Criminal Protective Order

The abused can reach out to the police if the abuser does not follow the terms of the protective order. The police can then arrest the abuser. According to Penal Code 166(a)(4), violating a criminal protective order is an offense. The defendant can face misdemeanor, felony, or contempt of court charges for violating a criminal protective order. However, this can depend on the circumstances of the case. If the prosecutor accuses the defendant of violating a criminal protective order, he/she must prove the following elements:

The court placed a valid criminal protective order, and its issuance was done lawfully. The main element is the order’s validity, which determines the conviction. The defendant cannot face charges of violating an unlawful order. Various reasons can make a protective order unlawful. One reason is that the judge does not have a right to issue the order, or there was no reason to secure an emergency protective order.
The defendant knew the existence of the protective order issued against them. In this case, the prosecutor must provide sufficient evidence that the restrained person is aware of the existence of the protective order. Permanent restraining orders are issued verbally in court when the defendant is present. The order will be issued in writing and delivered by a third party if the defendant is not in court. However, the third party is not required to provide evidence that the defendant read and understood the order.
The accused intentionally violated the terms of the protective order. An accused can be deemed to have intentionally violated the protective order if their actions were willful, hoping to gain something or hurt the victim. However, the defendant cannot face the charges if he/she had no intention of violating the order.
The defendant’s ability to adhere to the protective order — For the defendant to be legally bound by a protective order, the defendant must be able to comply with the order.

The Penalties For Violating A Criminal Protective Order

Violation of a criminal protective order is a severe offense. If found guilty, the defendant can face misdemeanor charges under Penal Code 273.6. Misdemeanor charges can attract a jail term that does not exceed one year in a county jail. The accused can also face a fine that does not exceed $1000.

On the other hand, the defendant can face felony charges if the alleged violation resulted in injuries or if the accused is a repeat offender. Felony charges can attract a jail term that does not exceed three years in a state prison. The defendant can also face a fine that does not exceed $10,000. Additionally, the accused will be ordered to attend mandatory counseling if convicted of violating a criminal protective order. The judge can also order the defendant to meet all medical costs incurred by the victim. The court can also confiscate the defendant’s gun if he/she holds one and prevent them from owning a new gun.

Possessing a Firearm and Other Firearms When Under a Criminal Protective Order

When the court imposes a criminal protective order on the defendant, they are not allowed to own a gun. Securing a gun while the protective order is still valid is also an offense. If the accused already owns a gun, the court will order them to sell it to a licensed dealer. The court can also order the defendant to return the gun to the authorities until the criminal protective order expires. The accused can face charges for failing to obey the order.

Failure to observe this order can result in a jail term. The accused can also face a fine that does not exceed $1000. The judge can set another hearing to review and determine if the defendant adhered to the order to dispose of the gun.

Terminating A Criminal Protective Order

A criminal protective order can be terminated orally or by filing a motion. However, the court will consider several factors before granting the termination of a criminal protective order. Some of the factors can include:

The effect that the termination will have on the protected
The living circumstances between the defendant and the protected person
The progress the defendant has made during the probation period and the victim’s opinion of the situation change
The ruling of the case and if the abuser was convicted
Whether the defendant is taking the proper steps to correct the behavior, the steps can include enrolling in parenting and drug counseling.
Whether the accused accepts responsibility for their abusive actions against the victim

Other Protective Orders

There are several protective orders similar to a criminal protective order. They include:

Civil Harassment Protective Order

The court can impose a civil harassment protective order on the abuser who is not related to the abuse. Judges can grant this order to the victim if the victim suffered harassment from the defendant. The harassment can be unlawful physical violence as well as verbal threats. The court can issue a temporary protective order against a defendant if there is reasonable proof of harassment. An accused person can face a permanent protective order after the hearing. The temporary protective order will be converted into a complete restraining order if sufficient evidence of harassment is presented. A civil harassment protective order usually takes three to five years.

Elders And Dependent Adult Protective Order

The elders and dependent adult protective order typically protects people aged 65 or over. Similarly, this protective order applies to adults aged between 18 and 64 who suffer from physical and mental disability because they are regarded as dependent adults. Elders and dependent adult protective orders protect these people from previous and ongoing abuse. This protective order can take a period that does not exceed three years. The abuse for the dependent adults and elders can be emotional, mental, and physical, as well as neglect and denial of proper primary care.

Workplace Violence Protective Order

The court can grant a workplace violence protective order to an employee who is a victim of a violent encounter at their place of work. A business owner can initiate this order for their employee. The court can issue a temporary protective order after the incident, and the judge can set a hearing afterward. An employer must provide clear and convincing evidence that the employee suffered violence for the court to grant a complete protective order. The employer must also provide sufficient proof that the violence will likely recur if nothing is done regarding the case.

Emergency Protective Order

The law enforcement officers can request an emergency protective order under Family Code Section 6250. Law enforcement officers can issue this order when they are called to the scene of a violent case. The judge can be contacted, and a temporary protective order can be requested if law enforcement believes the victim is in danger. This order lasts five to seven days and takes effect immediately after publication. Only the police can seek emergency protective orders for a person under threat. Judges are usually available anytime to grant this protective order upon request.

According to Family Code Section 6251, the following must be established before an emergency protective order is granted:

The protective order would ensure the previous abuse case does not happen again
An older person or a dependent adult is in danger or suffering harm
A child is at risk of abuse or abduction
There is enough evidence that the victim is at risk of violence or abuse

Defenses For Violating Protective Order Charges

Some of the defenses a defendant can present against violating a protective order can include:

The Contact Was Accidental

A defendant can present this defense if the defendant did not intend to come in contact with the protected. The defendant’s attorney can claim that the meeting was a mere coincidence. Defendants cannot face charges for any unintentional actions.

Did Not Commit Any Crime Against The Victim

The defendant’s attorney can assert that the restrained person did not commit any offense against the victim and that the court issued the order unlawfully. Existing charges can be dropped if the prosecutor lacks sufficient evidence to prove without a reasonable doubt that the restrained person committed the alleged crime.

Unaware Of The Existence Of The Protective Order

A defendant cannot intentionally violate the terms of the protective order if he/she does not know about it. For example, there is no way a defendant would find out the existence of the protective order if it was issued without a hearing.

Modifying A Criminal Protective Order

There are many ways to modify or change the terms of a criminal protective order. The victim can request a change in the order at the court. However, district attorneys typically discourage this practice because the victim is almost always their primary witness in the case against the abuser. They do not like handling cases where the protected person is sympathetic to the abuser.

Filing a request to modify the criminal protective order is another way to change the orders of this order. It is always hard for these modifications to go through. They can only go through if the victim agrees. When the victim agrees with the change, the victim should be ready to address the court’s primary concern. The court’s main concern can be if the victim can protect themselves emotionally and physically without the criminal protective order. Unfortunately, the victim is not likely to receive help from the abuser or the defense attorney because of the communication restriction in place according to the protective order.

On the other hand, the abuser can seek a modification of the criminal protective order. The defendant can do so by serving the notice of request to the right people, including the district attorney and the probation officer. The DA or probation officer can forward the request to modify a criminal protective order to the victim. The victim would be given a chance to respond. The court can change the terms of the protective order if the victim agrees with the modifications. Criminal defense attorneys always favor this approach. CR-160 Domestic Violence (DV) and CR-161 Non-Domestic Violence are the forms used for this purpose.

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