These two terms are confused all the time and I've been practicing criminal defense now for twenty-five years and I've seen people not understand that a restraining order is not a criminal vehicle. A restraining order is a civil vehicle. It is basically for harassment.
Civil vs. Criminal
So, if somebody is harassing you with a bunch of phone calls, threatening or stalking you, you can file a civil restraining order. You go into civil court and the judge grants it or denies it. You can try to get a TRO, which is a temporary restraining order while you wait for the hearing. You have to serve the other party with it. Now where a restraining order could become criminal is if somebody violates a restraining order. If you violate a restraining order, they can file a criminal case against you for violating that restraining order.
A protective order, on the other hand, is a criminal vehicle. When you go into criminal court on a domestic violence case for example, typically the first thing the judge is going to do and the prosecutor is going to ask for is a protective order to protect the victim while the case is pending.
If the judge grants a protective order, it's a criminal vehicle. It's basically the criminal judge saying, listen, while this case is pending you're a defendant in it.
You're alleged to have hit somebody or done whatever it is and you are ordered by this criminal court to stay away from that person. That's a criminal order and if you violate it, it's a crime. They'll charge you with a crime for violating a protective order as well.
Where it's interesting is these two vehicles can be done simultaneously. I've seen when a domestic violence case happens, somebody does a restraining order before the case gets to court because if the person bails out, the case is usually not going to get to court for about thirty days.
So, the police will tell them to get a restraining order while they're waiting to get the protective order and deal with the case at the criminal level. You go in and file the paperwork for the restraining order and if the judge grants it you're good. They'll usually give you a temporary restraining order first and then you can get a permanent restraining order after a hearing and that usually lasts for three years.
A lot of times what happens though is – in the scenario that I just mentioned – basically, the criminal case ends up taking over because if the criminal judge issues a protective order, then that pretty much covers everything while the person is on probation.
That will probably be three to five years. So, you don't really need the restraining order in that scenario because you already had a protective order issued by a criminal judge and if it's violated, not only would the person be subject to a new crime, they would also be subject to a probation violation, so they would be looking at some serious time if they violated a criminal protective order.
So, that's the difference between a protective order and a restraining order in Los Angeles. Obviously, for more detail on it, you want to talk to an attorney who has dealt with restraining orders and protective orders.
As a criminal defense attorney, I've done restraining orders and I've done protective orders. I know what it takes to get them. It's probably easier to get a protective order because once a criminal case is filed, a judge will automatically give one; whereas with a restraining order you have to actually sow some things in order to get that granted by the judge.
So, when you're engaging whether you're going to do a criminal protective order or a civil restraining order you're going to want to talk to an attorney who has done it before, knows what is necessary to get one, knows what evidence has to be produced, and also hire an attorney to get a restraining order because there are certain technical things you don't want to mess it up and not be able to get it.
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