What is a domestic relations protective order?

Orange County Courts offer protective orders to people who have been or have reason to believe that they could be the victim of abusive behavior on the part of a partner, spouse, or similar person. Specifically:

1. A restraining order (also called a “protective order”) is a court order that can protect someone from being physically or sexually abused, threatened, stalked, or harassed. The person getting the restraining order is called the “protected person.” The person the restraining order is against is the “restrained person.” Sometimes, restraining orders include other “protected persons” like family or household members of the protected person.

A person may request a domestic violence restraining order in cases of abuse by someone with whom the person claiming abuse has “a close relationship (i.e., married or registered domestic partners, divorced, separated, dating or used to date, have a child together, or live together or used to live together—but more than roommates), or to whom they are closely related (parent, child, brother, sister, grandmother, grandfather, in-law).

In many cases, an order of protection is imposed by a judge in cases of actual or domestic violence or credible evidence that domestic violence may occur; i.e., there have been threats.

They are normally issued to ensure that an alleged victim is protected from being harassed, abused, stalked, or threatened by a defendant.

Under California Penal Code 273.6, it is a crime for someone to violate the terms of a court-ordered protective order, restraining order, or stay-away order.

Punishment for violation includes:

1. Any intentional and knowing violation of a protective order is a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000), or by imprisonment in a county jail for not more than one year, or by both that fine and imprisonment.

Can the victim of domestic violence drop the charges in Orange County?

The short answer to that is “no.”

While those who have leveled accusations of domestic violence may (and often do) change their minds after time has passed and want charges dismissed, they cannot legally do so.

Once the police are called, once an arrest is made, and once charges are made, it is out of the victim’s hands.

Why?

In large part, it is because the State (that is, the government) brings charges—not the victim. This means that the District Attorneys have sole discretion whether charges are filed or dismissed.

While it may seem odd, the fact is that in the American judicial system, criminal cases “are seen as disputes between the government and individuals accused of crime.”

As such, the prosecution (District Attorney) bases decisions on the totality of evidence: police reports, 911 call transcripts, the type and degree of any injuries, prior record of those involved, and witness testimony.

The testimony of the victim is often a pivotal factor in not just the outcome of a case, but whether the case would even meet the “reasonable doubt” standard.

In fact, the victim has the right to refuse to testify.

While the prosecution can continue trying an accused person even without the testimony of the victim, it makes their job much more difficult as they bear the burden of proof.

As your Orange County domestic violence defense attorney, we only need to prove a reasonable alternative explanation that does not involve the accused committing a crime.

What are the best defenses against domestic violence charges in Orange County?

First and foremost, it is “one of the most sacred principles in the American criminal justice system, holding that a defendant is innocent until proven guilty.

In other words, the prosecution must prove, beyond a reasonable doubt, each essential element of the crime charged.”

That being said, it is the job of your skilled and aggressive criminal defense lawyer to find holes in the prosecution’s case.

The most common defenses in Orange County domestic violence charges include:

1. The defendant was falsely accused: Law enforcement takes domestic violence allegations seriously; even though experienced investigators know false accusations and exaggerated claims are common. Strained relationships, stress, substance abuse and/or hidden agendas often motivate false claims or a desire for revenge or to cause pain and embarrassment. Witness credibility and available physical evidence is key when there are conflicting statements. We are experienced in finding the truth and highlight hidden agendas by:
   1. Looking for discrepancies in witness statements, 911 transcripts and police reports
   2. Interviewing the couple’s family and friends
   3. Doing background checks on the accuser and any key witnesses
   4. Reviewing text messages, emails, and social media accounts

When we uncover evidence of false accusations or lack of accuser accountability, prosecutors often reduce charges or dismiss them altogether.

2. The defendant acted in self-defense or in the defense of others: Under California criminal jury instructions, it is stated that defendants can lawfully defend themselves if:
   • The defendant reasonably believed that he or she was in “imminent danger of suffering bodily injury:”
   • The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; and
   • The defendant used no more force than was reasonably necessary to defend against that danger.
3. The injury was accidental: In order to prove guilt, the prosecution must, beyond a reasonable doubt, show that a defendant willfully injured a victim. Even if an accidental injury occurred in the heat of an argument, if it wasn’t intentional (willful), then there is no proof beyond any reasonable doubt and the defendant is not guilty.
4. The defendant is innocent: Show that the accused did not commit the crime using an alibi, scientific evidence, or some type of technological evidence.

The Orange County domestic violence lawyers at Chudnovsky Law usually obtain the best outcome without going to trial.

Trials can publicly expose sensitive personal issues for the public record and be more costly than a skillfully negotiated dismissal or favorable plea deal.

If the District Attorney is being unreasonable, it may be in the best interest of the defendant to take the case to trial.

How can I get domestic violence charges dropped in Orange County?

In truth, it is not easy to get the Orange County District Attorney’s office to drop a domestic violence charge.

In many cases, it’s because the prosecutor’s office has a “no-drop” policy when it comes to these types of crimes.

To a large extent, the prosecution is concerned that a victim may change their story; particularly if they are fearful of retribution by the accused.

According to a scholarly article, the no-drop policy was pioneered in, among other jurisdictions, San Diego “in the late 1980s in response to the high dismissal rate of domestic violence cases.

Until then, it had been the practice of most prosecutors and judges to dismiss domestic cases in which the victim was unwilling to come to court or to testify against the defendant.

Because many victims failed to cooperate for a variety of reasons, domestic violence cases had dismissal rates many times higher than other crimes.”

However, with the help of a defense attorney with vast experience in Orange County domestic violence cases, there are several strategies that can be employed:

• Try to gain the trust and support of the prosecutor: You may think this is next to impossible, but there may be ways to prove that dismissing the case is in everybody’s best interest; including those of the State.
• Get a copy of the police report: Much of what the prosecution will base their case on may well be in the police report. Knowing what is in the report is critical to mounting a strong defense—up to and including having charges dismissed.
• Look for factual errors: A knowledgeable attorney may be able to find issues in the police report that point to a charge based on false allegations. Your lawyer also takes into account any facts that you may be able to provide that were not in the report. Give a true description of your side of the story.

Remember, only the prosecution can choose whether to drop a charge or not.

By finding holes in the prosecution’s case, looking for conflicting statements, and seeking evidence of potential false accusation on the part of an alleged victim, your attorney is often able to have charges dropped or reduced.