The violation of a protective order, commonly known as a restraining order, may attract several penalties that could be detrimental to your criminal record. As a violator of an injunction to keep you out of contact with the applicant of the restraining order, you will face charges for disobeying the injunction document's rules. Such violations may occur in different ways, including coming into contact with the applicant unintentionally. Other times, the applicant may contact you first, creating an avenue for you to break the restraining order. In these cases, the events leading to the violation offense are unfair for your case, primarily because the applicant seeking protection from you is the instigator of the crime. Consequently, you are likely to face punishment from such circumstances and more, especially if you are unaware of the elements of the crime of violating a restraining order.
Therefore, it is beneficial to consult an experienced criminal defense attorney who is well-versed in statutory provisions, to provide a clear outline of what to avoid when served with a restraining order. At Arnold Law criminal defense office, you will receive the best legal advice and support in a court litigation process after facing violation charges. With our years of experience providing criminal defense services, you can rely on us to deliver the best defenses and strategic arguments in court, to create a better chance of obtaining a favorable case outcome.
Defining a Restraining Order
When you are served with a restraining order, the content of the document orders you to avoid making any contact with the protective order applicant, as provided in section 741.30 of the Florida Statutes. The prohibition of creating contact will include physical and virtual communication like texts and emails. Usually, the applicant files for a protective order against you because of a previous altercation you had with him/her. The most common circumstances that lead to one party serving a restraining order on another is when domestic violence ensues. In such situations, the applicant may have a genuine fear of his/her safety when you are around, giving the person reasonable grounds to apply for the protective injunction.
In other cases, you may receive a restraining order when a person other than your spouse notices a worrying pattern. You may follow him/her without any communication to clarify your intentions. If the person gets reasonably apprehensive of impending harm, he/she can also apply for a restraining order to keep you away from creating close contact that could cause the person to feel unsafe.
Moreover, section 784.046(7) of the statute gives the presiding judge discretion to determine the duration that the restraining order will remain in effect. Subsequently, the protective order may last for a few months or years, while some may have a permanent effect, especially when the causative actions you engaged in were violent and caused severe harm to the applicant.
Regardless of the duration, the orders will remain the same and require you to follow them strictly. However, in most cases, it may be difficult not to violate different instructions mentioned in the protective order when some of the instructions are unclear. Thus, you may face an arrest for such violations, leading to a criminal trial for the offense.
Elements of the Crime that the Prosecutor Must Prove
Upon facing arrest and arraignment in court, your criminal trial will begin soon after. During a criminal trial stage, the prosecutor holds the burden of proof to demonstrate that you acted in violation of a protective order. To do so, he/she must gather all sources of evidence relevant to proving his/her claims before the judge issues the final verdict. The three main elements of the crime for restraining order violations are:
You Knew of the Existence and Effect of the Restraining Order
The first detail that the prosecutor must prove is that you were aware of the restraining order provisions, including what you were prohibited from doing. Moreover, the prosecution team should prove that you knew of such violations' possible consequences, including a conviction or fine penalties if you went against the rules. The prosecutor will rely on several sources of evidence to prove your knowledge of the existing protective order filed against you.
Firstly, he/she may present documents to show a letter of service that was sent to your attention by postal mail, delivery, or fax. A service involves presenting you with documents that contain several notices that may include the applicant's intention to move to court. However, in this situation, the documents you are served with are a copy of the restraining order rules. The prosecutor may prevail in proving that you were aware of the existing protective injunction, especially if you signed a document acknowledging that you had received your copy of the restraining orders and that you had read and understood its content.
Secondly, the prosecutor may rely on cross-examination strategies to extract information from you during your witness testimony session. In this situation, the prosecutor may ask you questions that imply your knowledge of the existing restraining order, even if you had denied knowing it was in effect. For example, the prosecutor may ask you the exact measurement of the distance you were supposed to maintain from the applicant who filed for the orders. Answering such a question will give the prosecutor leverage, as he/she will have a basis of making accusations about your knowledge of the restraining order filed against you.
The Restraining Order was to Protect the Applicant from Dangers and Threats you Imposed.
The prosecutor will also have to prove the nature and relevance of the restraining order so that he/she can establish reasonable grounds that persuade the judge to issue you with penalties and fines if found guilty. The prosecution team intends to prove that your violation of the restraining order has severe effects for the applicant who filed it, based on your previous actions or threats.
Subsequently, there may be evidence to show that you were engaged in domestic violence that includes verbal and physical abuse. The prosecutor may call on several witnesses, including the applicant of the restraining order, to testify against you and provide evidence to show that you had put him/her in danger before. Additionally, other sources of evidence may include text messages or emails you had sent to the claimant that included threats of harm. Among other sources, these will be useful for the prosecutor because he/she will prove that the violation order had an important role to play in protecting the applicant. The prosecutor will also show that your violation was a serious offense because it led to the applicant's apprehension of impending harm.
