Applying for a Criminal Restraining Order in California
A judge issues a criminal protective order to protect a victim of a crime or someone who has witnessed a crime. When such a restraining order is issued, the restrained person, (the person who poses a threat) is required, to keep away from, not to communicate with, and not threaten or hurt, the protected person.
The terms of a criminal restraining order take precedence over any other restraining orders that you may have. Inform your attorney if you have any other restraining orders.
Types of criminal restraining orders
A criminal restraining order can be issued in two different scenarios:
- Form CR-160 -Criminal Protective Order-Domestic Violence, is issued in domestic violence cases,
- Form CR-161-Criminal Protective Order-Other Than Domestic Violence, is issued in cases that don’t involve domestic violence.
Both types of criminal restraining orders are issued during criminal case proceedings in court.
You can talk to the prosecutor before the hearing regarding getting a protective order.
The hearing
During the hearing, the district attorney must prove the following to show that you need a protective order:
That the restrained person has
- Hurt you,
- Made you feel scared,
- Tried to prevent you from testifying,
- Threatened you.
During the defendant’s first appearance in court, the judge will decide about issuing a restraining order. You don’t have to be in court for the judge to issue a criminal protective order to protect you.
After the hearing
If you attend the hearing, you can get your copy of the restraining order in court. If you don’t attend, the prosecutor’s office (district attorney’s office) will issue you with a copy. The restrained person is also given a copy of the protective order in court.
You should always carry a copy of the restraining order with you to show to law officers if required. If you have any custody orders or visitation orders from the family court, also carry a copy with you. The copies must be certified.
You will get protection from law enforcement
The court will notify law enforcement of your protective order, within 24 hours from when it’s issued.
The terms of the order require law enforcement to protect you, people who live with you and even family members who live close to your home. You will only receive protection from law enforcement during the time stipulated by the protective order.
If the defendant does not obey the order
Failing to uphold the terms of a restraining order can lead to arrest, followed by misdemeanor of felony charges. The defendant can also be charged with contempt of court.
If the violation of the order involves a child, the defendant may be charged with a felony and sentenced to state prison.
Additionally, if the restrained person goes across state boundaries with the intention of violating the restraining order, he or she can be charged with a federal offence.
Changing the terms of a criminal protective order
Page 1 of form L-402-“Information and Instructions to Petition the Court to Modify the Protective Order”, contains instructions that will guide you if you feel that there’s need to increase or decrease the terms of the restraining order. Page 2 of the same document contains information useful to the defendant for the same purpose.
Once you file form L-404-“Petition for Modification of Protective Order” with the court, a court hearing will be set and the modification may or may not be granted.
