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 it.  

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, California police 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 doing 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 create 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 5/22/23 (postponed from 5/18/23), and I plan to observe part of it.  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 

Expunge Your Criminal Record in California

Having an old criminal record can have a significant impact on one's life. Old convictions can prevent individuals from finding employment, housing, and educational opportunities, among other things. Luckily, California offers individuals several different options to reduce the severity of old charges, to dismiss cases, and to have various records hidden from public view.

Our office has been handling California expungement cases from start to finish for over a decade.  We can take care of the entire process with just a few pieces of information from the client, even if the client lives somewhere outside of California.  If you've been thinking about cleaning up your record but you're intimidated by the court system, send a quick email and let us take care of everything.  

One of the most significant benefits of expunging a criminal record relates to employment. Many potential employers conduct background checks on job applicants, and a criminal record can be a significant barrier to starting a new career. Employers in California, however, are legally prohibited from discriminating against applicants whose old cases have been expunged. Once your expungement has been approved by the court, then the old case "never happened" for employment purposes.

Expunging a criminal record can also help anyone seeking housing. Landlords may conduct background checks on potential tenants, and a criminal record can make it challenging to find a place to live. It's hard enough to find a good place already.

Additionally, expunging a criminal record can help students pursue educational opportunities. Many colleges, universities and graduate schools conduct background checks on applicants, and a criminal record can be an insurmountable hurdle to admission.

Expunging a criminal record can also have psychological benefits. Individuals with criminal records may feel a sense of shame or embarrassment about their past. Expunging a record can help alleviate these feelings and allow individuals to move forward with their lives without the constant reminder of their past mistakes.

Anyone with a felony conviction is prohibited from owning or possessing firearms for life. In some cases, though, old felonies can be reduced to misdemeanors. An expungement does not restore gun rights by itself, but a reduction may. Once a charge is reduced in severity from a felony to a misdemeanor, the old charge is considered to be a misdemeanor for all purposes.

Finally, expunging a criminal record can also have societal benefits. When individuals are able to find employment, housing, and educational opportunities, they are less likely to engage in criminal behavior in the future. This can lead to a reduction in crime rates and a safer community for everyone.

If you or a loved one has questions about cleaning up a criminal record in California, call us for a free attorney consultation. 714 449 3335. Ask for John. Our office is located in Orange County, but we serve the entire state of California.

Thanks for reading.

Orange County Expungement Lawyer

Is it Even Worth My Time to Fight a Restraining Order?

Courts in California have the power to issue restraining orders for a variety of reasons.  The specific type of order depends on the situation and the relationship of the parties.  

Domestic Violence Restraining Orders (DVROs), for instance, apply when the parties are closely related or have ever been involved in a romantic relationship.  In addition to the typical "stay away" / "do not contact" orders, DVRO judges can order respondents to complete a 52-week course of anger management counseling if they feel it is appropriate.  

Civil Harassment Restraining Orders (CHROs) are probably the most commonly-filed restraining order cases.  They apply when the parties have no direct familial, workplace or romantic relationship.  They usually involve situations like neighbors who butt heads, or former romantic partners who harass new partners.  If the two romantic rivals are not related and have never had a relationship with each other, then their dispute would fall under the banner of a CHRO and not a DVRO.  

Elder Abuse Restraining Orders (EAROs) can be issued in situations where a person over 65 years old (or any "dependent adult") is at risk of abuse or neglect, including financial abuse.  EAROs are usually filed by elderly people against their own adult children or caregivers.  If the elderly person is incapacitated, a conservator may seek an EARO on his / her behalf.  "Power of Attorney" is not sufficient to file an EARO on behalf of someone else.  

Workplace Violence Restraining Orders (WVROs) are used in cases where someone has been harassed or abused at the workplace or under circumstances related to his / her employment.  That can include harassment by a coworker or by someone outside of the company / organization.  WVROs generally order the restrained party to stay away from a particular location, extending protection to all of the petitioner's coworkers.  The "workplace" does not necessarily have to be a private company.  City Attorneys and County Counsel often have to seek WVROs on behalf of government employees who become targets of public ire (police officers, building inspectors, City Counsel members, etc.). 

