Sacramento Restraining Order Attorney Defending Your Rights

“When I was served with a restraining order I had no idea what I should do. Attorney Dan Olsen from Abrate & Olsen Law Group not only took the time to answer all my questions and concerns but explained all my legal rights and defense options. I cannot thank Dan enough for successfully guiding me through this difficult situation.”
– Stephen D. – Sacramento, CA

What is a Restraining Order?

Restraining orders are legal documents issued by a court that are used to prevent violence, harassment, stalking, or other types of abuse between two or more people. The person requesting the restraining order must provide the court with a sworn testimony detailing the reason for requesting the protection.

Also referred to as protection orders, restraining orders can be issued by a judge in both criminal and civil cases.

Types and Lengths of California Restraining Orders

Restraining orders can vary by type and length of protection they provide. We will describe the different types of orders, why they are used, and the levels of protection.

Different Types of Restraining Orders

Domestic Violence Restraining Order: Domestic Violence Restraining Orders (DVRO) are the most commonly issued type of restraining order. DVROs are used to protect someone from abuse or threats of abuse where the parties have a close relationship, including:

• Marriage or separation
• Domestic partnership
• Dating or previously dated
• Have children together
• Live or have lived together in the past as more than roommates
• Close family relationship including parent, child, grandparent, or sibling

Civil Harassment Restraining Order: Civil Harassment Restraining Orders can be issued by the court when a person is being harassed, threatened, abused, or stalked by a person who does not fall under the close relationship requirements of a DVRO. These types of individuals can include:

• Roommates
• Neighbors
• Distant family members including aunts, uncles, cousins, nieces and nephews

Workplace Violence Restraining Order: A Workplace Violence Restraining Order can be requested by an employer on behalf of an employee who has received violence or credible threats of violence, serious harassment, or stalking while at work.

Elder or Dependent Adult Abuse Restraining Order: An Elder or Dependent Adult Abuse Restraining Order is used to protect a person age 65 or older or between the ages of 18 to 64 who suffers from specific mental and/or physical disabilities that prevent them from protecting themselves.

The protective order can be issued when the elderly or dependent adult has been a victim of neglect, abandonment, financial or physical abuse, any type of treatment that has hurt the victim mentally or physically, or any deficiency by a caregiver of the basic necessities of life.

How Long Restraining Orders Can Last

Emergency Protective Order: An Emergency Protective Order may be issued to protect a person who is in the process of requesting a permanent restraining order. The order is only good for seven days at which time it may or may not be replaced with a permanent order. Police officers who respond to a domestic violence call may request an emergency protective order of behalf of an alleged victim to provide more security for them.

Temporary Restraining Order: Temporary Restraining Orders (TRO) can be requested by the prosecution in a domestic violence case to protect their client. The TRO provides the alleged victim with protection until either a hearing for a permanent order can be held or until the primary case is concluded.

Permanent Restraining Order: To receive a Permanent Restraining Order, a judge will first consider all the evidence presented for and against the order being issued. If the judge finds reasonable cause to grant the order, the order can be issued for up to five years.

What A Restraining Oder Does

Contact Restrictions

Preventing an accused abuser or harasser from having any form of contact with the alleged victim is the goal of issuing a restraining order. Contact can be defined as direct or indirect contact including but not limited to:

• Phone calls
• Digital Messages (email or text)
• Making threats to or verbally harassing the victim
• Destroying personal property
• Sexually assaulting, attacking, striking or battering the victim
• Disturbing the peace of the protected person and/or persons

Stay-Away Order

Additionally, the restraining order may include stay-away orders. Stay-away orders require the named person to keep a specified distance from the protected person (usually between 50 – 300 yards).

Places included in the stay-away order can include

• Where the person lives, works, or attends school
• His or her vehicle
• Additional places the person frequently visits
• If children are also protected in the order, their school and/or child care can be included

Move-Out Order

In cases where both parties are currently living together, the court can include a move-out order. This addition requires the accused to move out of the home the protected individual lives in, taking only necessary clothing and personal belonging until the court hearing.

Potential Effects of a Restraining Order

In addition to the personal and private restrictions mentioned above, a Permanent Restraining order can have significant impact on other areas of your life. Here are four additional areas that can be impacted in your life.

1. Child custody: A court can take into consideration restraining orders against you in child custody cases. This can be a deciding factor in your ability to have or retain custody of your child/children.
2. Employment and housing opportunities: Restraining orders are available as public record. This means that an employer or landlord who runs a background check will be notified of the order. This can have a significant impact on your ability to gain employment or housing.
3. Loss of right to own firearms: Pursuant to California Penal Code § 273.6, if a Permanent Restraining Order is issued against you, your gun rights and ability to obtain a state firearm license may be affected. If you currently own any firearms you will be forced to surrender them to law enforcement or immediately sell them to a licensed gun dealer.
4. Immigration and travel restrictions: Your ability to attain legal immigration status in the United States or ability to travel to some countries can be restricted or revoked when a restraining order is ordered against you.

