In the State of California, an individual or petitioner may ask the court to issue a “protective order” against an individual (“person to be restrained”) in order to protect the petitioner from:
• destroying personal property,
• disturbing the peace,
• threats, or
• physical abuse.
The protective order will include specific conditions or orders for the “person to be retained” to follow the court order. If the “person to be restrained” violates any of the orders within the protective order, that individual could face a misdemeanor or felony criminal charge.
In the State of California, there are four types of restraining orders that could be filed against an individual.
1. Civil Harassment Restraining Order
2. Domestic Violence Restraining Order
3. Elder or Dependent Adult Abuse Restraining Order
4. Workplace Violence Restraining Order
In California, domestic violence restraining orders are filed by petitioners who are alleging abuse and the petitioner has a close relationship with the person to be restrained such as an ex-wife, ex-boyfriend, people who live together but more than just roommates, a child, or other family member.
To be found guilty of violating a domestic violence restraining order, the prosecution needs to prove three key elements.
1. A valid protective order was in place and was legally issued by a judge.
2. The defendant knew of the protective order, the existence of the order and the terms found within the order.
3. The defendant knowingly and intentionally violated the terms of the order.
When a client is facing a criminal charge of violating a domestic violence restraining order, we thoroughly investigate the case and evidence that will be used against our client. This investigation along with witness statements and an interview with our client will determine the direction of our client’s defense strategy. The following are a few of the basic defenses used in a violating a domestic violence restraining order criminal case.
Defense Strategy #1 – Our client did not have any knowledge of the domestic violence restraining order. One of the important elements of the prosecutor’s case is proving that the defendant was aware of the court issuance of a protective order against the defendant. If the facts and circumstances suggest this is the best strategy for our client, we will build our client’s defense around his or her “lack of knowing”. In addition, this defense strategy can be effectively used in situations where the defendant can show that he or she did not have the opportunity to read the order.
An individual (“petitioner”) asks the court to issue a domestic violence restraining order in an emergency court hearing. The defendant was not notified of the hearing. The judge issues the protective order. The defendant contacts the “petitioner” and the defendant unknowingly violates the protective order. The defendant is arrested by law enforcement and booked on a violation of a protection order criminal charge. If you haven’t been given the proper and legal notice of a protective order filed against you, California Penal Code states that you have not violated the law and you cannot be convicted of the criminal charge.
Defense Strategy #2 – Our client lacked the intention of violating a domestic violence restraining order. The “Lack of Intention to Violate” defense is another effective approach aimed at blocking one of the elements necessary for the Prosecution to obtain a guilty verdict against our client. Under the California Penal Code, even if a defendant was aware that a domestic violence restraining order was issued and the defendant was aware of the specific orders, if the defendant violated the order unintentionally, the defendant can be found “Not Guilty” of violating a protective order.
The “person to be restrained” receives a court ordered domestic violence restraining order. The “person to be restrained” is aware of the order and understands the terms of the order. In the order, the “person to be restrained” is ordered to stay at least 100 feet away from the petitioner. However, the “person to be restrained” walks into a restaurant and petitioner is already inside the restaurant. If the “person to be restrained” was unaware that the petitioner was already in the restaurant, this violation was accidental, and the “person to be restrained” leaves without making contact with the petitioner, the “Lack of Intent to Violate” defense could be effectively argued resulting in a “Not Guilty” verdict.
A domestic violence charge is a serious offense and a conviction will have lifelong repercussions. If you or someone you love has been arrested and charged with a domestic violence offense, it is critical that you speak with an experienced San Jose criminal defense attorney promptly. Please call 408.277.0377 today to schedule your initial consultation with Attorney Wesley J. Schroeder.
Wesley Schroeder, Attorney at Law
181 Devine Street
San Jose, CA 95110
Monday – Friday 9am-5pm or by appointment