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AlexiaEsq.
AlexiaEsq., Managing Attorney
Category: Criminal Law
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Experience:  19+ Years of Legal Practice in Criminal Law.
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County Judge issues restraining order on the basis of police

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County Judge issues restraining order on the basis of police charges. So-called victim didn't file charges, doesn't want restraining order. Victim holds that police lied on report. She wants to see the restrained husband. If she does, does she thereby make him a felon?

Hi, thanks for your inquiry! I have been practicing Criminal law for 17+ years and have specific experience with issues like yours. That being said...

With regard to your post:

County Judge issues restraining order on the basis of police charges. So-called victim didn't file charges, doesn't want restraining order. Victim holds that police lied on report. She wants to see the restrained husband. If she does, does she thereby make him a felon?

No, but unfortunately he can still be charged with the misdemeanor of violating that restraining order if it is found that he was complicit in the meeting (some level of intent). See California Penal Code section 276.2 ( http://codes.lp.findlaw.com/cacode/PEN/3/1/9/2/s273.6 )

Thus, if she cares about his future, she may not want to cause him to be in violation of same. On the other hand, the express dictates of the RO will define what he can and can not do. If it says he can not communicate with her, he best not. If she calls him, he should not take the call and not speak to her. If the RO only says he may not be within 500 feet of her, but no restriction on communication, then that would be different. But, if she then comes to his house, and causes him to be in violation, and it is not very clear that he had nothing to do with it and tried to correct it, again, he could be in trouble. The worst part is, if he gets charged, even if he tried to avoid, he then has to fight it to get justice, and to do so properly usually requires money to hire a person trained to handle such. It is best, XXXXX XXXXX obey the order and use legal means to get that RO lifted, if possible.

Note, however, that the State does not need the victim's consent to issue an RO or to enforce it. But it is also true that if the victim is not being inconsistent when now not accusing the alleged perpetrator of the violence, and the evidence that caused the RO is now no longer so credible due to the victim's lack of ever accusing him, or at least if it is clear that there is no obvious risk of future danger and the victim does not wish the RO, a court may lift it, certainly.

 

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Sincerely,

Alexia Esq.



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Customer: replied 3 years ago.

Thanks, XXXXX XXXXX Everyone has told her that if she communicates with me she makes me to be a felon, but she's disabled and depends upon me. The court has been torturing her under the pretext of protecting her. This I know just from her testimony in court.

Depending on the case, RO violations can be felonies. And traveling across state or tribal boundaries with the intent to violate the order may be punishable as a federal offense under the Violence Against Women Act. So it is not always that simple. Second offenses can be felonies. Injury caused can implicate worsening penalties as well.

Also, you mention she is disabled and depends on you. This can actually be a negative - as it may cause them to believe she has a reason to lie to protect you, because she is vulnerable/needs you to survive, etc. The implication being that even if abused by you, she will lie because abuse is better than starving. So, even if innocent, the set of facts can be detrimental.

If I were you, I'd consider another way. Let's face it, just talking to her will not likely be sufficient if she depends on you. So you need this lifted, if there is no reason for it, not just sneaking around it putting your own freedom in danger. What will she do if you are in jail for violating? Not only will you be unable to work and earn, but you can't assist her at all in other ways. You see?

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