How to Get (or Fight) a Restraining Order in California: Part 2

I have previously written about the process of applying for (or fighting against) restraining orders in the State of California.  I described the nuts and bolts of preparing the petition, having the proper documents served on the opposing party and filed with the court, and appearing before a judge for a series of hearings on the matter.  That post is available here.  Part 3 in this series is available here.

Today, I wanted to discuss the strategy involved in preparing for your big day in court, along with a few things to keep in mind when you're in front of the judge.  I have assembled some helpful tips based on my experiences litigating on behalf of clients both for and against restraining orders.

Know Your Judge

The first thing I want to emphasize is the unique nature of restraining order proceedings.  These hearings are really unlike any other type of court hearing that you might have previously been involved with.

One thing that makes these hearings so unique is their informality.  While the typical rules of evidence and civil procedure still apply, judges often adopt their own courtroom policies to streamline the process and to hear a large number of cases in a limited number of courtrooms.

Every judge in every courtroom has his or her own daily routine for calling cases, hearing evidence and issuing rulings in a timely manner.  Being familiar with your judge's personal style will give you a huge advantage over your opponent.  If you've never appeared before a particular judge, you should strongly consider hiring an attorney who has.  In the alternative, you should make time to sit in and observe a day of proceedings before your court date.  Pay attention to types of arguments that the judge finds persuasive.  Being familiar with your judge and the court rules will also help you feel more confident and relaxed when it's your turn to present your case.

If you read my previous post about restraining orders (available by clicking the link, above), you know that the judge is looking for "clear and convincing" evidence of harassment.  If the petitioner is able to prove that he or she has been the victim of harassment, then the petitioner wins.  The law defines "harassment" as 1) violence, 2) credible threats of violence, or 3) a course of conduct, directed at a specific person that seriously alarms, annoys or harasses the person, and that serves no legitimate purpose.  That last part ("...that serves no legitimate purpose") is the wild card.  Judges have very different opinions about what does and does not constitute a "legitimate purpose".  For example, some judges feel that debt collection is a legitimate purpose.  Others disagree.

Abe owes Ben some money and Ben calls Abe repeatedly, asking to be repaid.  Abe is annoyed and alarmed by the repeated phone calls.  He asks Ben to stop calling him, but Ben starts showing up at his home and place of work.  Abe finally petitions for a restraining order against Ben.  Should the order be granted?

Some judges will find that Ben has engaged in a course of conduct, directed at Abe that seriously alarms, annoys and harasses Abe and that serves no legitimate purpose.  If Ben feels that Abe owes him money, he should sue Abe.  Other judges are likely to find that debt collection is a legitimate purpose, as long as no violence is used or threatened.  Being familiar with your judge and his / her opinions on the subject will give you an advantage by allowing you to craft your arguments accordingly.

Be Prepared

Proper preparation will also give you an advantage over your opponent.  This includes bringing any necessary documents to court with you for your hearing.  These documents may include phone records, copies of text messages and emails, photos of anything relevant and witnesses who will testify on your behalf.

If you have witnesses who will corroborate your side of the story, it is important that they personally appear for the hearing.  The judge may  have probing questions for this witness, so make sure you have a very clear idea of what he or she will say under examination.  You don't want to be surprised by anything.

If you intend to present witnesses, you should have those witnesses subpoenaed.  A subpoena is an order to attend court.  If you fail to issue a subpoena and the witness doesn't show up to court, you are out of luck.  You may ask for a continuance, the judge is likely to deny your request if you can't show that you did your due diligence by properly issuing a subpoena to ensure the witness's presence.

There is a process (and a fee) for issuing subpoenas to police officers who you want one to testify on your behalf.  It's a little complicated, but an attorney can help.

Consult With an Attorney

This is part of "being prepared".  Some people will appear at their restraining order hearings represented by counsel.  Others will come alone.  Of course, being accompanied by a qualified, local attorney is the best way to ensure that your case gets a compelling and convincing presentation.

