Portland Domestic Violence Attorney / Lawyer,
Jennie L. Clark:
Defending those Accused of Domestic Violence (The Respondent)
Sometimes an overzealous approach by law enforcement results in serious criminal charges after a relatively minor dispute when those involved would rather the legal system not be involved in retrospect. Many times in the heat of an argument one partner calls the police with the belief that the police will solve their problems. Sometimes both parties are arrested; sometimes the wrong party is arrested. Later, one partner will recant his/her story and the State will still want to press charges.
When one partner seeks to end a relationship, they may act vengefully by making false and retaliatory accusations of domestic violence in order to secure additional compensation, custody of children or to punish a former partner for perceived wrongs during the relationship. Sometimes the respondent is the victim of a vindictive ex girlfriend/boyfriend or wife/husband that knows how to manipulate the system by spending the morning in the courthouse filling out forms resulting in an order for the respondent to move out of the house immediately. Under Oregon landlord/tenant law, one receives 30-60 days notice to move out of his/her home. Thus, the respondent faces immediate harsh consequence of an immediate eviction from his/her home due to a temporary restraining order, even if he/she is later vindicated in court.
A civil domestic violence restraining order or stalking order may be difficult to expunge and will appear on criminal background checks far into the future, resulting in loss of potential employment and/or housing. Losing a contested restraining order case can also result in the loss of one’s right to bear arms. It is important that the accused receive counseling regarding long term issues, such as expungement information regarding any associated crimes, when determining the best option. Additionally, any statements made during a contested restraining order hearing can be used against the respondent in a future criminal case, even if a criminal case is not pending at the time of the hearing. Thus, it is important to receive advice from a lawyer prior to testifying in a contested restraining order hearing.
Can the Restraining Order be Challenged?
A restraining order may be challenged by the respondent (the accused). In many cases, the person restrained should contest the Restraining Order and request a hearing for such purpose. If the respondent does not request a hearing within 30 days or the period of time listed on the paperwork received, the respondent loses his/her right to a hearing and the Restraining Order stays in effect for a period of one year. It can then be renewed for an additional year, and another, and another.
If I Win, can the Temporary Restraining Order be Expunged?
Yes, it is possible, but only at a judge’s discretion and usually the consent of the “victim.” This involves the filing of a motion and attorney’s fees for an outcome that is not guaranteed.
Can my rights to carry a gun be affected by a restraining order?
Losing a restraining order hearing can affect one’s right to bear arms and thus it is important to seek legal advice prior to making a decision of whether to contest a restraining order. 18 USC 922(g)(8).
Why may a respondent want to challenge a Restraining Order when he/she doesn’t want contact with the petitioner anyway?
Those who are restrained always have a Restraining Order over them and are always “at risk” of having the state, their spouse or significant other allege that the Restraining Order has been violated, even if it was the spouse or significant other that initiated the contact. The state can enforce a restraining order even if the significant other or spouse no longer wants the restraining order in place. If this occurs, the restrained person will be arrested and likely sit in jail for up to 60 days until trial or unless bail is posted. Some counties require the full cash amount of $5,000 as bail. Other counties will allow an arrestee go on his/her own recognizance, provided that she/he agrees not to contact the alleged victim.
Another option to trial is a settlement of some sort. Due to the risks of losing everything at trial when the evidence is stacked against the respondent, it may be advisable for the respondent to negotiate a no contact agreement, which has less risk involved. If the respondent damaged any property or caused doctor bills to be incurred, the respondent may want to make a monetary offer to the petitioner. Sometimes the respondent just needs to figure out a way to obtain his/her property, which can be worth a lot. Every settlement is different and needs to be customized to the parties involved.
What related criminal law charges may one face in addition to a restraining order?
Assault and Harassment are commonly charged against a party if a police officer is called to the home by a spouse, significant other or neighbor. If the officer finds evidence of violence, someone will likely be arrested and the District Attorney will likely charge one or both parties with Assault in the Fourth Degree and Harassment. These two charges are both misdemeanors. However, under the following circumstances you may be charged with Felony Assault in the Fourth Degree:
- Children are present
- You have previously been convicted of assaulting this same person
- You have three previous Domestic Assault Convictions
What are the options if you are charged with assault and/or harassment for the first time?
To enter into Diversion, you must plead guilty to the charge. The Judge then accepts your plea of guilty but holds over sentencing to allow you the opportunity to complete a Batterers Specific counseling program that usually lasts over a year. During this program, you must agree to abstain from use of alcohol and drugs and periodically provide a urine sample for testing. In addition, you agree to “cooperate” and “participate” in the counseling. You may also be subject to polygraph examinations to assure that you have not had unauthorized contact with the “victim.” Further, you can have no contact with the victim without the approval of the program director. Commonly, judges and probation officers require at least four months of no contact, even if the “victim” desires contact.
Benefits and Risks of Diversion: Once you complete the requirements of the Diversion Program, the criminal case will be dismissed and you will not have a conviction on your record. However, should you violate the agreement, the Judge will likely accept your previous plea and sentence you. At this time you will have a conviction on your record. To make matters worse, your sentence will usually require that you complete the same Batters Specific Program you just failed. The second time around, if you fail the program, the Judge can end your probation and give you a longer jail sentence. It is easy to violate the terms of diversion if you are not careful. If you use alcohol or drugs, fail to contact your PO, or fail to participate in the counseling in the manner that your counselor sees fit or have contact with the victim, you will likely be found to have violated the terms of diversion. If you are not a particularly organized person, then you might want to consider a trial or have your lawyer try to negotiate a jail sentence only.
Trial: Some individuals enter diversion even though they are innocent because they do not want to risk a conviction should they take the case to trial. Sometimes, however, trial is the best option. Rather than set up a bunch of hoops to jump through with the diversion program, a trial is sometimes easier to win. For instance, in some cases, the alleged victim may be an effective witness by asserting that you did not do what was alleged or that the police took the story out of context and that you were defending yourself.
Where can I go for counseling? Try the men’s resource center; it is for women too. www.portlandmrc.com
What if the Petitioner who obtained a restraining order against me keeps calling me and wants to meet with me? Don’t. It is a trap. Avoid calling the person who obtained the restraining order against you, even if that person begs you to call him/her. If that person tries to call you or see you in person, hang up the phone, walk or run away. Even though the person who sought the restraining order is the person who initiates contact, you can still be subject to arrest. Some alleged victims chase their alleged perpetrators around with the restraining order in order to get them arrested. They are using the restraining order as a sword and not a shield and this sort of behavior makes it difficult for genuine victims of domestic violence. If someone sought a restraining order against you, let that person live with his/her decision.