The laws of California are stringent when it comes to prosecuting cases of domestic violence. A restraining order is one way the court can punish an offender. If you have received a restraining order, it can have life-changing consequences for you. Depending on the set conditions, you may be prevented from seeing your family, spouse, owning a gun in addition to facing fines and penalties for the violation of the order. If you have been issued with a repeat violence restraining order, contact the San Diego Restraining Order Attorney for assistance. You can also contact us for help with getting a restraining order against an intimate partner or relative who is a threat to your safety.

What Is A Repeat Violence Restraining Order?

Repeat violence restraining order is given to an offender who repeats a domestic violence offense within six (6) months of a previous and similar crime. A person can petition for a repeat violence restriction order if they feel that being in contact with you, exposes them to danger.

Violence refers to acts such as:

  • Aggravated assault

  • Aggravated battery

  • Aggravated Stalking

  • False imprisonment

  • Kidnapping

  • Sexual assault

  • Sexual battery

  • Stalking

You can be charged with violence, even when you had no actual contact with the victim. Repeat violence is usually the commission of a violent act directed against a petitioner or persons close to the petitioner within six (6) months of the first act of violence.

Persons who can file a restraining order against you include current and previous partners, persons with whom you share a child, parents, siblings, cohabitant, and other blood relations.

Types of Restraining Orders

Different restraining orders may be called upon for repeat violence. They include:

  1. Emergency protective order

    An emergency protective order is issued when the court or law enforcement believes the victim is in immediate danger of violence. A person cannot request an emergency protective order. The order lasts a maximum of seven (7) calendar days. The victim is supposed to file a petition for a restriction order before this time elapses. Circumstances that call for an emergency protection order include:

    • The officer believes there is a present danger for domestic violence

    • A child is at risk of being subjected to violence or abuse

    • An older person or a dependent adult is in danger of violence

    • An emergency order will prevent violence against the parties at risk

    If you live with the victims in the house, you can be ordered to leave the premises until the 7-day period elapses.

  2. Temporary restraining order

    A temporary restraining order is one issued after the petitioner presents an affidavit or statement of facts. The order is given before until a formal hearing is conducted. A temporary restraining order lasts between twenty (20) and twenty-five (25) days after which you can receive a permanent restraining order.

  3. Permanent restraining order

    The restraining order lasts between three (3) and five (5) years and can be renewed three (3) months before the existing order expires.

Consequences of A Repeat Violence Restraining Order

When you are issued with a restraining order, your life automatically changes. You will have to adjust many of your activities to keep yourself from violating the law. Consequences of a protective order include:

  • No contact with your spouse, children or any family member indicated in the order

  • Difficulties in finding employment

  • You will have to move out of your home or shared residence where you were living with the victim

  • You may be required to relinquish some rights, e.g., phone rights and property

  • Attend a 52-week batterers program

  • Depending on the type of restraining order taken by the victim, you could spend many years having to follow the restraining order.

When you violate the conditions of the restraining order, the consequences become even more severe. You can be charged with a misdemeanor and a felony for repeated violations. You are also found to be in contempt of court for violating the order.

You will have violated the restraining order when:

  • You call, text or email the victim even when the restricting order prohibits communication

  • You visit the home or workplace of the victim or places that you know the victim frequents, even if you do not speak to them

  • Speaking or threatening the victim, which is considered aggressive conduct

  • You physically injure the victim or expose them to a risk of physical injury

What Happens When You Are Charged With Violating A Restraining Order?

When you violate a restraining order, the victim has the right to report you immediately. You could be arrested and face criminal charges for the violation. The prosecution has to prove the existence of three (3) elements for it to qualify as a violation.

  1. The Restraining Order Is Legal: a legal restraining order is one that was lawfully issued by a judge for a probable cause and belief that the victim was in a risk of physical injury from the defendant. Your lawyer could determine if the restraining order against you is legal by checking whether the issuing court had jurisdiction to issue the order and whether there was a legal basis for issuing the order.