You Wilfully Violated the Restraining Order
Lastly, the prosecutor must prove that you acted willfully in violating the restraining order, meaning that you chose to disregard the rules knowingly. In determining that you acted willfully, the prosecutor must have established that you knew of the existing protective orders filed against you. It would be futile to show a wilful action to violate if you were not aware of the rules. Hence, the prosecutor's argument will involve showing a willingness to contact the applicant despite the knowledge you had about the protective order rules.
Some evidential sources that the prosecutor is likely to use include surveillance footage that shows you sneaking around the applicant to avoid letting him/her notice you as you try to get close. In such a situation, the prosecutor will infer your knowledge of the rules and the wilful intention to violate them, based on your actions. He/she may argue that your efforts to sneak around the applicant's residence or vicinity mean that you knew of the restraining orders and proceeded to violate them.
Alternatively, evidence of your wilful intention may also come from your direct contact with the restraining order applicant by calling, texting, or emailing the person. Here, the evidence will be straightforward because the prosecutor will only have to verify that your contact information matches what is present in the applicant's sources of information.
Actions that Amount to Violating a Restraining Order
Apart from the general elements of the crime that the prosecutor must prove, he/she will also factor into the specific actions you engaged in. If they amount to a violation, you may be eligible to face some punishment or fines. It is essential to learn about these actions, especially if you or your loved one faces charges for the crime. This way, you can understand whether the facts or your case align with any prohibited types of engagement with the applicants to ensure that you undergo a fair trial process. Some of the specific actions that will amount to violating a protective order include:
Visiting the Applicant's Place of Work or School
One of the restrictions mentioned in a restraining order issued by the judge includes avoiding the applicant's place of work or school by maintaining a distance of at least five hundred feet from the area. While it is not practical to make actual measurements of the specified distance, you must stay a reasonable way apart from the area to ensure that you can safely evade any accusations of such a violation.
Depending on the content of the restraining orders, you may not be allowed to get close to the workplace or school, especially when the victim is present. Such terms may be quite extreme and unrealistic to fulfill because you have no way of knowing where the person is at any given time. Therefore, we recommend avoiding the applicant's workplace or school altogether, mainly if you have no urgent or official business to handle.
Getting Physically Close to the Restraining Order Applicant
Usually, protective orders serve to keep you a safe distance from the victim of your past actions, to ensure that you do not pose any immediate threat of physical harm. Hence, you may receive orders requiring you to maintain a distance of at least one hundred feet from the victim or face violation charges. If you happen to make such a violation, it will amount to an offense, despite the challenge of upholding such strict regulations.
While certain exclusions may be considered, you must ensure that you act rationally, without any intention to cause a violation. For example, the judge handling your case may consider dismissing the accusations, especially if you are in the same facility as the applicant at the same time without each other's initial knowledge. For example, suppose you bump into each other in a shopping mall. In that case, the applicant's claims of violating the restraining order may not have reasonable grounds, especially if investigations reveal that you lacked intent or knowledge of the person's whereabouts.
Non-compliance With Child Visitation Rules
If you had a parental relationship with the petitioner of the restraining orders, the court might develop a set of rules to avail you of restricted child visitation rights. Such exceptions are available for couples that experienced domestic violence, whereby you had to move out of your home because of alleged abusing your partner. The judge provides child visitation allowances to ensure that you continue to provide parental support for your children without overstepping on the restrictions that protect the applicant and children from possible harm.
For example, the restraining order may require you to only visit your children on weekends for a maximum of one hour. Moreover, the protective order content may require you to conduct the child visitations in the company of a probation officer, who supervises you to ensure that you stick to the rules and do not cause any chaos. Hence, exceeding the set time limit to see your children or failing to inform the accompanying officer when making the child visitation, among other activities, will amount to the offense of violating a restraining order.
Refusing to Leave the Applicant's Home
When you refuse to comply with the protective orders that require you to move out of the home you shared with the applicant, he/she may report you to the authorities for violation. The situation may worsen when you were the abuser in a domestic violence case that resulted in the need for restraining orders to keep you away from the applicant.
Moreover, if you accessed the person's home under child visitation rights but refused to leave after the restricted period is up, you will also face violation charges for failing to follow the regulations. The situation worsens in such cases if the judge decides to withdraw your visitation rights as punishment for violating the restraining orders. You, therefore, have to follow all the requirements to avoid such adverse consequences.