A lawyer will understand the rules of evidence -- what is admissible and what is not.  Your attorney will draft the necessary documents and properly serve them on the opposing party.  He or she will issue subpoenas and prepare witnesses.  Your lawyer will make sure that you understand the important issues and that those issues are communicated to the court in a clear and concise manner. He or she should allay your anxiety and give you a confident peace of mind in knowing that things have been done correctly the first time.

Stay on Topic

This is the best advice I have for anyone involved in either side of a restraining order hearing.  I saved it for last.  Think of this tip as "dessert" -- your reward for reading my entire post.

Remember, as I mentioned above, the issue at a restraining order hearing -- the only issue -- is whether or not the petitioner can prove by clear and convincing evidence that he or she has been the victim of harassment.  That's the question that the judge must answer, and that's the only thing that the judge cares about.

The judge does not care if you're a good person.  The judge does not care if the other party is a bad person.  The judge does not care if the other party deserved whatever you did to him.  The judge does not care if the other party has lied about something irrelevant in the past.  The judge does not care if you've done nice things for the other party in the past, or if the other party has done mean things to you.  Do not waste the judge's time (and your own) with these types of arguments.  There are a lot of other cases on calendar and the judge is not interested in hearing irrelevant testimony, no matter how important these issues are to you.

Any time that a relationship devolves to the point where one person files a restraining order against another, it's safe to assume that both parties are angry about a lot of things.  You might have a lot that you want to get off your chest, but the courtroom is not the place to air these grievances. When you go off topic, the judge loses interest and you risk burying your good arguments in a pile of bad arguments.

Everything you say, every piece of evidence you present and every witness you call should be directly related to proving that harassment has (or has not) occurred.

If you or a loved one has questions about a restraining order, call my office for a free attorney consultation. Our expert staff has an excellent track record in litigating restraining orders all over Southern California.  (714) 449-3335.  Ask for John.

Thanks for reading.

Orange County Restraining Order Attorney

The Brag Board: Recent Success Stories

Until recently, I kept a running list of my success stories on my website, here.

The list is starting to get a little unwieldy, plus it's majorly inconvenient to edit the website every time I want to brag about the outcome of a case. For the sake of simplicity, I'll be posting (and boasting) here on the blog whenever I have some good news to share. For confidentiality, I've replaced the names of clients with initials.

These are few cases of which I'm particularly proud. These cases may or may not be similar to your case. Each case is unique and turns on its own specific facts. These success stories are not guarantees or predictions of future success. No attorney can accurately predict how your case will turn out without thoroughly reviewing the relevant facts and evidence.

People v. L.S. (hit & run in Riverside):  Case dismissed for violation of defendant's right to a speedy trial.  The violation occurred in 2012, but the DA failed to properly notify the defendant that a case had been filed against him. A warrant was outstanding for over 2 years before the defendant learned about his active case.

T.V. v. J.M. and related case of J.M. v. T.V. (Restraining orders in Southwest Riverside County):  I represented T.V. and successfully petitioned for a restraining order against her neighbor, J.M. J.M. then filed for a restraining order against my client, which we successfully defended (2 for 2).

S.T. v. G.P. (Restraining order in Torrance):  Successfully defended against a restraining order that my client's ex-girlfriend had filed.  She claimed that he was stalking her and sending harassing messages, but her story did not hold up under examination.

J.G. v. A.B. (Restraining order in Newport Beach):  Client's former roommate claimed he was harassing and stalking her. Successfully defended against her petitions for restraining orders (twice).


I hope to have more success stories posted here soon. If you or a loved one is accused of a crime or you have questions regarding a restraining order, call us for a free attorney consultation. 714 449 3335. Ask for John.

Thanks for reading.

Fullerton Defense Attorney

Driving Under the Influence of Marijuana in Orange County

The Orange County District Attorney's Office has taken an aggressive approach to cracking down on drivers who operate vehicles while under the influence of marijuana and other drugs. Their office now employs specially-trained prosecutors who are exclusively assigned to handle cases involving driving under the influence of drugs (or "DUID"). They take these matters seriously. You should too.

