Eric J. Dirga, P.A.

A Florida Trial Attorney

Criminal Record Expungements/Sealings, Traffic Defense.

733 West Colonial Drive, Orlando 32801 - 407-841-5555

Representation for Protective Injunctions and Restraining Orders

- Orange County Only -

"Protective injunctions," as they are known in Florida, or "restraining orders" as they are commonly called are court orders restricting a person's rights, such as the rights to travel, bear arms, and speech. These type of restrictions are employed only when circumstances (and the evidence) permits and, because they restrict time honored rights, are employed sparingly (or should be).

Florida law specifies several different types of protective injunctions (known as restraining orders). These are the Protective Injunction Against Domestic Violence, the Protective Injunction Against Repeat Violence, Protective Injunction Against Dating Violence, and Protective Injunction Against Sexual Violence. Obtaining an injunction is a civil process. Violating an injunction is a criminal offense.

Domestic Violence Injunction (Restraining Order)

This is easily the most common injunction sought by petitioners. The law establishing this injunction is found in section 741.30, Florida Statutes. This statute allows any family or household member (see the Domestic Violence page for a complete definition) to seek an injunction against any other family or household member.

The petitioner must have been a victim of domestic violence or has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence. Evidence must be in writing to the court with copies to the other party or must be presented during the hearing by sworn testimony. The injunction may be filed in the circuit court where the petitioner currently or temporarily resides, where the respondent resides, or where the domestic violence occurred.

Elements:

  1. Must be between family or household members.
  2. The petitioner must claim to have been the victim of DV or is in fear of imminent DV attack.
  3. The sworn petition shall allege the existence of such domestic violence and shall include the specific facts and circumstances.
  4. Jurisdiction exists where petitioner currently resides, temporarily resides, where respondent resides, or where domestic violence occurred.

Cautions: If the petition is granted the respondent will be required to complete a 26 week Batterers' Intervention Program (and pay for it) if (a) the respondent has willfully violated the temporary injunction or (2) has ever been found guilt of a crime involving violence (batteries) or threat of violence (assaults). In addition, a person who is under the restraints of a domestic violence injunction will not be allowed to bear arms. This includes carrying, purchasing, or using any firearm.

Repeat Violence Injunction (Restraining Order)

The repeat violence protective injunction is for non-family members that have been or are threatened with repeat violence. The law that establishes this injunction is found section 784.046, Florida Statutes. This statute allows any person who is the victim of repeat violence to seek an injunction against the person causing the violence.

Repeat Violence means two (2) incidents of violence or stalking with one incident having occurred within the last six months*. Violence means any assault, aggravated assault, battery, aggravated battery, sexual assault or battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death. Evidence must be in writing to the court with copies to the other party or must be presented during the hearing by sworn testimony. The injunction may be filed in the circuit court where the petitioner currently or temporarily resides, where the respondent resides, or where the violence occurred.

Elements:

1. The petitioner must allege two (2) acts of violence by the respondent*.

2. One act must have been within the last six months.

Cautions: If the petition is granted the Court has the authority to order such relief as the Court deems necessary for the protection of the petitioner. This means that the Judge can order the respondent into counseling, restrict respondent's movement, or order the respondent to pay a monetary assessment. Enforcement of these injunctions are typically through the criminal courts.

Dating Violence Injunction (Restraining Order)

The law that establishes this injunction is found section 784.046, Florida Statutes. This statute allows any person who is the victim of dating violence to seek an injunction against the person causing the violence.

Dating Violence means violence between individuals who have or have had a continuing and significant relationship of a romantic or intimate nature. Violence means any assault, aggravated assault, battery, aggravated battery, sexual assault or battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death. Evidence must be in writing to the court with copies to the other party or must be presented during the hearing by sworn testimony. The injunction may be filed in the circuit court where the petitioner currently or temporarily resides, where the respondent resides, or where the violence occurred.

Elements:

1. The petitioner and respondent must be in or have been in a significant relationship.

a. A dating relationship must have existed within the last six months.

b. The relationship must have been characterized by the expectation of affection or sexual involvement.

c. The relationship must have been involved over time and on a continuous basis (casual acquaintanceship or ordinary fraternization is not included).

2. An act of violence must be alleged in the petition.

Cautions: If the petition is granted the Court has the authority to order such relief as the Court deems necessary for the protection of the petitioner. This means that the Judge can order the respondent into counseling, restrict respondent's movement, or order the respondent to pay a monetary assessment. Enforcement of these injunctions are typically through the criminal courts.

Sexual Violence Injunction (Restraining Order)

The law that establishes this injunction is found section 784.046, Florida Statutes. This statute allows any person who is the victim of sexual violence to seek an injunction against the person causing the violence.

Sexual Violence is defined as any one incident of sexual battery, lewd or lascivious act, luring or enticing a child, sexual performance by a child, or any other forcible felony wherein a sexual act is committed or attempted. Formal criminal charges must have been sought in order to ask for this relief and the outcome of those charges are immaterial (meaning that this injunction can be requested even if charges were dropped or amended).

Elements:

1. Victim has had an incident of sexual violence occur, and

2. Victim has reported the incident to law enforcement, or

3. The perpetrator of the sexual violence is sentenced and term of incarceration has expired or will expire within 90 days.

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