Domestic Violence Criminal Charges and Domestic Violence Restraining Orders

In many cases, a person who is facing domestic violence charges in the Los Angeles area may also face the prospect of having a domestic violence restraining order filed against them. In fact, a person may have to go to criminal court on domestic violence charges and also go to family or civil court for a domestic violence restraining order on the same set of facts. It is critical to understand the key differences between domestic violence criminal charges and the restraining order process and a person who has been arrested on suspicion of domestic violence should immediately speak with a skilled Los Angeles Criminal Defense Attorney who is capable of handling both.

When a person is arrested on suspicion of domestic violence, law enforcement will often request an Emergency Protective Order or “EPO.” An EPO is a protective order granted upon application by law enforcement to a judge that is valid for five business days.

This gives the other party time to apply for a permanent domestic violence restraining order under the Family Code. When the petitioner applies for a restraining order, the judge may grant a temporary restraining order that would be in place until the assigned court date after the Respondent has been served and has a chance to respond.

In addition, if a defendant is charged with a domestic violence criminal offense, the judge at arraignment is required to issue a Criminal Protective Order that would prevent the defendant from having contact with the alleged victim while the criminal case is pending.

While a domestic violence criminal charge and a domestic violence restraining order may be based on the same underlying facts, there are major differences between the two processes.

A domestic violence criminal charge can only be filed by a prosecutor in court, while a domestic violence restraining order can be filed by anyone in a qualifying relationship. This means that in many domestic violence restraining order cases, the petitioner is representing himself or herself and is responsible for proving in court that abuse occurred that would warrant the issuance of a domestic violence restraining order.

The burden of proof for a domestic violence restraining order is also much lower than a criminal charge. The burden of proof for criminal domestic violence is proof beyond a reasonable doubt, which is the highest burden of proof available. For a permanent domestic violence restraining order, a petitioner need only prove his or her case by a preponderance of the evidence, meaning it is more likely than not that abuse occurred. The burden of proof to be awarded a temporary domestic violence restraining order is even lower, and a petitioner need only show reasonable proof of past abuse in order for a judge to issue a “TRO.”

Under the law, a defendant who is facing criminal charges in court may be able to continue his restraining order hearing while a criminal case is pending. This is because having the defendant testify at the hearing may violate his right to remain silent under the Fifth Amendment. However, in some cases a defendant may want to go forward with a restraining order hearing while his or her criminal case is pending. A skilled attorney can use the restraining order hearing to effectively cross-examine the complaining witness or challenge his or her evidence. The transcript of the restraining order hearing may then be used to help the defendant in the criminal case.

If you are facing domestic violence charges and have questions about the restraining order process, it is critical that you speak with a Los Angeles Criminal Defense Attorney immediately. Los Angeles Criminal Defense Lawyer Michael Kraut is a former Deputy District Attorney with over 14 years of prosecutorial experience who knows how to effectively represent those charged with domestic violence crimes.

For more information about domestic violence, contact Los Angeles Criminal Defense Attorney Michael Kraut at the Kraut Criminal & DUI Lawyers located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at 888-334-6344 or 323-464-6453.