Can I Get Out of an Existing Restraining Order?

As I've previously written on this blog, there are a million reasons that people seek restraining orders against each other.  Coworkers, neighbors, exes and even siblings sometimes have conflicts that end up in court.  After hearing all of the evidence presented, judges can issue restraining orders that remain in effect for up to 5 years -- and longer if renewed.  Criminal Protective Orders can even remain in effect for up to 10 years.

A lot can change in 5-10 years, though.  Parties might mutually decide to reestablish contact, or circumstances might be so different that the restraining order no longer serves any purpose.  These situations can leave one party as the subject of an order that nobody actually wants, including all of the disabilities and loss of rights that go along with being the subject of a restraining order.  

Luckily, California law allows courts to modify or terminate existing restraining orders and Criminal Protective Orders.  The protected party (AKA, "the petitioner") may simply request to terminate the order at any time by filing a few simple forms.  The judge will probably have a couple of questions, like, "Did anyone threaten you or force you to do this?", "Is this what you want?", etc. but these hearings are usually quick and easy when the request comes from the protected party.  

If the restrained party (AKA, "the respondent") wants to terminate or modify an existing restraining order, he bears the burden of proving that the order no longer serves the purpose for which it was issued.  This is not his opportunity to argue that the order never should have been granted in the first place (or that he got bad legal advice, or that someone lied during the hearing, etc.).  Those issues have already been decided.  The respondent had an opportunity to raise those arguments at the time of the hearing on the original order, or else to file an appeal if he believes that the trial judge made some mistake of law.  We are now past that stage. 

This is also not the respondent's chance to argue that the order is burdensome, it hurts his ability to find a job, or that it infringes upon his 2nd Amendment rights.  Those things were all true at the time the order was granted, and they are still true for every order that the court issues.  If those were valid arguments, then court would never grant restraining orders against anyone.  

Instead, the respondent should focus on explaining any change in circumstances since the order was originally issued.  Specifically, he needs to prove that the order is no longer necessary because the risk of harm no longer exists.  A judge hearing the request will start from the assumption that the order was originally granted for a good reason.  The person requesting the modification should acknowledge that reason and explain why it is no longer valid today.  If abusive behavior was related to alcohol, for example, maybe the respondent can prove that that he has received extensive alcohol treatment and maintained a significant period of sobriety.  Treatment + sobriety would be considered "changed circumstances" that might convince a judge to modify or terminate a restraining order.  

Our office was recently able to help a client successfully terminate an Elder Abuse restraining order.  The order no longer served any purpose, but it continued to have a severe impact on the client's life.  In this case, the protected party was an elderly woman.  The restrained party was her adult son.  The son was prohibited from coming within 100 yards of his mother, her home or her vehicle.  In the years since the order was issued, the mother had passed away.  Her home and her vehicle had both been sold by the executor of her estate.  There was nothing that still needed to be protected today, but my client continued to carry around this worthless restraining order.  The judge agreed that the order no longer served any valid purpose and so it was terminated. 

If you or a loved one have questions about modifying or terminating a restraining order, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading.  

Orange County Restraining Order Attorney

Can I Get a DUI for Sleeping in a Parked Car?

Marshawn Lynch was arrested in Las Vegas last week on suspicion of DUI.  Officers allegedly found Beast Mode asleep behind the wheel of a parked car.  The story inspired me to write a blog post about a question that I hear a lot: can I be arrested for DUI if I'm found sleeping in my car?  Does it matter if the keys are in the ignition?

The answer is different from state to state.  In some places, like Nevada, a defendant can be found guilty of DUI if he is "in control of a vehicle" while under the influence of alcohol.  Other states, like California, require prosecutors to prove that the defendant "operated a vehicle" while under the influence.  That subtle distinction - "in control of" vs. "operated" makes a huge difference in practice.  

Under the Nevada law, a defendant who is passed out in a parked car could be found to be "in control of the vehicle" if the keys are in the ignition.  I am not licensed to practice in Nevada, so I don't intend to make this post into a detailed analysis of Nevada law, other than to note this important point.

In California, a defendant is not guilty of DUI unless prosecutors can prove that he or she "operated a vehicle", and that the defendant's blood alcohol concentration (BAC) was >0.08% at the time of driving.  "Operating a vehicle" involves exercising some control over the movement of the car -- even moving one inch.  Simply sleeping in a parked car is not necessarily a DUI in California unless prosecutors can prove the defendant was drunk when he /she parked the car.  It makes no difference whether or not the keys are in the ignition when police discover the sleeping suspect.  

Of course, police in California can still arrest a suspect if the person is found drunk in a public place.  The interior of a car is considered a "public place" if the car is parked somewhere that is generally accessible to the public, regardless of who actually owns the land.  In California, we call that "drunk in public".  In Nevada, they call it "DUI".  Since the Nevada DUI statute is broader than the same law in California -- it encompasses behavior that would not be considered "DUI" in California -- DUI convictions from Nevada are not counted as "priors" in California.

If you or a loved one has questions about a DUI arrest in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading. 

Fullerton DUI Lawyer

Should I Represent Myself In Criminal Court?

