Video – Attorney Andrew Dósa Discusses The Role Of Restraining Orders In The Civil And Criminal Side Of The Legal System

Ray Hrdlicka - Presentador - Attorneys.Media

Hi, this is Ray Hrdlicka – the host of Attorneys.Media and today we have Andrew Dósa , a criminal attorney and a civil attorney in Alameda County, California, actually practices all over the San Francisco Bay Area. Today let’s talk about something that has been used in the past in the criminal realm and in the civil realm, but we’re going to get a little bit in depth here to see whether or not it actually is worth the effort to do it, and that is restraining orders.

You may have read, you know, different variations of opinions of they don’t do any good… they do, do some good, they’re wonderful, and I don’t know where it falls in between. So, I wanted to ask somebody who, based upon an earlier conversation, Andrew, you’ve done a heck of a lot of restraining orders in the past year. So, let’s talk about that. Give me your opinion as to why things may have changed in the past about restraining orders and how can somebody best use them?

Andrew Dósa – Civil And Criminal Defense Attorney – Alameda County, CA

Well, hey, Ray, thanks for having me on your podcast today. I wanted to mention that over the last 30 years or so, I’ve been actively involved in many, many restraining order cases. There are some cases that have an overlap with pending criminal cases. We can talk about that in a minute. But I have been involved in probably about 75 restraining order trials.

Let’s talk about the types of restraining orders that are available in California. In the old days, there used to be basically a single restraining order case. It was a civil harassment restraint. That was basically what it was called. Then the legislature, in its infinite wisdom, decided to break it down into different categories. Now there’s a domestic violence restraining order case. There’s elder abuse. There are also expansions into things that more directly involve gun use. So, there’s even a restraining order that can be pursued because someone is afraid that a person who has a gun may be a threat because of the presence of a gun. So, there are many, many different types.

I will say there’s also a workplace violence restraining order case that may actually implicate the duty… a duty onto the employer for the sake of the benefit and safety of the employees. That’s interesting. Yeah. So, the question is, do they work? And the answer I would say is generally hey do. I would say that the vast majority of people, when they have a court order or they are aware of laws, the vast majority of people are going to obey those laws. There are certainly many that don’t. Restraining orders are not, by themselves, so powerful an influence that if someone was inclined to commit crimes anyway, that that may stop them.

A perfect example of that is you can impose on your society as many gun laws as you like, but there are people that will always have illegal guns, and it does not matter what the legislation will say. There’s evidence that suggests that gun laws, if done right, can have some favorable impact, but the reality is the vast majority of my clients that I represent in criminal cases involving guns, 90 plus percent of them illegally possess those guns, so laws aren’t going to change them.

But to get back to restraining order cases, I think there’s clearly some benefit that happens. And part of it is because of the teeth that’s involved in it. If there is a violation of a court order, I can assure you that if that issue comes to a police officer or a police agency, they will be much more inclined to protect the court order and the judges that impose those orders on people. So, they will take them a little bit more seriously. They also field calls generally to try and stop people from impinging on the freedoms of others when there is a restraining order in place. Sometimes they won’t refer to the DA for prosecution, but I’ve been involved in several cases where there is a criminal case now that is generated because of a violation of a civil restraining order. So, I think generally they do work. Nothing is perfect with us flawed humans, but generally I think that they do have a salient and beneficial impact on the person who has the order for protection.

Ray Hrdlicka - Presentador - Attorneys.Media

So, it sounds like with a restraining order, you know, police officer shows up whether it’s harass mentor a domestic violence issue, if a law enforcement shows up, then it’s not a matter of he said – she said and they have to figure out what happened in the past in the past 30 minutes in the past hour or whatever… that restraining order is going to influence their opinion on the matter, obviously.

Andrew Dósa – Civil And Criminal Defense Attorney – Alameda County, CA

Right, well I’ve seen cases where a client will show the text message received by the person who is subject to the court order. That’s pretty easy for a prosecutor and a police officer to figure out. Also, the language of this… of the order may be significant if you are required to stay 100 yards away from someone’s residence and you’re standing out by their car and the car is one of the things that you also have to stay away from. It’s pretty clear the police officer doesn’t have to do a whole lot of work to figure out that there’s a violation of the court order.

Ray Hrdlicka - Presentador - Attorneys.Media

Is it a slap on the wrist?

Andrew Dósa – Civil And Criminal Defense Attorney – Alameda County, CA

It’s not a slap on the wrist if you have a restraining order and you can no longer possess a gun for 10 years and you love your guns and you lawfully possess guns. And it’s not a slap on the wrist if you get a criminal case where you now have to explain that to someone like a state agency that’s licensing you, so there can be a substantial impact.

Ray Hrdlicka - Presentador - Attorneys.Media

Okay, so there’s snowball effect, peripheral snowball effect of a violation of a restraining order and the subsequent penalty for that.

