FAQ Respondents/the Accused
Frequently Asked Questions about Contested Restraining Orders
by those Accused of Domestic Violence in Oregon (The Respondent to a Restraining Order)
How long do respondents have to contest a restraining order?
A restraining order (FAPA order) may be challenged by the respondent (the accused.) In many cases, the person restrained should contest (challenge) the Restraining Order and request a hearing for such purpose. If the respondent does not request a hearing within 30 days or the date stated on the paperwork served, the respondent loses his/her rights to a hearing and the Restraining Order stays in effect for a period of one year.
Can a restraining order last more than a year? The petitioner can renew the restraining order for subsequent years, if the Petitioner files a motion and the judge grants the petitioner’s motion.
If I win, can the Temporary Restraining Order be Expunged?
It is up to the discretion of the judge. I have a memorandum on this issue that can be filed. There is an extra fee for this work and it isn’t always successful, because it is up to judicial discretion.
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” to 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 cares if the restraining order is in place. If this occurs, the restrained person will be arrested and likely sit in jail for approximately 2 weeks until trial or unless bail is posted. Sometimes persons accused of domestic violence will be released on their own recognizance with an agreement that there be no contact with the alleged victim.
Are there any options other than trial?
Another option to trial is a settlement of some sort. You will likely need an attorney / lawyer in order to negotiate a settlement due to the fact that a restraining order is in place. 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.
Is there any risk of criminal charges in addition to a restraining order?
- If a respondent testifies at a restraining order hearing his/her testimony can later be used at a criminal trial.
- Assault and Harassment are commonly charged against a party if a police officer is called to the home. 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 does then accepts your plea of Guilty but does not “sentence” you. The judge then diverts the case and you enter a Batterers Specific counseling program. 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. Further, you can have no contact with the victim, without the approval of your probation officer.
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, if 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. If you fail the program a second time, the Judge can end your probation and give you a 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 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 if they take the case to trial. Sometimes, however, trial is the best option. If one fails to jump through all of the hoops of the diversion program, a conviction is most likely anyway.
Where can I go for counseling? Try the men’s resource center; it is for women too.
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 in a different direction. 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. If someone sought a restraining order against you, let that person live with their decision.