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San Diego Restraining Orders are not bulletproof

On Behalf of | Nov 14, 2014 | Firm News |

“There is going to be an endgame”. This is what a client of mine said yesterday after getting him a San Diego restraining order a few months ago. He knows that although he is protected by the law. The restrained person will have no doubts in crossing over the line. He is probably right. There is not much the police nor myself can do. I tell him to ensure you get proof. If he can show proof…a snapshot, video, etc. The restrained would be arrested.

The key is to be vigilant and know it can happen. You protect yourself and your belongings. The most important thing the restrained can do it never communicate to the person. This could be an ex who just wants to talk or send a late night text. The more you invite them in the weaker a San Diego restraining order becomes.


Getting a temporary restraining order and final restraining order in cases of domestic violence is not difficult in New Jersey, but there are some stumbling blocks and in the end, it’s just a piece of paper. “We have always had very liberal laws with regard to domestic violence in New Jersey with the idea of separating the parties and not having another, possibly more, serious incident,” said Saint Peter’s University Criminal Justice Prof. Kevin Callahan, a retired Superior Court judge. Following a domestic violence incident, a victim need only call the police and ask for a restraining order. During court hours, the victim goes before a municipal court judge and based on the victim’s claim of being in fear, a temporary restraining order is granted if it is truly a “domestic” incident. During off-hours it is done by phone, Callahan said. Callahan said he could not say a temporary restraining order is granted in every single case but that he would be surprised if a judge would decline to issue one. Ten days later in Superior Court Family Division, hearings are held on the allegations before a judge makes a decision on whether to make the order permanent or to extend the TRO. The judge can also terminate the TRO if he finds it was not a true “domestic” situation, if there is not enough evidence or if he does not believe the accuser. Depending on the nature of the original incident, the prosecutor may file criminal charges. Also, violating the order is a criminal offense. But in Superior Court, lawyers are involved and it is often he said/she said, and JoanEileen Coughlan, director of Domestic Violence Services at WomenRising noted “There is a burden of proof, so to speak. It’s not really difficult to get a final but you do have to go before the court and say everything that happened, and that can be difficult.” She also noted that if the accused has been removed from the home, the person may be difficult to find and “it is more common than you might think that the person is not served” with the order, meaning there can be no violation of the order. Sometimes the defendant does not show up in court, causing a continuance which drags out the process. But there are many DV victims who do not seek a restraining order even though they should, said Tina Morales, a mental health therapist at North Hudson Community Action who works with domestic violence victims. “I have victims in my group for two or three weeks and they come back in a year and it’s usually manipulation, ‘I’m going to change’ and it’s a vicious cycle,” Morales said. “Sometimes there are threats and intimidation to have control over the victim.” Coughlan noted that in the end, restraining orders “are not bulletproof, they are just a piece of paper, but it keeps a paper trail on what is happening and if he keeps getting involved, then the court knows what’s happening.”

Hire a Proactive, affordable, and quality defense when you are facing San Diego DUI charges. Whether you have been charged of a San Diego DUI, Poway DUI, La Mesa DUI, Santee DUI, Mission Valley DUI, Clairemont DUI, Point Loma DUI, La Jolla DUI, Carmel Valley DUI, Mira Mesa DUI, Pacific Beach DUI, Del Mar DUI, Carmel Valley DUI, Encinitas DUI, Oceanside DUI, Ocean Beach DUI, Escondido DUI, Vista DUI, San Marcos DUI, Carlsbad DUI, El Cajon DUI it is vital you need to hire an attorney who knows how to defend your rights and can determine if the government can prove their case. Contact the Law Office of Mark Deniz now for a free case evaluation at 858-751-4384 or send an email to [email protected].

A San Diego Restraining order is obtained by filing a petition with the local Court alleging that someone within the “domestic unit” has used threats of violence, is stalking or has inflicted injury upon the requesting party.These TRO’s are generally the easiest to obtain if indeed there is evidence of one of the qualifying criteria. Like I mentioned above a San Diego Restraining order requires one to be vigilant as well.

The next hearing is to determine whether there will be a permanent restraining order, which will usually last three years. At this hearing, the the Judge must find that evidence establishes by a preponderance of facts that one of the elements is satisfied. The Domestic Violence Restraining Order will appear on all public record data bases (CLETS) and will often be viewed by potential employers and others when seeking jobs, licenses, loans, etc. Attorneys can often defend requests for DVRO’s when they are being used inappropriately for reasons such as leverage in upcoming divorce proceedings, child custody hearings, and for revenge for infidelity and other reasons. It is key to have evidence to show the petitioners anger and abuse of this process.

The Domestic Violence Restraining Order will contain a variety of different orders such as a stay away of often at least 100 yards from the person protected. A “kick out” order causing the person to have to move from any family residence; stay away orders for children and relatives; orders to not contact by phone, e-mail or any other written or electronic communication; orders not to intimidate or persuade not to come to Court or testify against the other party. Worst of all, the judge can order a 52 week batterers treatment program.

Violation of DVRO or stay away orders can be prosecuted under Penal Code 136.1 and 136.2. The charges could be brought either as a felony or a misdemeanor and can carry jail time or imprisonment in the CDC if convicted. Criminal Charges can also be brought under Penal Code 166 as contempt of a valid Court Order if the defendant knew of the order, failed to obey the order if having the ability to do so, and the failure was willful. Criminal contempt charges are often treated very harshly by the Court. As a former San Diego prosecutor I cannot stress they will prosecute these cases.

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