  2. You Must Be Aware of the Restraining Order: the court requires that the person against whom the order is issued, be notified of the existence of the order. This could include an oral statement from the judge (if present in court), a written statement from the party who presents the order to the named person and verbally by the officer who is responsible for enforcing the order when they realize you are not aware of its existence. Also, you must have had enough time to read and understand the details of the order.

  3. You Must Have Violated the Order Intentionally: violating a protective order requires you to intentionally engage in activities that are in direct violation of the prohibited actions. For instance, calling your spouse or ex or visiting their home. Accidental violations such as bumping into the person cannot be charged as violations. However, you have to break the contact immediately by leaving the area promptly and avoiding any communication with the victim.

Legal Defenses When Facing Charges For Violating A Repeat Violence Restraining Order

Your restraining order attorney can use legal defenses including:

  1. Lack of knowledge

    You can be genuinely unaware of the existence of a restricting order against you. When the officer arresting you realizes that you are not aware, he or she will inform you about the order, and its conditions. You will then be held liable for any subsequent violations.

  2. Lack of intent

    You can justify your lack of intent by indicating that meeting with the victim was not intentional; neither have you made any attempts to contact or communicate with them.

  3. False accusations

    Restraining orders are issued to protect people with whom you have had close personal contact with them. Due to the nature of these relationships, it is likely for someone to make a false accusation that you violated the order so that they can take revenge or you or vent out their anger. In such cases, your restraining order lawyer will help you establish your innocence.

  4. Invalid order

    The order must be valid for you have violated its terms. If you feel your order is invalid, you can inform a lawyer even before you are accused of a violation.

Penalties For Violating A Restraining Order

In most cases, violation of a restraining order is punished as a misdemeanor. The penalties include a sentence of up to one (1) year in county jail and a fine of one thousand ($1,000) dollars at most. In other instances, the judge, at their discretion, may decide to issue probation sentencing. The probation sentencing comes with a set of conditions that must be met to satisfy the court. These conditions include:

  • Attending mandatory classes such as anger management, substance abuse classes, and domestic violence classes. Each training program lasts for a court specified period and must be at a court-approved institution

  • A mandatory payment to a battered women’s shelter

  • The defendant must pay victim restitution to cover any medical or other expenses incurred due to their offense.

Repeat offenses committed within seven (7) years of the last crime are punished as a wobbler. A misdemeanor charge will be punished as above while a felony attracts a sentence of sixteen (16) months, two (2) or three (3) years in state prison and a maximum fine of ten thousand ($10,000) dollars. A felony conviction can also be punished with formal probation.

If you cause physical injury on the victim during the violation of a restraining order, you will receive a statutory sentence for a minimum of thirty (30) days in county jail. If the victim suffers injury and it is your second violation in one year, you will be punished by either a county jail term of six (6) to twelve (12) months or a state prison sentence of sixteen (16) months, two (2) or three (3) years.

Your lawyer may enter a plea bargain to have the judge stay on the sentences for causing physical injury by presenting any mitigating factors, the fact that you are remorseful for your actions and what you are doing towards establishing your understanding of the importance of the restraining order to the victim. When the judge accepts the plea bargain, you can spend forty-eight (48) hours for the six-month sentence and thirty (30) days for the one-year sentence.

A restraining order automatically makes you ineligible for owning or using a gun. You will, therefore, receive an order to either release your firearms to the local law enforcement or sell them to a licensed firearms dealer. Owning or possessing a gun when there is a restraining order against you is a misdemeanor offense attracting a sentence of up to one (1) year in county jail and a maximum fine of one thousand ($1,000) dollars. Purchasing a firearm during this period is a wobbler offense charged as a misdemeanor with penalties as above. For a felony, you may face up to three (3) years in state prison and a maximum fine of one thousand ($1,000) dollars.

Offenses You Can Be Charged With After A Repeat Violence Restraining Order

The court allows the victim to file criminal charges against you even after getting a repeat violence restraining order. In other cases, these crimes can lead to the issuance of a repeat violence restraining order. These offenses include:

  1. Domestic Violence

    Many restraining orders are issued for domestic violence cases. Domestic violence involves any harm or threat of harm to an intimate partner, including a spouse, ex, a person whom you are dating or a current or former cohabitant.

