How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Brent Blanchard Your Own Question
Brent Blanchard
Brent Blanchard, Lawyer
Category: Criminal Law
Satisfied Customers: 1975
Experience:  Separation of powers means what it says.
Type Your Criminal Law Question Here...
Brent Blanchard is online now
A new question is answered every 9 seconds

I violated a stay away order by texting and calling the person

Customer Question

I violated a stay away order by texting and calling the person who put it on me. Is there any way to avoid jail time
Submitted: 6 years ago.
Category: Criminal Law
Expert:  Brent Blanchard replied 6 years ago.
Thank you for your question.

California is like most states in that it's very hard to predict whether a repeat violation of a stay away order will result in jail time.

At one extreme, it's quite unlikely if there was only one phone call and one text message, AND the content was something like "Happy Birthday" or "Do you want your car keys?", AND there was no shouting or yelling or arguing or any other ugliness AND everyone has been on good behavior with the entire world since the "events" that led to the order being issued AND the hearing on making the order permanent has NOT yet taken place.

At the other extreme, even a single peaceful "Happy Birthday" call or text message can lead to jail time if the caller gets sucked into an argument, makes threats of physical violence, or otherwise does the sorts of things that can be presented to a judge as evidence that the "offender" has no respect for the law and court orders.

Finally, a lot also depends on the attitude presented to the judge, evasiveness vs. candor, signs of genuine remorse with ABSOLUTELY NO further violations since the event (the more there are, the worse it is for the offender), and the mood of the judge on that particular day all make a difference.

I have seen judges harshly question people in that position with the polite equivalent of "Please explain exactly what part of 'do not contact' the [victim] don't you understand?" Answers that start with "I thought..." sometimes don't play well.

Wish I could give you some statistics on this, but I am aware of no studies that quantify how these things play out under differing circumstances.

Thank you.

Brent Blanchard and 5 other Criminal Law Specialists are ready to help you
Customer: replied 6 years ago.
I have a follow up question to the previous question I had asked about the restraining order yesterday. I was told that if I can show proof that the person who had requested the order against me has talked to me on the phone for more than 3 minutes that they have violated the restraining order as well and I may not serve jail time at all because of it. Is this true?
Expert:  Brent Blanchard replied 6 years ago.
Thank you for your follow-up.

I'm not aware of any "three-minute rule" in the statutes or the case law, but I do know this: Most judges do NOT take kindly to a person requesting a restraining order, then ignoring it themselves.

One judge, while I was in court about two or three years ago, warned a person who really knew how to "play" the system that *if* he learned about a situation where the "victim" enticed the subject of the restraining order to call or text or e-mail her, and the guy went along with it, he would consider that to be a conspiracy to violate a protective order (that's the name in that state) between the two people, and his sentence for the "victim" would be a severe as allowed under the law for that misdemeanor offense.

From a persuasion/evidence perspective, staying in a telephone conversation for more than 60 seconds would convince me that the "victim" was either not objecting to the illegal contact, or welcomed it, or was stupidly enduring verbal abuse, or was dishing out his or her own verbal abuse to the alleged offender. NONE of those possibilities would lead me to conclude that the alleged violator really did anything that should be punished.

Just beware of presenting such facts as a rhetorical question that invites in unfavorable answer: "Why WOULD so-and-so stay on the phone for so long?" Instead, complete the circle of logic with something more like: "So what can we know from so-and-so engaging me in a four-minute phone call which I have to admit I should never have made? The best answer is the truth: [he or she] was not threatened, had no problem with talking with me, and was trying the justify the lies told to this court to get a restraining order that was not justified and was never needed."

Spoon-feeding the answer is often better than leaving it up to an active imagination which might "fill in the blanks" in a way unfavorable to the party making the argument.

Thank you.