Andrew Dósa – Civil And Criminal Defense Attorney – Alameda County, CA

Correct, and so we do know this, you can’t get arrested for, you cannot get arrested for violating a restraining order all by itself, you can get arrested because, well let’s back up, I’ll restate that. Generally, a violation of restraining order does not result in an incarceration because it’s not a criminal matter. But violating a court order where you get arrested and get prosecuted for violating a court order that can result in a jail sentence. So, if you have a bad time and you can’t let go of a girlfriend or a boyfriend and you’ve been in this relationship and it’s a rocky road and you’re not getting the clue, you may get sobered up if you get arrested and you’re suddenly staring at four cement walls with bars all about the place and you don’t get to decorate your cell either, so it’s not exactly a homey place.

Ray Hrdlicka - Presentador - Attorneys.Media

I appreciate the commentary throwing that in. So, in terms of…are domestic violence, you know, let’s say not in harassment, but a domestic violence restraining order, is that an automatic application after a domestic violence incident?

Andrew Dósa – Civil And Criminal Defense Attorney – Alameda County, CA

It is not. The person who wants to have a protection, well, there are two ways that it could be but not necessarily. That’s the easy answer. First, the person who feels that they have endured domestic violence can report it to the police. It can become a criminal case. That’s one way where there would be a criminal protective order. By the way, and also if a person is the victim of domestic violence and a criminal case is pursued and that person decides that they would like to have contact with the other person. The court will not automatically grant that request.

It is common for, it was common for people to basically step back and say, well, it’s really not bad. I just wanted him to behave and so I don’t want an order. That doesn’t happen anymore. We can thank the OJ Simpson case. That really was more than any other thing, a trigger for the true enforcement of domestic violence protection. But I was going to also say there could be a criminal protective order if there’s a criminal case. And then if the person, if it doesn’t rise to the level of criminal matter or the person hasn’t reported to the police, they would have to file the request, formally called a petition now, just to call the request, for a restraining order. So, they would have to do something active to get a court order of some sort. Not criminal again, just civil.

Ray Hrdlicka - Presentador - Attorneys.Media

Okay. Um, one interesting issue that I noticed in reviewing some of the, or, being as a, in the past life as an investigator with domestic violence cases, is that, one party petitions for the domestic violence or excuse me, for a restraining order, obtains it. But then the other party petitions for a restraining order also and that’s granted too. And to me, that just seems almost counter productive to the first one. Is it a defense tactic on the person who obviously received or, excuse me, who the first restraining order was applied to, is that simply a defense, a legal tactic, a defense mechanism to, you know, avoid having further criminal issues down the road? You know, where I’m going to get one against you and you’re going to get one against me?

Andrew Dósa – Civil And Criminal Defense Attorney – Alameda County, CA

Right. Well, I think the answer is probably not. It’s not that common. But if you do pursue a restraining order against the person who was initially filed one against you, it doesn’t mean that that’s a defense for your behavior. The question then is, were both of you combatants? Is it a mutual combatant situation?

To answer your question about whether filing a counter request for a restraining order, whether that’s a defense, it is not a defense. The court would evaluate the behavior of the party who was accused in the first matter and would…evaluate the behavior of the party accused in the second restraining order case and there are cases where maybe both of them need to be away from each other. And it doesn’t have to always be violent in the sense of physical…it could be violent in terms of the language… it could be it could be the yelling and screaming…could be throwing things against the wall where there’s no physical contact, contact clearly in a domestic violence situation uh…man it’s not a good it’s not a healthy environment you know maybe that courts are doing the party’s a favor by getting them separated because they just aren’t wise enough to walk away from a relationship that’s not good for themselves or the other.

Ray Hrdlicka - Presentador - Attorneys.Media

So, let me ask this last question about restraining orders. Obviously, in the past, as an investigator, I was asked this question, you know, from the husband or the boyfriend. I have a restraining order against me, and I’m at work, and she comes to my work. Am I in trouble?

Andrew Dósa – Civil And Criminal Defense Attorney – Alameda County, CA

The easy answer is no, because that person did not initiate some conduct that was a violation of the limitations on their behavior, or the closeness to the other party. In fact, I think that there would be some sympathy generated for that person, and really the best answer for them is to consider restraining order against the person, because if they’re going to the work, they’re obviously not expressing, by that behavior, a great deal of fear for this person. They’re showing a great deal of antipathy for respect, right? So, in that situation, maybe the better answer would be for the person at work to seek a restraining order to protect their livelihood, their work, and then stretch it out to, you know, home. You could anticipate if a person was willing to come to your work where there are a lot of witnesses around, they would probably not be afraid to come to your house when there might not be any witnesses.

Ray Hrdlicka - Presentador - Attorneys.Media

Right, right, Right. Okay. Well, thank you very much for this discussion about restraining orders. We may get into a little bit more specific stuff later on…in actually dissecting some of the actual cases that have been in the news because there are always questions that are raised with the current news articles that come out about specific crimes. So, thank you very much. I appreciate that, Andrew, and we’ll talk to you again.

Andrew Dósa – Civil And Criminal Defense Attorney – Alameda County, CA

My pleasure. Glad to be here.