This is a confusing area of the law and a lot of people don't 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.
What is a Domestic Violence Restraining Order?
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 go get a restraining order and they 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 actually be a crime and they could be charged with a new case separate and apart from the domestic violence case they originally got arrested for. If you violate a protective or restraining order, you could be arrested under California Penal Code 273.6.
So, this gives you an idea of what a civil restraining order is relating to a domestic violence case. What will happen, they'll go into 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 court date in criminal court comes along, the criminal judge, if a criminal case is filed for domestic violence, is going to issue a protective order against that person, and basically 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 or not guilty of the crime. That is a criminal remedy.
Consequences of Violating a Protective or Restraining Order
So then you 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 you could be facing punishment 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 if someone gets convicted of a domestic violence case, part of the conviction is going to 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 usually about three years. If it's a real 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 they get a domestic violence restraining order against the person.
So, they have the protective order and the restraining order, both basically saying the other party has to stay 100 yards away from them.
Sometimes you can get what's called a Level 1 protective order which basically means the two can have contact with each other, but It has to be peaceful contact and if the person were to attack or strike, annoy or molest the other party then they would be subject to a crime for violating even a Level 1 protective order
So, that's pretty much the difference between a restraining order and a protective order. One is a civil remedy; the other one is a criminal remedy and the two should not be confused because they are two totally separate things usually dealing with the same subject matter.