  2. Stalking

    It is illegal to harass or threaten a person to an extent where the person fears for their safety and that of their loved ones. Stalking is usually charged as a wobbler offense as follows:

    • A misdemeanor offense is punished by a maximum term of one (1) year in county jail with a fine not exceeding one thousand ($1,000) dollars

    • A felony is punished by a maximum of three (3) years in state prison and a fine of not more than ten thousand ($10,000) dollars

    You can also be charged with cyberstalking or indirect cyber harassment. Cyberstalking or harassment are acts committed on the internet to cause fear to the target.

  3. Criminal Threats

    You can get a restrictive order for issuing criminal threats. The law defines criminal threats as willfully threatening to commit a crime that will result in significant bodily injury or death to the other person. The threat can be made verbally, in writing, or through an electronic communication device.

    You can be charged with criminal threats even if you never intended to act on the threats. The three elements of criminal threats include:

    • A specific and equivocal threat to kill or injure someone

    • The person becomes reasonably scared for their safety, that of friends or family

    • You communicate orally, through electronic means or in writing

    Criminal threats are prosecuted as wobbler offenses. As a misdemeanor, you get up to one (1) year in county jail and up to four (4) years in state prison for felony offenses. You also get a strike for each criminal threat conviction under the California three strikes laws.

  4. Elder Abuse

    Elder abuse refers to physically, emotionally, or financially abusing a person aged sixty-five (65) or older. When you are issued with a restraining order for elder abuse, you can also be charged for elder abuse (PC 373.6). As a misdemeanor, elder abuse is punishable by a county jail term of up to one (1) year. For felony offenses, you can get up to four (4) years of imprisonment in a California state prison.

  5. Vandalism

    Vandalism is the crime of damaging, defacing, or destroying someone's property. Vandalism covers acts of maliciously destroying property you or the victim shared, or their individual property. Some of the most common cases of vandalism while a protection order exists include but are not limited to:

    • Breaking utensils you and your spouse or partner own

    • Slashing your exes tire

    • Using graffiti on their walls

    Vandalism is punished depending on the value of the damaged property and your criminal history. The penalties for a misdemeanor charge include a sentence of between one (1) and three (3) years. You may also be required to pay a fine not exceeding ten thousand ($10,000) dollars, or pay both the fine and spend time in jail. The fine may be higher, depending on the extent of the damage.

  6. Contempt of Court

    You are said to have shown contempt of court when you show disrespect to the court process. In this case, willfully disobeying the restriction order. You can defend your actions by indicating that:

    • You had no intention of violating the court order

    • There were mitigating factors that made it difficult to comply with the court order

    • You were not aware of the court order

    • You were falsely accused

    When found guilty of contempt of court, you can be punished by six (6) months in county jail and a fine of not more than one thousand ($1,000) dollars.

    In some cases, the judge may decide to issue more penalties, including imprisonment in state prison. Some of the circumstances that can lead to additional penalties include:

    • Violating a domestic violence or elder abuse protective order

    • Violating a restraining order with a prior stalking record

    • Possessing a firearm while the restraining order is valid

Lifting A Restraining Order

You can request for the modification of a restraining order or a motion to lift the order. You can also file a motion to modify conditions of a pretrial release if you are still facing criminal charges. The proposal must include:

  • The consent of the victim to lift the restraining order

  • The mutual desire by the victim and defendant to have contact

  • The victim’s consent is voluntary, not coerced

  • The victim is not afraid of the defendant

The court will conduct a hearing to determine whether it is reasonable to lift the order. The judge will give their decision to lift or not lift the restraining order.

Find a San Diego Restraining Order Attorney Near Me

At the San Diego Restraining Order Attorney, we help our clients with all issues regarding restraining orders. We will help you get a restraining order against someone who threatens your safety or that of your loved one. Also, If you have a restraining order against you, we will work with you to have the terms of the order changed, have the order lifted, and offer criminal defense services if you are accused of violating the order. Call us today at 619-728-6293!