Even though marijuana is now legal for adults to use and possess in California, it is still illegal to operate a vehicle while the driver is under the influence of marijuana. I always tell my clients to think of marijuana like alcohol: I might be allowed to legally possess alcohol (because I'm an adult), but I'm not allowed to drive a car while I'm dangerously impaired. I can drink one beer and legally drive a car -- I can probably drink several beers and still drive a car safely and legally. But I cannot drive a car if my blood alcohol concentration is greater than 0.08%.

Unlike alcohol, however, there is no legal limit to clearly define when a driver is too stoned to get behind the wheel. In order to be found guilty of driving under the influence of marijuana, the District Attorney must prove that a driver was "impaired" by the drug to such a degree that he or she was unable to safely operate a vehicle. This is where it gets complicated.

Trying to determine a person's precise degree of marijuana impairment is difficult for several reasons. First, marijuana affects users differently, depending on a person's relative experience with the drug, the particular strain of marijuana, the method of ingestion (smoked, eaten or vaporized), and the user's unique psycho-physiology. Of course, an inexperienced user might have a very strong reaction to a dosage that Willie Nelson ingests before breakfast. See Maureen Dowd's piece in The New York Times from last year.

Also, unlike alcohol, peak blood-THC concentrations do not necessarily correlate with peak impairment. A toxicology report might reveal that a subject had a particular level of THC in his or her blood within an hour of being arrested, but this number is not very valuable in helping to determine the subject's actual degree of impairment at the time of driving.

Standardized Field Sobriety Tests ("the roadside Olympics") are designed and intended to detect drivers who are impaired by alcohol, not marijuana. During these tests, police are looking for the tell-tale signs that a suspect is too drunk to drive -- poor balance / coordination, slurred speech, etc. Since marijuana does not affect balance and coordination like alcohol, those tests are not reliable indicators of marijuana intoxication.

Cases of alleged driving under the influence of marijuana typically turn on the police officer's opinions based on his own observations before and after the traffic stop. These impressions are obviously very subjective and open to interpretation. The officer will testify that the subject "appeared disoriented" and was either "too relaxed" or "too nervous" (see the catch-22?). Prosecutors will also attempt to prove impairment by introducing evidence of bad driving (either too fast or too slow, following too closely to far, etc.). Any maneuver you make (or don't make) will be introduced as "proof" of marijuana impairment.

Our office has extensive experience defending "driving under the influence of marijuana" cases in Orange County and surrounding areas. Don't let the DA railroad you into a bad deal. If you or a loved one is accused of DUI for alcohol, marijuana or any other drug, call us for a free consultation.  Ask for John. (714) 449 3335.

Thanks for reading.

Fullerton DUI Lawyer

Resisting Arrest in California: PC 148(a)(1)

Section 148(a)(1) of the California Penal Code makes it a misdemeanor to resist, obstruct or delay the police while an officer is trying to do his job (or, "attempting to perform some lawful duty").  Basically, this code section makes it a crime to waste a cop's time.  If a police officer feels that you are making his job more difficult or time-consuming than necessary, PC 148(a)(1) gives him the authority to cite you or take you to jail for the evening, even if you haven't done anything else illegal.

"Resisting arrest" is a misnomer because you can be arrested for PC 148(a)(1), even if you weren't even under arrest until you began bothering the officer.  My clients tell me all the time, "I can't be guilty of resisting arrest, because I wasn't under arrest until I was arrested for resisting arrest".  Unfortunately, this law encompasses all sorts of behavior that "obstructs or delays" police while they attempt to perform their duties.  Cops and prosecutors will argue that the law includes behaviors which are merely annoying or inconvenient to police (talking back, refusing to identify yourself, getting in the way, creating a distraction, etc.).