Responding to the Applicant's Contacts
Since you will be aware of the expectations and requirements listed in the restraining order documents, you are likely to uphold the rules and avoid contacting the applicant, especially on the phone. However, a violation also arises when you engage with the applicant, even if he/she initiated the contact.
For example, if the person calls or texts you, you will violate the orders by answering the call or text. Sometimes, such a person may contact you with malicious intentions to pin down and hold you responsible for your actions. While it may be unfair on your side, it will be up to your criminal defense lawyer to prove that you had no intention of violating the order and that you did not know that the applicant was on the line when picking the phone call, especially if he/she used a private number.
Penalties for Violation of a Restraining Order
The offense attracts misdemeanor charges and penalties where the prosecutor succeeds in proving you guilty of the crime beyond a reasonable doubt. Subsequently, you will face up to one year in jail for the offense. Alternatively, the judge may decide to issue a probation sentence by ordering up to twelve months of probation and a fine payment of up to $1,000.
It is important to note that all the sentences are issued at the judge's discretion, meaning that he/she may enhance or reduce the punishment depending on the circumstances of the case. Sometimes, the facts of your case may lead to additional penalties or separate sentences altogether, primarily if your violation resulted in the harm or injury of the victim who had applied for the restraining order. Such cases often bring about aggravated punishments based on the severity of the consequences you created after defying the restraining orders.
Defenses for Violating A Restraining Order
Upon facing arrest and learning of the charges you face, your criminal defense attorney will help you develop several defenses that can lead to a significant reduction of penalties or a complete acquittal of charges. We recommend working closely with your criminal lawyer as he/she conducts research to help build your case. In doing so, you will disclose important information to your attorney, who will then create the best defenses to help you combat the prosecutor's claims.
Additionally, it is necessary to remember that not all defenses discussed below will apply to your case, as the circumstances leading to a violation of restraining orders vary based on your actions. Some of the possible arguments for the offense are:
There was a Mistake in Interpreting the Protective Orders
It is common for a defendant to misinterpret the information in the restraining order documents in good faith, especially when several specifications are not clear. For example, you may find it confusing to understand whether the restrictions relating to distance away from the applicant's place of work or school include the actual building or the entire compound area when maintaining five hundred feet distance. Therefore, you may end up violating the rules because of a slight misinterpretation you made.
Your lawyer will present the inconsistency in wording that creates an argument that any reasonable person would be prone to misinterpret. From making such a presentation, the judge may consider the defense and decide on the next line of action. Despite the availability of the argument of misinterpretation, it is essential to note that you must also prove that you made a mistake in good faith, in genuine circumstances. If the prosecutor raises any questions that indicate that you wilfully misinterpreted the regulations, your defense may not prevail.
You Did Not Intend to Violate the Restraining Order.
As earlier mentioned, sometimes you and the applicant may end up in the same location without any prior knowledge of each other's whereabouts. For example, if you take a trip outside town and end up meeting with the applicant, you will not be guilty of violating a restraining order because you did not intend to come into contact with the person. Your lawyer must prove that you were unaware of any possibility of meeting with the applicant, to show that you could not form an intention to defy the regulations set in the protective orders.
Sometimes, the defense may also help you combat the applicant's accusations, especially when you suspect that he/she set you up for arrest and trial. For example, suppose the person calls you using a different number to get you to engage in contact. In that case, your defense attorney can raise the defense of unintentional contact with the applicant of the restraining orders. The basis of your argument will be that the applicant concealed his/her identity when contacting you, meaning that you had no way of identifying the person.
Lack of Proper Notice of the Restraining Orders in Effect
In some cases, the victim who applies for the restraining orders may fail to inform you of the application process. Subsequently, you will be unaware of any restrictions of contact that are in effect, meaning that you are likely to violate them without your knowledge. Since such a scenario would create unfair circumstances for your arrest and trial, the judge will allow you to represent a defense indicating that you did not know of a restraining order issued against you.
Working with your lawyer will help present persuasive evidence that you did not receive any served documents, nor did the applicant make any contact to inform you of the orders. If the judge is satisfied with the genuineness of your evidence and statements in defense, he/she can dismiss the charges and order for your acquittal.
Find a Criminal Defense Attorney Near Me
The terms and regulations of a restraining order are often stringent and easily violated, especially when you are always under scrutiny by the applicant who filed for the rules. Sometimes, you may undertake unintentional activities that lead to violation charges, even when you genuinely believe you have not committed an offense. With the help of Arnold Law, you will receive the best criminal defense services to help you combat charges related to violating a restraining order. We are happy to support you throughout the litigation services by providing sound legal advice and persuasive legal defenses in court. To get in touch with us, give us a call at 904-264-3627.