“When I found myself in need of a restraining order I was not sure what to do. Abrate & Olsen Law Group were there to walk me through the process with great legal advice. They made sure I had all the legal documents and evidence I needed. Thanks to their help and support, I now have the peace of mind that I am safe.”
– Melissa Y. – Sacramento, CA

The Restraining Order Process

Depending on the type and reason for a restraining order the process can vary. However, typically the process follows these three steps:

1. Requesting the protective order: The person seeking a restraining order must go before a judge and provide a sworn testimony as to why the restraining order should be issued. In California, the claim must be proven by a “preponderance of the evidence” which is a lower standard of proof than the “beyond a reasonable doubt” standard. Therefore, the applicant needs to only persuade the judge that there is a likelihood the other person may attempt or cause harm, harass, or abuse them in some way as the result further interaction between the parties.
2. Serving the court documents: If the court issues a TRO the named person must be served with all the papers filed with the court. Unlike some legal documents, the paperwork cannot be mailed to the respondent. A process server or member of law enforcement must serve the papers. The paperwork will include the date, time and location of the hearing as well as the petitioner’s reasons for filing the restraining order. The respondent is generally given between 10 to 20 days to respond to the allegations.
3. The restraining order hearing: At the hearing for the Permanent Restraining Order the petitioner will make their case as to why the request should be granted. The petitioner and respondents will have the opportunity to present any evidence and witnesses that support or defend the accusations. Both parties will also have an opportunity to cross-examine the witnesses. The judge will then decide if the requested order is warranted and if a Permanent Restraining Order should be granted. If the respondent does not attend the hearing, the Permanent Restraining Order may be granted by default.

Violating a Restraining Order

Failing to comply with the terms and conditions of a restraining order can result in misdemeanor or felony criminal charges being filed. In order for the court to convict you of violating a restraining order, the prosecutor must prove four elements under California Penal Code § 273.6:

1. The restraining order was properly issued by the court
2. At the time of the violation you were fully aware of and understood the terms and conditions of the order
3. You were able to reasonably able to follow the order. This includes the order being reasonably written as to avoid any unjust or prejudicial restrictions on your liberties
4. You intentionally and willfully violated the restraining order

Penalties for Violating a Restraining Order

• First Violation: Depending on the circumstances of your violation, a court may sentence you to jail. An experienced attorney may be able to present a case to reduce your sentence to supervised probation rather than jail time. You may also be required to attend a mandatory 52-week counseling program or pay restitution to the victim. Violating any terms of your probation can result in the court sentencing you to the maximum jail time allowable under California Law.
• Additional Violations: Any additional violations of a restraining order within a twelve-month period can be charged as a misdemeanor or felony. A misdemeanor charge could result in up to six months in jail. A felony conviction could result in up to three years of jail and probation.

Possible Defenses for Violating a Restraining Order

If you find yourself being charged with a violation of a restraining order there are potential circumstances your criminal defense attorney may use to argue your alleged violation.

• Restraining order not properly served: If a restraining order was never served to you, as required by the court system, you may have been unaware of the order and therefore could not have intentionally known you were in violation. This defense is only possible if you were never served or the order was served to the wrong person.
• Unintentional / accidental violation: If you arrived at some public place, such as a store or restaurant and the protected individual was also at the location without prior knowledge, you lacked the intent to violate the restraining order and the violation was accidental.
• False accusations: Unfortunately, in some cases an alleged victim may falsely claim you violated the terms of a protective order. This can be done out of revenge, during a divorce or during a particularly emotional custody battle. If you find yourself falsely accused of violating a restraining order your best chance at clearing your name is with the legal assistance of an experienced criminal defense attorney. With the potential serious penalties that can come with a violation, it is important you are able to protect your innocence with all the legal tools available to you.
• Physically unable to comply: In some circumstances, certain restrictions of the order are not possible to comply with. For instance, if an order prohibits you from driving on the street the alleged victim works on yet there is no other route you can take to get to your place of employment, the court can find you were unable to comply with the order out of necessity rather than willfully violating the order.

If you or a loved one need legal advice for requesting a protective order, or if you believe a restraining order has been unfairly issued against you, our experienced and knowledgeable Sacramento Attorneys are available to help guide you through the legal process.

When it comes to your safety and legal rights, understanding how the court system works can greatly affect your final result. Should you find yourself in a situation where you need to request or defend a restraining order, please contact our law office for a consultation.