Just because you were arrested for 148(a)(1) doesn't necessarily mean that you are guilty of any crime.  There are many possible defenses to the charge.  If police overstepped their legal authority, for example, then they were not "lawfully attempting to perform their duties", and you are not guilty of "obstructing or delaying" them.  Police frequently use PC 148(a)(1) arbitrarily to bully anyone who merely annoys them or who engages in free speech that they don't like.

If you or a loved one is accused of resisting, obstructing or delaying a police officer in violation of PC 148(a)(1), call our office for a free attorney consultation.  (714) 449-3335.

Thanks for reading.

Orange County Resisting Arrest Lawyer

Cleaning Up Your Criminal Record in California

If you've ever been convicted of a crime in California, there may be several options available to help you clean up your criminal record for a fresh start in the new year.

Your criminal record is public. Anyone who cares can quickly and easily access detailed reports regarding any criminal charges that have ever been filed against you, even if you were later acquitted of those charges or the case was dismissed. These public records will continue to cause you embarrassment, can prevent you from getting hired or promoted, and may also be grounds for loss or denial of a professional license.

Luckily, our office has extensive experience in helping people clean up their criminal records so that they can get back onto their feet and on with their lives.

I've previously written about expungements -- what they can (and can't) do, who qualifies and how the process works. In a nutshell, an expungment will dismiss an old case against you after you have successfully completed probation and served all other penalties. An expungement will not completely hide the fact that you once had an criminal charge, but will change aspects of your record so that your criminal history no longer shows a "conviction".

If you're currently on probation, you aren't eligible for an expungement. You might, however, be eligible for early release from probation. There is a process for asking the judge to let you off probation early. This is something we can help you with. Typically, a judge wants to see that you have completed a majority of your probation (at least 2/3 or 3/4 of the total term), that you have had excellent performance so far while on probation, and that there is some compelling reason that justice would be served by letting you off early (like going back to school or accepting a new job, etc.).

If you've ever been convicted of a felony, there are a couple ways that you might be eligible to have that charge reduced to a misdemeanor. The first option is called a "17(b) Petition". 17(b) petitions apply when you've been convicted of a crime that is categorized as a "wobbler" -- one that may be filed as either a felony or a misdemeanor -- if the DA elected to charge you with a felony. We may petition the court to later drop that charge to a misdemeanor. This doesn't work for every felony charge, because not every felony is a "wobbler" (not every felony may alternatively be charged as a misdemeanor. Drug sales, for example, is a straight felony and cannot be reduced by a 17(b) petition).

Since California voters passed Prop. 47 in November, some felons are now entitled to have their charges reduced to misdemeanors. Unlike 17(b) petitions, Prop. 47 petitions do not require any showing of "good cause", or a compelling reason why a reduction serves the interest of justice. For that reason, they may be easier to obtain in some cases than the old-fashion 17(b). Prop. 47 petitions can be filed at any time -- while a case is pending, while an applicant is currently serving a sentence after conviction, or even after the applicant has been released from custody. Prop. 47 took many charges that had previously been classified as "wobblers" and reduced them to straight misdemeanors. Determining a person's eligibility for relief under Prop. 47 can be complicated because the law includes a lot of exceptions and caveats, but we can help evaluate your chances of success.

If you or a loved one has questions about cleaning up your criminal history, call our office for a free attorney consultation. (714) 449-3335. Ask for John.

Thanks for reading.

Fullerton Expungement Lawyer

Am I Required to Show Police My ID in California?

Actress Danielle Watts had an unfortunate encounter with some of LA's finest last weekend, after someone called 911 to report suspected prostitution in a parked car. Apparently, the Django Unchained actress, who is black, was sitting in the vehicle and kissing(?) her boyfriend, who is white.

During the course of their investigation, police requested Ms. Watts' ID. When she refused to provide one, she was briefly handcuffed and placed into the back of a squad car. Eventually, her boyfriend produced her driver's license and she was released. Her refusal to provide ID has raised a lot of commentary from legal analysts, amateur and professional alike. What legal authority do police have to request ID from adults in public places? What rights do I have if I refuse to provide one? Put simply, am I required to show my ID to police upon demand in California?