Gun Violence Restraining Orders (GVROs) are the newest form of restraining order under California law.  They can only be initiated by police officers and by immediate family members of the restrained person.  The petitioner must prove that a respondent has access to a firearm and that he poses an immanent danger to himself or others.  

I've previously written several in-depth posts about the nuts and bolts of restraining orders, so there's no need to rehash it all.  For more information, read those articles here and here.  

This post is specifically about the consequences of having a restraining order granted against you, and why restraining orders are usually worth fighting.  

Restraining orders typically prohibit the restrained party (the "respondent") from doing something that he has no legal business doing anyway.  That might include orders to stay away from an ex-girlfriend's house or to stop threatening a neighbor, etc.  You probably have no intention of ever driving past your ex's house or speaking to your neighbor again.  In that sense, it might be tempting to blow the whole thing off and simply accept the restraining order.  That is almost always a bad idea.  

The first and most obvious risk of failing to assert a vigorous defense is that the judge will make orders that you DON'T accept.  Maybe you were perfectly willing to stay away from your ex's house and to stop calling her, but you are not willing to stay away from her workplace because your office (or your doctor, or your kid's school) is nearby.  By simply accepting the petitioner's requests, you could be waiving your opportunity to raise these issues.  Consequently, the final order might be overly broad and much more restrictive than necessary.  

Most restraining orders are public records.  They will appear on background checks for things like employment and housing.  Having a restraining order may complicate international travel.  Places like Canada, Japan and Australia have very strict admission requirements, even for American citizens.  Good luck volunteering at your kid's school or coaching a baseball team while you have an active restraining order against you.  Of course, restraining orders also must be disclosed to any professional licensing board that governs your occupation.  Having a restraining order can even make it hard to date and meet new people in an age where everyone can be Googled.  

Finally, anyone who is the subject of a restraining order is prohibited from owning or possessing firearms and ammunition.  That applies everywhere in the country, even outside of California.  If a restraining order is granted against you, you are required by law to immediately surrender all weapons within your possession to law enforcement or to a licensed firearms dealer.  Possession of firearms or ammunition by a prohibited person can be a felony.  If you value the Second Amendment, you want to defend your home with a firearm, you're a hunter, or you just don't want to hand over Grandpa's war trophy, you should be prepared to zealously oppose any restraining order.  

As the respondent in a restraining order case, you only get one chance to present your defense and to convince the judge to deny the petition against you.  If you are not prepared to conduct your hearing on the date assigned, you are entitled to one free continuance.  Just tell the judge that you need more time and the court will assign a new appearance date 3-4 weeks later.  

If you fail to request a continuance and you proceed to your hearing unprepared, there are no second chances.  You cannot request a new hearing just because you weren't ready, you didn't understand what was going on, a witness lied, or you disagree with the judge's decision.  To appeal the final judgment after a restraining order hearing, you must prove that the judge made some specific legal error.  Appeals are expensive and can take over a year to resolve.  The restraining order might even expire before the appeal is settled.  It is important, therefore, to properly assert a vigorous defense the first time, and not to wait until you already have a restraining order before you seek legal advice.  

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

Thanks for reading. 

Restraining Order Lawyer

Expunge an Old California Case, Even if You Currently Live Out-of-State

Our office has recently processed a lot of expungement petitions on behalf of clients who no longer live in California.   These are quickly becoming some of my favorite matters to handle.  

Regardless of where our clients currently live, we try to make the whole the process as convenient and painless as possible.  Our intake paperwork is just a few easy-to-read pages.  We can send the documents by email in a simple PDF with fields for the client to fill and email back.  We can also personally appear in court, so our clients don't have to in most cases. 

We offer flat rate fees, so you know the costs up front.  We also allow flexible payment plans with easy monthly installments.  

California laws provide several different options to clean up old criminal records.  Depending on your circumstances, you may be eligible to seal an old arrest record, reduce a felony conviction to a misdemeanor, get off of probation early, or have an old case dismissed entirely.  

California also recently began accepting applications for removal from the state's sex offender registry.  

Any application for post-conviction relief must be filed in the county where the defendant was originally arrested / convicted, regardless of where he lives today.  Some petitions (like applications for relief from the duty to register as a sex offender) must ALSO be filed in the county where the defendant currently lives.  Our office will handle the legwork of properly filing / serving copies of any paperwork to the appropriate agencies.  

