Temporary Restraining Orders (TRO)

A TRO may be requested by your accuser ex parte, or by going to court without the need for your presence or to even serve you with notice of the appearance. Such orders are sought if you are accused of stalking, threatening someone with physical violence, been accused of physical or domestic violence or even mental abuse. In most situations, the accuser need only complete a court form or affidavit setting forth facts such as an assault by you, threatening statements, phone calls or emails that you allegedly made that places the accuser to feel that his/her safety is imminently threatened and have suffered mental distress.

Like an EPO, the TRO can continue to bar you from the accused’s home or from any further contact with the accused. This can force you to seek shelter at a friend’s home or motel and not have access to your possessions. If you do come within a certain proximity to the accused, you could be forced to immediately leave the area or face a restraining order violation.

You have no say on the parameters of a restraining order and must obey them or face possible arrest.

Permanent Restraining Orders

Once the TRO is issued you have a few weeks to about one month to retain an attorney to represent you. In the meantime, you have no choice but to make a good faith effort to adhere to the restrictions and limitations placed on you. If the permanent order is issued, it may last up to several years or until you are considered no longer a threat. Within the permanent restraining order may be a requirement that you participate and complete counseling or other court-approved programs.

Violating a Restraining Order

You can be accused of violating an EPO, TRO or permanent restraining order if you fail to follow any of the prohibitions placed on you. If the order states you are to be no closer than 100 feet from the accuser, then any knowing or intentional violation of that is a crime. Likewise, calling the accuser and hanging up is also considered “contact” and a violation that could land you in jail. Another is failing to complete a court-ordered counseling or therapy program.

To be convicted of violating a written restraining order, the prosecution must prove:

• You had knowledge of the order and its restrictions
• You had the ability to understand and follow its terms
• You intentionally violated a term or terms of the order

A violation is considered a misdemeanor with potential county jail time of up to one year and a fine up to $1000. If an injury resulted because of the violation, the fine is increased to $2000 and there is a mandatory minimum jail sentence of 30 days.

Other violations can result in the following:

• 2 violations in the same year and an injury–$2000 fine and/or from 6 months to one year in jail
• If prosecuted as a felony because of multiple violations—jail time of 16 months, 2 or 3 years
• If a second violation within 7 years that is a credible threat, you can be charged with either a misdemeanor or felony
• Possible loss of the right to own or possess a firearm

Be aware that you could be committing another crime while violating a restraining order. For instance, if you are prohibited from entering your spouse’s home but you wish to retrieve some possessions and enter the home, you could face a burglary charge or one of breaking and entering. Also, if you repeatedly violate a provision of the TRO or permanent order, you face possible felony charges. The possibility that you could be charged with another criminal offense can be discussed with an attorney from the Restraining Order Violation Attorney Group.

Defenses to Violating a Restraining Order

• Lack of Intent. The most common defense to a restraining order is that the violation was a mistake or was not intentional. For instance, if the accused sees you at the same grocery store but you were unaware of the person’s presence, then no violation occurred. Another defense is that the accuser initiated the contact only to later accuse you of the contact. You may need the testimony of other people who can corroborate whether it was you that violated the order.
• Lack of knowledge. This can arise if you were not served with the order or can show that service was not validly performed.
• Inability to follow the terms of the order. If the terms of the order are unreasonable or unfairly restricts you, then you lacked the ability to comply. For instance, if the order prohibits you from entering your place of work that is within 100 feet of the accuser’s home, a court will probably rule that you could not comply with it.
• False allegations or facts to support the order. If the facts upon which the order was issued are shown to have been fabricated, then the order is invalid. Many times, custody battles or jealousy or scorn are the true motivators for an accuser to seek a restraining order.

Do not attempt to defend yourself if facing a restraining order violation. Contact an experienced defense attorney from the Restraining Order Violation Attorney Group for a free, initial consultation.

