Restraining Order: Criminal or Domestic?

Written by Daniel Johnson of Willis Johnson & Nelson

When the tension of a relationship ending leads someone to react with violence or in a threatening manner, it is not uncommon for the criminal justice system to step in and place significant restrictions on an individual’s liberty through what are commonly referred to as “restraining orders.” These orders generally fall into one of two categories: domestic violence restraining orders and conditions of pretrial release. Often, individuals have both types of “restraining orders” in place at the same time. It is important for anyone charged with a crime of domestic violence to understand the differences between these two types of “restraining orders,” the impact that these orders have on their rights, and the consequences of violating these orders. The following is based on a common scenario in the criminal justice system that illustrates how “restraining orders” work.

When someone is arrested and charged with a crime of domestic violence, judges will set the conditions upon which an arrested person may be released from jail. In cases of domestic violence, magistrates often impose a “restraining order” in addition to requiring a secured bond. The “restraining orders” entered by the magistrate prohibit the arrested individual from having contact with the alleged victim and restrict the ability to visit the home and place of employment of the victim. If a child custody order is already in place, these “restraining orders” may require compliance with the order. These orders may also address the possession of personal property. If someone violates a “restraining order” imposed as a condition of release from jail, a judge may increase the bond or add additional conditions of release. Violation of these orders do not, however, lead to additional criminal charges.

The other type of “restraining order” that is often imposed is a domestic violence protective order (“DVPO”). These “restraining orders” are far more expansive than the no contact orders imposed as a condition of release from jail. In addition to prohibiting contact with someone, a DVPO can determine who maintains possession of a residence, a car, and personal property. A DVPO may temporarily determine custody of children and pets and may impose child support and alimony obligations. An individual subject to a DVPO cannot possess firearms. A DVPO is usually in place for a year and can be renewed. While in place, a violation of a DVPO can result in new criminal charges or civil contempt proceedings.

Whether subject to a “restraining order” due to an arrest or due to the imposition of a DVPO, the impact can significantly impact the rights of an individual and increase the exposure to criminal or civil sanctions. It is essential that people subject to such limits on their rights consult with an attorney to minimize their exposure and protect their rights.