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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 27450
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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If a person has a restraining order against them because of

Customer Question

If a person has a restraining order against them because of a sexual allegation that was dropped by the DA can this order be removed?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 1 year ago.

Hello,

In what US state did this happen? When you say the charge was dropped what do you mean? That is, did you have to serve some kind of a sentence to get the dismissal? How long is the order supposed to be in effect. Is this an order at one point asked for by the DA or is this a civil restraining order?

Customer: replied 1 year ago.
This is in the state of CA. Charges were dropped by DA for insufficient evidence. No, case did not go to trial. The order was for three years. The restraining order was not asked by DA. It was filed by plaintiff's attorney before any charges were filed in the criminal matter.
Expert:  Zoey_ JD replied 1 year ago.

Thanks for the reply.

The order is a civil order and not a criminal order. You could get a lawyer and petition the civil judge to lift the restraining order. How successful that petition would be would depend upon the facts and circumstances of the case and the persuasiveness of your lawyer's argument.

However, the difference between the civil and criminal burden here will be a big factor in the judge's decision. That is, a DA has to prove his case beyond a reasonable doubt to get a conviction on a case. That's the heaviest burden in all of law. Any doubt benefits the criminal defendant and results in an acquittal.

In civil court, the plaintiff just has to prove his case by a preponderance (the majority) of the evidence. There can be plenty of doubt and the plaintiff can still win. Therefore, the fact that a DA doesn't think he has enough evidence to convict doesn't mean that a civil judge can't have enough evidence to issue a three year restraining order. In other words, the criminal court dismissal isn't automatically going to be enough in and of itself for a petition to be successful.