Violating a Florida Restraining Order
If you’re arrested for violating a Florida restraining order, it’s important to recognize the seriousness of this type of accusation. Obtaining prompt legal counsel from an experienced Fort Lauderdale criminal defense attorney is the best way to protect your rights. That, and avoid answering anyone’s questions about what happened - even if you know you did nothing wrong - without talking to your defense lawyer first.
The terms of a restraining order or no contact order vary from case-to-case, so the number of ways one might possibly violate an order are endless. That said, the most common restraining order violations we see crop up are for things like getting within a certain physical distance of the accused, calling or messaging the accused, or possessing a firearm when you were supposed to turn them all over to authorities while the order remains active.
As our Fort Lauderdale domestic violence defense attorneys can explain, restraining orders are issued by the courts - first on a temporary basis with little more evidence than the word of the accuser, and then on a permanent basis after a hearing where both sides present testimony and evidence.
Some defendants make the mistake of assuming they don’t need to devote much energy to restraining order pushback, especially if they want nothing more to do with the accuser. The problem is that the impact of a restraining order on the person accused goes far beyond simply cutting off communication with your ex or estranged relative.
A permanent injunction can strip you of your right to bear firearms. It will show up on your permanent record, anytime a prospective employer or landlord runs a background check. It can impact child custody, the amount of parenting time you’re given, and might require supervision during parenting time. On top of all that, depending on the terms of the order, it may not take much to violate it - or be falsely accused. If that happens, you’re facing arrest, jail time, and more penalties. Courts tend to take domestic violence restraining orders very seriously. There’s even the possibility of a felony stalking charge.Four Main Types of Injunctions in Florida
As previously explained, orders of protection can be either temporary or permanent. But beyond that, there are four different kinds of injunctions in Florida. Those are as follows:
- Domestic violence injunctions. Per F.S. 741.29, these injunctions can be issued for a single act of violence against a current/former spouse, relative by blood/marriage, a person with whom you lived with as a family (currently or in the past), or a person with whom you share a child.
- Repeat violence injunctions. According to F.S. 784.046, repeat injunctions can be issued when two or more incidents of violence or stalking have occurred within the last six months OR against the petitioner or someone in the petitioner’s immediate family.
- Dating violence injunctions. As outlined in F.S. 784.046, dating violence injunctions can be issued when the parties involved are dating or have dated sometime in the last six months. “Dating” is understood here to mean a relationship characterized by an expectation of sexual involvement or physical affection or continuous/frequent interaction. It won’t apply for acts of violence between casual acquaintances.
- Sexual violence injunctions. These injunctions can be handed down per F.S. 748.046 when there has been a single act of sexual battery by one person against another. It needs to have been reported to law enforcement and the alleged victim/petitioner needs to be cooperating with prosecutors in the criminal proceedings. It also applies in cases where the respondent was sentenced to prison for a sex crime against the petitioner and was released or about to be released.
Violation of the terms outlined in any of these protective orders can result in serious, costly penalties. The best way to protect yourself and your rights is to immediately hire a defense lawyer who can carefully review the facts and help you formulate an effective legal strategy.Florida Law on Restraining Order Violations
F.S. 741.31 defines what it means to violate an injunction for protection against domestic violence and outlines potential penalties.
To be actionable, violations of restraining orders must be “willful,” which the Florida Supreme Court has explained to mean “intentional.” That doesn’t necessarily mean you intended to hurt or scare anyone. But a willful violation is one that occurs when you knew or should have known that such action was in breach of the court’s order.
As we saw in the 2016 case of Hall v. State considered by Florida’s 2nd District Court of Appeal, the state bears the burden of proof in showing violation of an injunction was willful. In the Hall case, the appellate court reversed a conviction for violating an injunction because prosecutors failed to show the defendant knew the conviction was still in effect. Therefore, the violation wasn’t willful.
On the other hand, violations can include less-than-obvious actions. For instance, in the case of Hall v. Ryan weighed by Florida’s 3rd District Court of Appeal in 2012, a woman with a permanent injunction against her ex-husband reported he violated the restraining order by “friend requesting” her 16-year-old daughter on social media. In affirming his conviction on the violation, the appellate court looked at the original language of the injunction. It clearly stated he was to have no contact - direct or indirect - with his ex-wife. The court affirmed the lower court’s finding that the ex-husband’s attempt to friend request the petitioner’s underage daughter was a form of indirect contact in violation of the order.
Wilful violations for a Florida domestic violence injunction (or a foreign protection order from another state, First Nations tribe, territory, etc.) are usually first-degree misdemeanors, punishable by up to one year in jail.
Examples of DV injunction violations that are charged as first-degree misdemeanors in Florida:
- Returning or refusing to leave a home/residence shared or once shared with the accuser/petitioner.
- Getting within 500 feet of the accuser’s home, school, workplace, or other location frequented by the accuser or any named family or household member.
- Intentionally coming within 100 feet of the petitioner’s car - even if they aren’t in it.
- Committing an act of domestic violence against the accused/petitioner.
- Failing to attend court-ordered counseling.
- Making an unlawful threat to do violence to the accuser.
- Defacing or destroying personal property belonging to the accuser.
- Calling, contacting, or otherwise communicating with the accuser directly or indirectly. The only exception to this would be if the injunction specifically allows for indirect contact through a 3rd party (something we usually only see when the two parties are co-parents of minor children).
- Refusing to surrender your guns and ammo, despite a court order requiring you to do so. Exceptions exist for state or local officers who hold active certification and have a gun or ammunition to perform official duties on their employer’s behalf.
If you have two or more previous convictions for violating domestic violence injunctions and you’re accused of it again, now you’re facing a third-degree felony. Such charges in Florida carry a maximum penalty of five years in prison.
Even if there was no underlying criminal domestic violence case against the accused, violation of an injunction will compel the courts to order the accused to complete a 26-week batterer’s intervention course - at their own expense.
If someone else is injured or suffers some type of loss as a result of a domestic violence injunction, the accused can be ordered to financially compensate them for that. Damage costs in that situation can include medical bills, lost wages, court costs, and attorney’s fees.
Note that if an injunction violation involved the commission of another crime, one would be facing penalties for that as well - on top of whatever consequences the court metes out for violating the restraining order.
Being accused of restraining order violations can be stressful, frustrating, confusing, and depressing. Let our legal team help guide you through the process and protect your rights.
If you have been arrested for violation of a restraining order in South Florida, call The Ansara Law Firm today for your free initial consultation at (954) 761-4011.