Restraining Order vs Protective Order in Domestic Violence Cases
This is a confusing area of the law, and many people need to have it right. Even attorneys sometimes don't understand the difference between a protective order and a restraining order as it relates to a domestic violence case.
Just to give you an idea of the typical case — somebody gets arrested. The police come out and take them away. The person has to post a $50,000 bail, and they're booked for domestic violence.
At that point, the police will talk to the victim in the case — whether it be the person's husband, wife, boyfriend, girlfriend, or significant other — and tell them they can get a restraining order and give them the information.
The person goes into civil court, and they can get a domestic violence restraining order to keep the person 100 yards away from them. Should the person violate that civil restraining order, that would be a crime, and they could be charged with a new case separate and apart from the domestic violence case they originally got arrested. You could be arrested under California Penal Code 273.6 if you violate a protective or restraining order.
This gives you an idea of what a civil restraining order is in a domestic violence case. They'll go to court and get an emergency order from the judge, and then they'll serve that on the other party.
Eventually, there will be a court date, and the other party can try to defend that restraining order in civil court and say they didn't do the things the other person is claiming — even though I got arrested, I'm not guilty, or they concede the civil domestic violence restraining order.
That has nothing to do with criminal court. That's a civil remedy and is usually available to the person between the time the individual gets arrested and that person's court date.
When that person's criminal court date comes along, the criminal judge, if a criminal case is filed for domestic violence, will issue a protective order against that person. That's the criminal judge saying you need to stay 100 yards away from this person while we try to resolve this case and see if you're guilty. That is a criminal remedy.
Consequences of Violating a Protective or Restraining Order
You then have a protective order related to both the criminal judge and the civil judge. If you violate both of those, you could be charged with a new crime and punished for those violations.
So, one is a civil remedy in the civil court. The other is a criminal remedy in the criminal court. Usually, what I see happening as a criminal defense attorney is that if someone gets convicted of a domestic violence case, part of the conviction will be a protective order.
Sometimes, it's a full protective order where they have to stay 100 yards away, and it's usually for the probationary period, which is usually about three years. If it's a really bad scenario, like a felony or someone's stalking another person, it could be a ten-year criminal protective order.
A lot of times, the other side will just drop the restraining order because it's a bit duplicative to have both a restraining order and a protective order, but I have seen that before when the other party wins their restraining order hearing as well and gets a domestic violence restraining order against the person.
So, they have protective and restraining orders, which require the other party to stay 100 yards away.
Sometimes, you can get a Level 1 protective order, which means the two can contact each other, but It has to be peaceful. If the person were to attack, strike, annoy, or molest the other party, then they would be subject to a crime for violating even a Level 1 protective order.
That's the difference between a restraining order and a protective order. One is a civil remedy; the other is a criminal remedy. The two should not be confused because they are separate but usually deal with the same subject matter.