People who choose to represent themselves in court are sometimes called "self-represented litigants" (SRLs), or "pro pers" (from the Latin, "In Propia Persona" -- "for himself").  

There are plenty of legal issues that don't necessarily require attorneys.  Small Claims Court, for example, is intentionally designed to be as simple and straightforward as possible, so that individuals can resolve minor civil disputes without the cost of lawyers.  In restraining order hearings, about half of the parties are usually represented by professionals.  Evictions, name changes, emancipations, uncontested divorces and simple traffic infractions can all usually be resolved DIY, if you don't mind performing your own research and spending a few mornings in court.  Criminal law, on the other hand, is not one of these areas.  

The 6th Amendment to the US Constitution guarantees the right to counsel of one's choice.  That includes the right to act as your own counsel.  Just because you have the right to do something, though, doesn't always mean that you should.  Representing yourself in criminal court is a terrible idea and there is really no good reason to attempt it.  The stakes are too high and the game is too complicated.  Abraham Lincoln even supposedly said, "Whoever represents himself has a fool for a client."  

In any criminal case, the prosecutor is a highly-trained professional.  This person graduated from law school, passed the bar exam, received extensive on-the-job training, and has experience conducting many, many jury trials before yours.  The prosecutor understands the rules of evidence, how to effectively examine a witness, how to make compelling opening / closing statements, and how to properly object if you attempt to inject some inappropriate argument.  This person is trying to convict you and possibly send you to jail.  Without a robust defense, the prosecutor will run wild on you.  

As your own attorney, you will be expected to comply with all the same rules and procedures as the professional prosecutor.  The judge will not grant you any slack or give you any extra time to prepare.  The court will also not give you any legal advice or assistance.  

Even lawyers don't represent themselves when they get into trouble; they hire other lawyers.  The dangers of self-representation are not limited to the defendant's lack of knowledge or experience.  Acting as your own lawyer is so hazardous because it's difficult to analyze your own case objectively.  Emotion will cloud your judgment.  You will see the evidence through your own prism and you may fall into the trap of assuming that the jury sees it the same way.  Tunnel vision can distort your perspective and distract from the important issues.  A disinterested set of eyes can review the facts and help craft a narrative that serves your defense more effectively.  

Cost is not a compelling reason to represent yourself in criminal court.  Among other things, part of an attorney's job is to help the client avoid or reduce expensive fines and restitution.  Sometimes, we can even pay for ourselves by saving the client more than our fee.  Our firm is very flexible with payment plans, and most other local law offices will work to accommodate almost anyone's budget.  If money is really an issue, though, the Public Defender will represent a defendant at no cost.  The Orange County Public Defender's Office has an outstanding reputation and their attorneys are all very capable.  Any defendant would have much better prospects in the hands of the OCPD than in representing himself.  

Finally, if you represent yourself and you do a terrible job, you cannot sue for malpractice or complain about "ineffective assistance of counsel" on appeal.  You have nobody to blame but yourself.  

I have never seen anyone successfully represent him or herself in criminal court.  I love to sit in and watch these cases when I have time, but it's kind of like seeing a professional boxer spar with an elderly, disabled person.  The prosecutor sticks and moves effortlessly around the ring, while the hapless defendant argues with the judge and stumbles through waves of objections.  

A pro per trial is scheduled to start at the Fullerton Courthouse on 6/12/23, and I plan to observe part of it.  A local woman is accused of various traffic infractions.  After being stopped, she allegedly tore up the ticket, resisted the police and slapped an officer.  I will post a summary here, so check back for updates. 

If you or a loved one has questions about a criminal case, call for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading. 

Orange County Criminal Defense Attorney 

Updated 6/14/23:  Well, that was quick.  The pro per trial in the Fullerton Courthouse (mentioned above) went exactly as I predicted -- it was an unmitigated disaster for the defendant.  Throughout the 2-day trial, she argued with the judge and bumbled through an onslaught of objections.  She repeatedly attempted to inject improper arguments and referred to matters that had been expressly excluded.  Her "evidence" was deemed inadmissible and the judge repeatedly warned her about her decorum.  Inexplicably, and on more than one occasion, she attempted to cite the historical case of "Marbury v. Madison" (1803), which famously established the doctrine of "judicial review" (the idea that courts have the power to declare various laws unconstitutional -- a bedrock of the American justice system, but utterly irrelevant in this case).  

To recap, this case involved some traffic tickets and one woman's refusal to simply sign the citation.  According to the arresting officer, the defendant tore up the ticket, threw it onto the ground, refused his commands, and slapped him.  The jury deliberated for less than an hour before returning "guilty" verdicts on all counts.  The defendant was immediately remanded into the custody of the sheriff. 

Sentencing was scheduled for this morning.  The judge also set the case for an "Order to Show Cause re: Contempt" -- a hearing to determine whether or not the defendant should be additionally punished for her repeated failures to comply with the court's rules during the trial.  Bail was set at $15,000.  Defendant posted bond and was released overnight.  

Judge Thompson sentenced the defendant to serve 20 days in jail, but allowed her to apply for house arrest.  He also set her fines at $2,377.47, ordered her to complete 8 hours of trash pick-up and placed her on informal probation for one year.  He set sanctions at $100 for her repeated violations of court decorum.