Domestic Violence and Restraining Orders in California
Domestic violence is a very serious problem in the United States, and California is no exception. As a result, prosecutors have become particularly zealous in prosecuting domestic violence crimes in California. While this is great in cases where domestic violence has legitimately occurred, it can be disastrous when false allegations are made by a vengeful partner, spouse, significant other, or family member to get the upper hand in a relationship.
Domestic violence charges and convictions can have serious repercussions – including time in prison and monetary fines. One of the most common end-results of domestic violence charges is a restraining order.
While a restraining order may not seem as serious as jail time it can have significant long-term consequences including the loss of gun rights, loss of employment opportunities, and limitations on the ability to travel freely. If you have been accused of domestic violence in California, it is important to contact an experienced San Diego criminal lawyer immediately. An attorney will be able to explain the charges against you, develop a strategy, and ensure that you are afforded a fair and impartial hearing.
What Makes a Relationship “Domestic”?
In California, inflicting an assault, battery, or criminal threat against anyone is a crime. Domestic violence occurs when emotional, physical, and/or verbal abuse occurs between two people who have a close, intimate, or familial relationship. When the alleged perpetrator and the victim are related in any of the following ways, the relationship is considered domestic:
- Spouses, whether by marriage or common law;
- Partners, a non-married, intimate relationship;
- Close blood relatives and immediate family members;
- Roommates or cohabitants (present or former, heterosexual, homosexual, bisexual, or transsexual);
- Parents of a common child;
- Couples involved in a dating relationship; and
- Couples engaged to be married.
Penalties for a Domestic Violence Conviction
The time you could spend in jail for a conviction of domestic violence will largely depend on whether there were injuries to the other person, how serious those injuries were, and your own personal criminal history. If you have a prior record for domestic violence you are more likely to be sentenced to longer terms of imprisonment.
It is against the law to engage in the willful and/or unwanted touching of another person. The criminal penalties for battery are heightened when the alleged perpetrator and victim are in a domestic relationship. A conviction of domestic battery can carry up to one year in jail, a fine of up to $2,000, and/or probation and completion of a California batterers’ program.
Corporal Injury to a Spouse or Cohabitant
California addresses especially violent or harmful domestic battery under this statute. If an alleged perpetrator violently strikes or harms a spouse or cohabitant and causes a visible wound or injury, he or she may be charged under this aggravated statute. The wound need not be serious, and can be as minor as a scrape or bruise. If convicted, a perpetrator may face up to four years in prison, fines of up to $6,000, be required to donate money to a battered women’s shelter, and reimburse his or her victim for costs related to the injury.
If an alleged perpetrator has any prior convictions for domestic battery, sexual battery, or assault with a deadly weapon other than a firearm or by means of force likely to produce great bodily injury, the penalties are aggravated. If convicted, a repeat offender can face up to five years in prison and fines of up to $10,000.
Domestic Violence Restraining Orders in California
In California, it is common for victims of domestic violence to seek a protective order from a court. These protective orders – generally known as domestic violence restraining orders (DVRO) – can be permanent or temporary, depending on the status of pending domestic violence charges or complaints. The domestic violence restraining order is a court order signed by a judge that instructs an alleged domestic violence abuser to stop the violent and/or abusive behavior. Failure to abide by a domestic violence restraining order can result in serious legal repercussions.
There are three distinct varieties of a domestic violence restraining order. Each can be sought during a different phase of a domestically violent relationship.
Emergency Protective Order. An emergency protective order is issued if a judge believes that a victim is in “immediate and present danger of domestic violence” after law enforcement responds to a domestic violence call. The order lasts for up to 5 business days or 7 calendar days, and is intended to allow victims to formally approach the court to request a domestic violence restraining order. The emergency order can require an alleged abuser to be removed from a home, impose a restriction on communication between the victim and abuser, and assign temporary custody of any children in the relationship.
Temporary Restraining Order. A temporary restraining order does not require an immediate threat of danger, but does require a victim to furnish the court with an affidavit and/or statement of facts supporting the request. A judge can approve a temporary restraining order without a formal hearing. The order will be in effect until a formal hearing is set for domestic violence allegations.
Permanent Domestic Violence Restraining Order. A permanent domestic violence restraining order can be granted after a formal hearing. The order will last for three years after it is issued. A permanent domestic violence restraining order may be renewed by the protected victim before the order lapses.
Consequences of A Domestic Violence Restraining Order
Other than requiring an alleged domestic violence abuser to stay away from a victim, what other consequences may a domestic violence restraining order have? If you are served with a domestic violence restraining order, it may order you to:
- Refrain from contacting the subject of the order;
- Refrain from contacting your children;
- Relocate from your home;
- Keep a certain distance from your home or place of work;
- Pay child and/or spousal support;
- Pay certain familial bills, legal costs, and attorney’s fees;
- Stay away from any pets you share with the subject of the order;
- Refrain from changing insurance policies;
- Refrain from making significant changes to community assets or incurring substantial debt;
- Prohibit purchase or possession of a gun and ammunition; and
- Complete a year-long batterer counseling program.
Domestic violence restraining orders are entered into a database and accessible to any law enforcement officer, regardless of location. If you are served with a domestic violence restraining order and relocate, you must contact your new local police and alert them to your order.
False Allegations of Domestic Violence
Unfortunately, there are some cases that are based on false allegations of domestic violence. In some situations, a person may become angry when a relationship ends and want to inflict pain and suffering. In other situations, a spouse may want total custody of a child and use domestic violence allegations as leverage in a custody battle. Whatever the reason, false accusations of domestic violence are all too common.
In California, there are little to no repercussions for those who make false claims of abuse. According to Stop Abusive and Violent Environments (SAVE):
- There are zero district attorneys in the United States who regularly prosecute false allegations of domestic violence;
- About half of all restraining orders have no allegations of physical assault or abuse;
- About 70 percent of restraining orders are later found to be false and/or trivial; and
- Each year, an estimated 700,000 charges of domestic violence are later found to be false.
This is, of course, not to say that domestic violence is not a very real and very serious problem for many Californians. Unfortunately, false allegations hurt those who are making perfectly truthful claims in an effort to end truly violent relationships and find safety.
If you have been accused of domestic violence – whether you honestly made a one-time mistake or you are perfectly innocent of the charges against you – it is important to have solid legal assistance from start to finish. An experienced San Diego criminal defense attorney can help to ensure that your rights are protected and that you receive a fair and impartial hearing.
Getting the Legal Help You Need for Charges of Domestic Violence
Even if you believe the charges against you are false or inconsequential you should contact an experienced criminal defense attorney as soon as you are aware of any charges pending against you. The state of California takes accusations of domestic violence very seriously, and fighting the charges without the assistance of an attorney is not recommended.
Conviction of domestic violence charges and/or domestic violence restraining orders can have significant impacts on your day-to-day life. Contacting the Law Office of Vikas Bajaj, APC – if only to learn about the legal process and about how we may be able to help – is the single most productive and positive step you can take in this situation.