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Criminal Restraining Order

What is a Criminal Protective Order?

A Criminal Protective Order is an order a judge makes to protect a witness or victim of a crime. It tells the restrained person to stay away from and not to hurt, threaten, or communicate with the other person. It is often issued after an Emergency Protective Order.

There are two kinds:

How Do I Get a Criminal Protective Order?

To get a Protective Order, the District Attorney must show the court the defendant has:

  • Hurt you,
  • Made you feel afraid,
  • Tried to get you to not testify, or
  • Threatened to do any of these things.

It may be issued by the judge after the defendant (the restrained person) is arrested, charged or found guilty of certain crimes against the victim. The case is filed by the District Attorney on behalf of the People of the State of California.

If the District Attorney declines to file charges against the other party, there are other types of Protective Orders that you can file on your own. You can read more about the different types of Protective Orders, or you can get more information from the resources listed below under "How to Get More Information."

What Can the Court Do to Protect Me?

The court can order law enforcement within its jurisdiction to protect you and your immediate family members who live with you. Sometimes the court will protect family members who live reasonably close to your home.

Does Law Enforcement Have to Protect Me?

Yes. Law enforcement must follow the Court’s order to protect you, but only for the time period set forth in the Protective Order.

When Will the Judge Make a Decision on the Protective Order?

When the defendant has been charged with a crime and appears in court for the first time, a decision will be made about the Protective Order. If you want to request a Protective Order, you should contact the prosecutor or speak to the Victim Witness staff. If the victim is not present, the judge will read the papers in the file and decide if there is a good reason to issue a Protective Order for you.

How Will the Defendant Know There is a Protective Order?

The defendant will be served a copy of this Protective Order. The order will say exactly what things he or she cannot do.

How Do I Get a Copy of the Protective Order?

If you are in court, the deputy will give you a copy of the Protective Order. If you are not in court when the judge makes the order, then get a copy from the prosecutor’s office.

KEEP A CERTIFIED COPY OF THIS ORDER WITH YOU AT ALL TIMES in case you need to show it to a Law Enforcement Officer. If box 13 or 14 on page 1 is checked, you should also carry a certified copy of the most recent child custody or visitation order issued by the Family, Juvenile, or Probate court.

How Long Does It Take for Law Enforcement to Find Out about the Protective Order?

The court electronically transmits the information usually within 24 hours. Law enforcement has electronic access to copies of the Protective Orders.

What Do I Do If the Defendant Does Not Follow the Order?

If the defendant does not follow the order, call the police immediately. The restrained person can be arrested and charged with a misdemeanor, a felony, or a contempt of court. Taking or concealing a child in violation of the order may be a felony and punishable by confinement in state prison, a fine, or both. Traveling across state or tribal boundaries with the intent to violate the order may be punishable as a federal offense under the Violence Against Women Act.

How Do I Get the Judge to Change My Criminal Protective Order?

A Protective Order may be modified by the sentencing court in the county in which it was issued throughout the duration of the order. Either the protected person or the restrained person (defendant) can request that the requirements in the Criminal Restraining Order be changed. You can request that the level of protection be increased or decreased. Read page 1 of the Information and Instructions to Petition the Court to Modify the Protective Order (L-402) if you are the protected person for more information. If you are the defendant, read page 2. You should discuss the changes with the Victim Witness Office. Once you are better informed of the process, you can ask the Criminal Court to change the Criminal Protective Order by filling out a Petition for Modification of Protective Order (L-404) . File it with the court that ordered the Protective Order. A hearing date will be set and the parties will be notified to appear by the clerk. Each party has the right to attend and oppose the Petition.

What Is the Difference Between a Criminal Protective Order and a Civil Restraining Order?

Criminal Protective Orders and Civil Restraining Orders are not the same. You can read more about the different types of Protective Orders.

What If I Have More Than One Type of Protective Order?

It is not uncommon to have more than one type of Protective Order. A party may seek a restraining order in family law or civil even when there is a Criminal Protective Order. Tell the judge and the District Attorney if you have another restraining order. The Criminal Protective Order takes precedence over other conflicting orders. That means if the criminal order is different from another restraining order, it will supersede any other orders as the primary order that must be obeyed. For example, if the family law order allows contact and the criminal order states "no contact", then the parties are not allowed to have contact.

Guns and Firearms

The judge may order that the restrained person not own, possess, buy or try to buy, receive or try to receive, or otherwise get a gun while a Restraining Order is in effect. If a restrained person violates this order, it can result in jail and/or $1,000.00 fine. The restrained person must sell to a licensed gun dealer or turn in to a law enforcement agency any guns or other firearms that he/she has or control in accordance with the order of the court. If the restrained person does not obey the court order, he or she can be charged with a crime. The court may set a review hearing to determine whether the defendant has complied with the requirements to relinquish the firearm(s). At the hearing the defendant has the opportunity to give information to refute that he or she owns any firearms or to show that he or she has complied with the requirement to relinquish those firearms. If the defendant fails to appear for the hearing, a warrant may be issued for his or her arrest.

How to Get More Information

FOR MORE INFORMATION:

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