Violation of a restraining order is governed by PC 273.6:

(a) Any intentional and knowing violation of a protective order, as defined in Section 6218 of the Family Code, or of an order issued pursuant to Section 527.6, 527.8, or 527.85 of the Code of Civil Procedure, or Section 15657.03 of the Welfare and Institutions Code, is a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000), or by imprisonment in a county jail for not more than one year, or by both that fine and imprisonment.

(b) In the event of a violation of subdivision (a) that results in physical injury, the person shall be punished by a fine of not more than two thousand dollars ($2,000), or by imprisonment in a county jail for not less than 30 days nor more than one year, or by both that fine and imprisonment. However, if the person is imprisoned in a county jail for at least 48 hours, the court may, in the interest of justice and for reasons stated on the record, reduce or eliminate the 30-day minimum imprisonment required by this subdivision. In determining whether to reduce or eliminate the minimum imprisonment pursuant to this subdivision, the court shall consider the seriousness of the facts before the court, whether there are additional allegations of a violation of the order during the pendency of the case before the court, the probability of future violations, the safety of the victim, and whether the defendant has successfully completed or is making progress with counseling.

(c) Subdivisions (a) and (b) shall apply to the following court orders:

(1) Any order issued pursuant to Section 6320 or 6389 of the Family Code.

(2) An order excluding one party from the family dwelling or from the dwelling of the other.

(3) An order enjoining a party from specified behavior that the court determined was necessary to effectuate the order described in subdivision (a).

(4) Any order issued by another state that is recognized under Part 5 (commencing with Section 6400) of Division 10 of the Family Code.

(d) A subsequent conviction for a violation of an order described in subdivision (a), occurring within seven years of a prior conviction for a violation of an order described in subdivision (a) and involving an act of violence or “a credible threat” of violence, as defined in subdivision (c) of Section 139, is punishable by imprisonment in a county jail not to exceed one year, or pursuant to subdivision (h) of Section 1170.

(e) In the event of a subsequent conviction for a violation of an order described in subdivision (a) for an act occurring within one year of a prior conviction for a violation of an order described in subdivision (a) that results in physical injury to a victim, the person shall be punished by a fine of not more than two thousand dollars ($2,000), or by imprisonment in a county jail for not less than six months nor more than one year, by both that fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170. However, if the person is imprisoned in a county jail for at least 30 days, the court may, in the interest of justice and for reasons stated in the record, reduce or eliminate the six-month minimum imprisonment required by this subdivision. In determining whether to reduce or eliminate the minimum imprisonment pursuant to this subdivision, the court shall consider the seriousness of the facts before the court, whether there are additional allegations of a violation of the order during the pendency of the case before the court, the probability of future violations, the safety of the victim, and whether the defendant has successfully completed or is making progress with counseling.

(f) The prosecuting agency of each county shall have the primary responsibility for the enforcement of orders described in subdivisions (a), (b), (d), and (e).

(g) (1) Every person who owns, possesses, purchases, or receives a firearm knowing he or she is prohibited from doing so by the provisions of a protective order as defined in Section 136.2 of this code, Section 6218 of the Family Code, or Section 527.6, 527.8, or 527.85 of the Code of Civil Procedure, or Section 15657.03 of the Welfare and Institutions Code, shall be punished under Section 29825.

(2) Every person subject to a protective order described in paragraph (1) shall not be prosecuted under this section for owning, possessing, purchasing, or receiving a firearm to the extent that firearm is granted an exemption pursuant to subdivision (f) of Section 527.9 of the Code of Civil Procedure, or subdivision (h) of Section 6389 of the Family Code.

(h) If probation is granted upon conviction of a violation of subdivision (a), (b), (c), (d), or (e), the court shall impose probation consistent with Section 1203.097, and the conditions of probation may include, in lieu of a fine, one or both of the following requirements:

(1) That the defendant make payments to a battered women’s shelter or to a shelter for abused elder persons or dependent adults, up to a maximum of five thousand dollars ($5,000), pursuant to Section 1203.097.

(2) That the defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant’s offense.

