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How to Fight a Restraining Order

 
03/15/2022
Weinstein Legal

Last Updated: September 14th, 2022 at 11:23 pm
Read Time: 6 Minutes

The Florida criminal justice system makes it extraordinarily easy for the alleged victims of domestic crimes and other offenses to obtain restraining orders. If you’ve been served with a domestic violence injunction or another type of restraining order, it’s vital you don’t make matters worse for yourself by inadvertently or intentionally violating it. As the respondent of an injunction or the defendant of a criminal charge, you have legal rights. Contact a criminal defense today for professional legal representation.

The Restraining Order Application Process

Whether you’re in Orange, Broward, Palm Beach, or some other Florida county, the process for filing a restraining order is remarkably similar. The person filing the order is referred to as the petitioner, and the defendant is the respondent. In many cases, the restraining order results from an alleged offense, like domestic battery, but that’s not always the case.

The petitioner can apply online or in person. In most cases, the court will award a temporary restraining order. This does not mean that you, as the respondent, are guilty of any crime. It’s simply a document stating that you can be arrested for violating its terms. The court will provide the petitioner with an emergency service packet to give to the police to serve the respondent. Temporary injunctions are valid for 15 days. The courts will set a hearing within the 15-day period to determine whether or not the injunction should be made permanent. Permanent injunctions can last for a year or longer. If you have been served with a restraining order, it’s to your benefit to hire a criminal defense lawyer before this hearing, even if you don’t intend to fight it. Your attorney can help prevent you from offering information that can hurt any criminal cases pending against you.

Types of Restraining Orders

Florida has several types of restraining orders. The circumstances surrounding the offense determines the type of injunction:

Domestic Violence Injunction

A domestic violence injunction requires that the petitioner meets the legal definition of a domestic relationship with the respondent.

Repeat Violence Injunction

This type of injunction requires that the petitioner was the victim of at least two incidents of stalking or violence within the past six months. It can also be applied in situations where the petitioner seeks a restraining order on behalf of a minor child living in the home.

Dating Violence Injunctions

For a petitioner to qualify for a dating violence injunction, they must have been in a romantic relationship with the respondent within the past six months.

Sexual Violence Injunctions

For the courts to issue a sexual violence injunction, the petitioner must be the alleged victim of sexual violence or seek a restraining order on behalf of a minor child who has been the alleged victim of a sex crime.

Stalking Injunctions

Stalking injunctions can be filed against anyone who has been allegedly stalking the respondent, regardless of the relationship or dating history. Like other injunctions, this can be filed on behalf of a minor by a parent or guardian.

Regardless of whether you agree with the type or terms of the restraining order, violating a restraining order can result in an arrest and additional criminal charges.

Florida Penalties for Violating a Restraining Order

Florida state statute 741.31 makes it a misdemeanor of the first degree for most violations of restraining orders. This is punishable by up to a year in county jail and $1,000 in fines. In addition, an arrest can result in a criminal record and an extension of the injunction.

If there are two prior convictions for violation of the restraining order against the same victim, the third violation is charged as a felony of the third degree, punishable by up to five years in prison and $5,000 in fines.

Under FSS 784.048, it’s a third-degree felony for the respondent of a restraining order to stalk the petitioner, punishable by up to five years in prison and $5,000 in fines.

Being Served With an Injunction

If you are served with the injunction, it’s important that you don’t argue or become confrontational with the police. In most cases, the officers serving the injunction will have no specific knowledge of the allegations against you, and you could end up hurting your position or even getting arrested. Do not violate the restraining order in an attempt to get the petitioner to withdraw the order. This can open you to a violation of a restraining order charge or a charge of witness tampering if there are pending criminal charges already against you.

Actions to Take if You’ve Been Served

If you’ve been served with a restraining order:

  • Avoid any contact with the petitioner.
  • Surrender firearms when asked by police.
  • Make arrangements through the local police department if you need to pick up clothing or other belongings from your home.
  • Contact a criminal defense lawyer who has experience with getting restraining orders dismissed.

Do not fall victim to deception. Avoid contact even if the petitioner says that they will meet with you. It’s not uncommon for a petitioner to set up a respondent by inviting them to meet to discuss the underlying issues, only to have them arrested for violating a restraining order.

Frequently Asked Questions About Restraining Orders

If you are seeking tips on how to fight a restraining order, understand that the legal system can be extremely complex. If you’ve been served with a restraining order, don’t try to go it alone. Contact a criminal defense attorney in your area.

Is There a Difference Between a Restraining Order and an Injunction?

The term restraining order and injunction are often used interchangeably in criminal law. However, many types of injunctions have nothing to do with criminal law. Suffice it to say that all restraining orders are a type of injunction, but not all injunctions are restraining orders.

Is a Permanent Injunction Really Permanent?

Many temporary injunctions are dismissed after the 15 day period. Either the judge does not believe there is enough reason to extend the injunction, or the petitioner has decided it’s no longer needed. Most judges are reluctant to limit any individual’s freedom indefinitely. “Permanent” restraining orders can be issued for a number of years. The petitioner will have to request an extension if they believe the restraining order is necessary. The respondent’s attorney can also petition the courts to dismiss the injunction if it is unjust or causes an undue hardship on the recipient.

Can I Get an Injunction Dismissed?

Your best chance for having a restraining order dropped is at the 15-day hearing, which is why you don’t want to complicate matters prior to that meeting. If the injunction is made permanent, the petitioner can get it dismissed upon request, or a judge can revoke it.

Hire a Professional Restraining Law Attorney

If you’ve been served with a restraining order, don’t just assume your criminal defense lawyer will be able to assist you. Make sure they have specific restraining order law experience. And if you aren’t represented, contact an experienced restraining order attorney near you today.

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