The answer, like almost everything else in the law, is "it depends".

In most situations, you have no legal obligation to show your ID to police in California -- that is, you will not be arrested simply for the crime of "refusing to produce ID upon demand of a peace officer". An exception exists if you are operating a motor vehicle.  Of course, cops can demand to see your driver's license if you're observed committing some kind of traffic violation in your car.  Refusal to provide your driver's license after a traffic stop will result in a citation or arrest.

And then there's a lot of gray area.

Keep in mind, police can always ask to see your ID, just like they can ask you to make them a turkey sandwich. You have no legal obligation to do either (under most circumstances). The big question then becomes: what happens if I say "no"?

Police have authority to temporarily detain individuals if they have a "reasonable suspicion" that the subject might be engaged in some type of criminal activity. These "temporary detentions" usually involve little more than checking ID and sending folks on their way. "Reasonable" is the key word in these situations: is the cop acting "reasonably" in suspecting that a subject might be involved in criminal activity? Is the detention "reasonable" under the circumstances? These questions obviously depend on the specifics of each case.

So, while you generally have no legal duty in California to show your ID to cops upon demand, refusal to do so may prolong your "temporary detention", as Ms. Watts recently learned. If the police are justified in demanding to see your ID and you refuse, you may be arrested and prosecuted for "resisting obstructing or delaying a peace officer" under PC 148(a)(1), even if you would not have been arrested for the conduct that attracted attention from the police in the first place.

If you or a loved one has been cited for resisting arrest, or if you have questions about interactions with police in California, call us for a free attorney consultation. 714 449 3335. Ask for John.

Thanks for reading.

Fullerton Police Misconduct Lawyer

Cited on Catalina Island

You might be surprised to learn that Catalina Island (located just off the coast of Los Angeles and Orange County, CA), is home to small courthouse.  Pictured above, the one-room court is attached to the local Sheriff's station on Sumner Ave., right in the heart of downtown Avalon.  Most visitors probably walk right by without even noticing it's there.  The courthouse hears low-level criminal matters and is only open on alternating Fridays.

The most commonly charged offenses in the Catalina Courthouse include DUI (yes, even on golf carts), assault / battery, disturbing the peace, domestic violence, being drunk in public, possession of a controlled substance and fishing violations.

If you've been cited while visiting Catalina, you were probably given a "Notice to Appear" (that little, yellow piece of paper), instructing you to return here for an arraignment in about 8 weeks.  At your arraignment, you will have an opportunity to resolve the case by simply pleading "guilty", or you may begin the process of fighting your case by pleading "not guilty".  This is not the day for your trial.  If you intend to fight the case, you should expect to make a series of trips back to the island until your case is resolved.  This process can take several months.

As mentioned, the courthouse is only open on two days of each month, weather permitting. During rain storms, the ferries serving the island often stop running.  Intermittent ferry service can make it difficult to appear in court.  The cost of making several trips back to the island can also be prohibitive -- you're likely to spend more on travel expenses than you will on your court fines.

Save yourself the time, expense and hassle of traveling back to Catalina to appear in court -- have a local attorney do it for you.  As a private, local defense attorney, I can make most court appearances on your behalf without you being personally present.  My fees are probably less than what you would spend on travel alone.

We have extensive experience in the Catalina Courthouse and we get fantastic results for our clients. A misdemeanor conviction can follow you around and make your life difficult in many ways. Too many people are intimidated by the cost of making several trips back to the island.  Rather than fighting for the best possible resolution, they accept bad deals to settle their cases.  Don't be intimidated into accepting anything less than the best possible resolution for your matter.

If you or a loved one has been cited while visiting Catalina (Avalon, Two Harbors, or anywhere in between), call us for a free consultation.  (714) 505-2468.  Ask for John.

Thanks for reading.