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Hello, my name is Brian. I am a California-licensed attorney and I'm glad to take your question. I'll start by saying that there's not going to be an instant fix for this, but I want to talk about how to keep your situation from spiraling out of control. In which California county did all of this occur?
Ok, that's good. Would it be correct to say that this is the first time that your husband has ever been arrested or charged with a crime?
I apologize in advance if any of these questions feel intrusive. I ask, in part, because they will help me to understand how law enforcement and the courts might perceive the situation with your husband.
Great. You had mentioned that he had never committed a crime in his life, but that's bit exactly the same as whether he's ever previously been arrested or charged.
Also, it's a little unclear as to what his status is. You said that you managed to drop the charges, but you also mentioned an upcoming court date. When is your court date, and what is the nature of the court date?
Forgive my typo in that last post. I intended to say "that's not exactly the same"... Not "that's bit exactly the same." I apologize for any confusion.
Part of what confuses and concerns me is that the decision to drop or prosecute a case is made by the District Attorney's Office. The police or sheriff's office will make a report to the DA's office with a recommendation about whether to prosecute, but the DA decided if there's enough evidence to prosecute and, if so, whether justice would be served by prosecuting. So it's certainly possible that the decision has already been made to not prosecute your husband, but who told you that criminal charges wouldn't be filed with the court?
Ok, that's great news. To be straightforward, I was going to say that, without any actual physical injury, the odds of prosecution would ordinarily be very low in a situation like the one you described. Threatening to kill someone can, by itself, rise to the level of a felony in California. It's a very serious crime. However, law enforcement usually has enough good judgment to understand that spouses can make that sort of mistake and that a threat of that nature does not amount to any true danger to the individual being threatened...
So that said...
We have to be realistic about the legal situation here. Although the police have decided to recommend against pressing charges, and although the District Attorney's Office has determined that charges will not be filed, the fact is that your husband screamed at you, threatened to murder you, while seven months pregnant and suffering from pregnancy complications. An organized society cannot allow for that to happen, and there are consequences for those actions. It's fortunate that you can expect this to go no further, but the next time, you both may not be so lucky....
There are three parties involved here. There is you, the "protected" party. There is your husband, the "restrained" party. And there is law enforcement...
The bad news is that out of all three parties, the protected party has the least amount of rights in the situation. Technically, You are not even a you are not even a party to the action… party to the action... You are not facing criminal charges, nor are you restrained from exercising any of your freedoms. If the protected party contacts the restrained party, the protected party has not violated any order or broken any law...
The only thing a protected party can do in the situations, under ordinary circumstances, is make their wishes known to law enforcement. But I have to tell you that it's procedurally inconvenient for law enforcement to amend a restraining order, especially when it's scheduled to expire in less than a week...
Law enforcement, of course, has discretion to request modification of such an order, but they typically won't--they would rather let the order expire naturally after the charges are dropped at the arraignment. They see it as a cooling off period for your husband and they also don't want to be in the business of lifting and re-implementing restraining orders as spouses experience their ups and downs--if someone is going to get them involved, they expect you to really want and need their involvement. They usually won't entertain shortening the order...
Separately, a restrained party can generally file a request for an emergency order to move up a court date. This is called a motion for an "ex parte" (pronounced "ex-par-Tay") order. However, I have to be straightforward that they court will usually not entertain such a request, and will typically do it only if there's a true danger of immediate, irreconcilable harm. I can only help by being completely honest, and the truth is that, with only a week to go, it would rarely make sense to do anything other than wait for the court date--the court can then vacate the restraining order and you can both go back to your lives
So in summation, there would ordinarily be nothing that you, as the restrained party, can do except make your wishes know to law enforcement. Your husband does have a legal option that might be exercised if he can make the right argument, but it would normally just make sense to wait for the week to expire if that's all that's left. He exercised extremely poor judgment, and this was the consequence.
So I wish that I had better news, but I really do have to be direct. Were all of your questions answered? Was I able to answer your question in a way that was informative and helpful as possible?
Well, let me know if further clarification is needed. Thank you!
A judge wouldn't see you, unfortunately. It would be procedurally improper and a judge couldn't help you even if s/he wanted to do so.
Correct. The restraining order is a matter between your husband and law enforcement. You have to understand that even if the restraining order was lifted, the court would have no assurance that your husband would follow through on helping you. They would need to hear from your husband--if you're concerned about getting your husband in trouble by talking to him about this, you can hire an attorney on his behalf and that person could work with him, but I want to again emphasize that a court would need to see an immediate danger of significant, irreparable harm--that's a tough standard.
Certainly. Was I able to answer your question to your satisfaction?
Me too. In the heat of the moment, I don't think your husband realized how serious his word were or the danger he created. I'm just glad that we're not having to discuss how to go about getting the criminal charges against him dismissed. I truly wish a successful end to your pregnancy and that the next week will pass quickly. In the meantime, take care of yourself, and I wish the best.