(i) For any order to pay a fine, make payments to a battered women’ s shelter, or pay restitution as a condition of probation under subdivision (e), the court shall make a determination of the defendant’s ability to pay. In no event shall any order to make payments to a battered women’s shelter be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support. Where the injury to a married person is caused in whole or in part by the criminal acts of his or her spouse in violation of this section, the community property may not be used to discharge the liability of the offending spouse for restitution to the injured spouse, required by Section 1203.04, as operative on or before August 2, 1995, or Section 1202.4, or to a shelter for costs with regard to the injured spouse and dependents, required by this section, until all separate property of the offending spouse is exhausted.

273.65. (a) Any intentional and knowing violation of a protective order issued pursuant to Section 213.5, 304, or 362.4 of the Welfare and Institutions Code is a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000), or by imprisonment in a county jail for not more than one year, or by both the fine and imprisonment.

(b) In the event of a violation of subdivision (a) which results in physical injury, the person shall be punished by a fine of not more than two thousand dollars ($2,000), or by imprisonment in a county jail for not less than 30 days nor more than one year, or by both the fine and imprisonment. However, if the person is imprisoned in a county jail for at least 48 hours, the court may, in the interests of justice and for reasons stated on the record, reduce or eliminate the 30-day minimum imprisonment required by this subdivision. In determining whether to reduce or eliminate the minimum imprisonment pursuant to this subdivision, the court shall consider the seriousness of the facts before the court, whether there are additional allegations of a violation of the order during the pendency of the case before the court, the probability of future violations, the safety of the victim, and whether the defendant has successfully completed or is making progress with counseling.

(c) Subdivisions (a) and (b) shall apply to the following court orders:

(1) An order enjoining any party from molesting, attacking, striking, threatening, sexually assaulting, battering, harassing, contacting repeatedly by mail with the intent to harass, or disturbing the peace of the other party, or other named family and household members.

(2) An order excluding one party from the family dwelling or from the dwelling of the other.

(3) An order enjoining a party from specified behavior which the court determined was necessary to effectuate the order under subdivision (a).

(d) A subsequent conviction for a violation of an order described in subdivision (a), occurring within seven years of a prior conviction for a violation of an order described in subdivision (a) and involving an act of violence or “a credible threat” of violence, as defined in subdivision (c) of Section 139, is punishable by imprisonment in a county jail not to exceed one year, or pursuant to subdivision (h) of Section 1170.

(e) In the event of a subsequent conviction for a violation of an order described in subdivision (a) for an act occurring within one year of a prior conviction for a violation of an order described in subdivision (a) which results in physical injury to the same victim, the person shall be punished by a fine of not more than two thousand dollars ($2,000), or by imprisonment in a county jail for not less than six months nor more than one year, by both that fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170. However, if the person is imprisoned in a county jail for at least 30 days, the court may, in the interests of justice and for reasons stated in the record, reduce or eliminate the six-month minimum imprisonment required by this subdivision. In determining whether to reduce or eliminate the minimum imprisonment pursuant to this subdivision, the court shall consider the seriousness of the facts before the court, whether there are additional allegations of a violation of the order during the pendency of the case before the court, the probability of future violations, the safety of the victim, and whether the defendant has successfully completed or is making progress with counseling.

(f) The prosecuting agency of each county shall have the primary responsibility for the enforcement of orders issued pursuant to subdivisions (a), (b), (d), and (e).

(g) The court may order a person convicted under this section to undergo counseling, and, if appropriate, to complete a batterer’s treatment program.

(h) If probation is granted upon conviction of a violation of subdivision (a), (b), or (c), the conditions of probation may include, in lieu of a fine, one or both of the following requirements:

(1) That the defendant make payments to a battered women’s shelter, up to a maximum of five thousand dollars ($5,000), pursuant to Section 1203.097.

(2) That the defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant’s offense.

(i) For any order to pay a fine, make payments to a battered women’s shelter, or pay restitution as a condition of probation under subdivision (e), the court shall make a determination of the defendant’s ability to pay. In no event shall any order to make payments to a battered women’s shelter be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support.