We have access to most court records, so we can usually find your case with a just a few pieces of information about you.  It's OK if you don't remember your case number.  Sometimes, though, a case is so old that the local courthouse no longer has any record of it.  When that happens, we can walk you through the process of obtaining an official copy of your own Criminal History Report from the Dept. of Justice.  That Criminal History Report will contain all of the information that we need to complete the application.

If you or a loved one has questions about expunging an old conviction or sealing an arrest record in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  Our office is in Fullerton, but we serve all of OC, LA, Riverside and San Bernardino.  

Thanks for reading.  

Expungement Lawyer

I Was Accused of Battery. Should I Seek a Restraining Order Against My Accuser?

Here's a situation that my office sees pretty frequently:  A & B have a contentious relationship.  They might be neighbors, coworkers, romantic partners or even spouses.  Both parties blame the other for causing the conflict and accuse each other of harassment (or worse).  

At some point, the conflict boils over.  A calls the police and B is arrested (for assault, battery, domestic violence, inflicting injury on a spouse, vandalism, threats, etc.).  While B's criminal case is slowly working its way through the justice system, B files a restraining order against A in civil court.  B claims that A is the abuser and that B is the one who actually needs protection.  

Is this a smart move?  Will filing a restraining order against his accuser somehow shift the narrative, put A "on the defensive", and give B a tactical advantage in defending his criminal case?

I almost always advise clients against seeking restraining orders while they are currently fighting criminal charges.  There are several risks inherent in initiating one case while fighting another, and doing so does not necessarily confer the advantages that many clients imagine. 

The first and most obvious issue in this situation is the 5th Amendment.  As the defendant in a criminal case, B has one key advantage -- he has the right to remain silent.  He does not need to prove himself innocent, the prosecutor needs to prove him guilty.  The prosecutor bears the burden of presenting evidence and trying to convince a jury of the defendant's guilt beyond a reasonable doubt.  After the prosecutor has shown his hand and presented his evidence, the defendant in a criminal case has the choice of whether or not to share additional evidence and / or testify on his own behalf.  He cannot be forced to answer questions if the answers to those questions might be used against him.  

The opposite is true if B decides to seek a restraining order against A.  If B files a petition to seek the legal protection of a restraining order, he is the Petitioner.  In any restraining order hearing, the Petitioner bears the burden of proving his / her case.  The threshold of proof depends on the type of order that the Petitioner is seeking.  In Domestic Violence cases, for instance, the Petitioner must prove the allegations "by a preponderance of the evidence".  In restraining order cases based on Civil Harassment, the Petitioner must meet a higher burden of proving the case "by clear and convincing evidence".  It will be extremely difficult -- nearly impossible -- for any Petitioner to prove the facts necessary to win a restraining order while simultaneously remaining silent and refusing to answer questions that might be used against him / her.  

Even if B is successful in his petition, winning a restraining order against A might not be as valuable as B imagined.  Having a restraining order against his accuser will not absolve him of the charges he is facing in criminal court.  Even though the restraining order case and the criminal matter might involve the same people and many of the same facts / allegations, they are not related.  The restraining order court and the criminal court are applying different laws and different rules of evidence to address different issues.  The outcome of one case will not necessarily affect the outcome of the other.    

If B is not successful in his restraining order petition, he could be in a world of hurt.  Courts have the power to sanction litigants who abuse the system by wasting time and resources for improper purposes.  If the judge finds that B acted vindictively or that he filed a frivolous petition with the intent to harass A or waste A's time, the court can order B to reimburse A for any expenses that A incurred, including time missed from work and attorneys' fees.  

By pursuing a baseless restraining order, B doesn't just waste the court's time and resources, he wastes his own.  That's money and energy that could have been spent fighting his criminal case.  In my experience, the risks of seeking a restraining order almost always outweigh any benefit if the Petitioner is simultaneously defending himself against criminal charges related to the same allegations.  

If you have questions about restraining orders or domestic violence charges in Southern California, call for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading. 

Fullerton Domestic Violence Lawyer