A restraining order aims to protect victims of harassment against facing further harm. The victim can always contact law enforcement to have the abuser arrested upon violation of a restraining order. The two main types of restraining orders are the permanent and temporary restraining order. According to California PC 273.6, it is a criminal offense to violate the conditions of a restraining order. The violation of a restraining order is typically a misdemeanor, which may attract a jail time of up to one year in county jail. If you have violated the terms of a restraining order, the Los Angeles Criminal Attorney can assist you in fighting the charges.
Permanent Restraining Order
Usually, a permanent restraining order may last for one to several years or even for the rest of the perpetrator’s life. How long a restraining order lasts will vary depending on the circumstances of the case. To have a restraining order granted, the petitioner or the victim should have conclusive evidence of threats, physical harm, or harassment.
The evidence may be in the form of emails, text messages, photographs, or other forms of documented evidence. Upon the issuance of a permanent restraining order, it would be illegal for the abuser to contact the petitioner. The abuser would have to stay several feet away from the petitioner. If the perpetrator stays in the same residence with the victim, he/she would have to move out of the home after the issuance of a permanent restraining order.
Issuance of a permanent restraining order against you may affect your life in many ways. For instance, you may no longer have the right to visit the places you enjoy. You may no longer be able to visit your family, especially your children. A restraining order may also come with some conditions depending on how you interact with other people. For instance, the court may recommend supervised visitations with your children.
This recommendation would cost you money because every time you intend to visit your children, you would have to hire an official to supervise the visitation according to the court's requirements. If you cannot afford a paid visitation, the court may prohibit you altogether from ever interacting for your children. For this and other reasons, it is crucial to contact an attorney immediately after receiving a notice for a protective order.
Permanent Restraining Order Hearing
When a victim applies for a restraining order against an abuser, the court may first issue a temporary restraining order. Later, a permanent restraining order hearing will be necessary either to lengthen a temporary restraining order or to make a restraining order permanent. During this hearing, the perpetrator, who is the abuser, will have a chance to argue against or to oppose the restraining order. It is advisable to contact a criminal attorney before the final restraining order hearing. Your attorney will help you through the hearing and do everything in his/her power to argue against the restraining order. You should contact an attorney immediately; you receive a notice that someone has filed a restraining order against you.
The Role of a Permanent Restraining Order
The alternative name for a restraining order is a protective order. It is a court order, which aims at protecting a victim against any form of stalking, harassment, physical abuse, and threats. According to California PC 273.6, an intentional violation of a restraining order is a misdemeanor punishable by a fine not exceeding $1,000. The jail period for the offense does not exceed one year. Depending on the circumstances of the violation, the court may recommend both the fine and jail time.
Restraining orders may include both personal conduct orders, move away orders, or stay-away orders. A restraining order will outline a list of things that the restrained person should refrain from doing. The violation of the conditions of a restraining order will form a basis for arresting the restrained person.
A personal conduct order will prohibit the restrained person from engaging in specific actions. The actions may include stalking, attacking, and communicating with the restrained person. The order will prevent all forms of contacting the protected person either in person or using the phone or social media.
If a stay-away order is a condition of the restraining order, the restrained person will have to keep a certain distance from the protected person. For instance, the court may advise the restrained person to maintain a distance of at least 100 yards from the protected person. A move away order would require the restrained person to move away from the protected person in case he/she bumps into the restrained person by mistake.
Types of Restraining Orders
There are four main types of restraining orders. The court may issue any of the restraining orders permanently, usually ranging from one to five years. The type of restraining order that the court issues will depend on the type of crime you commit. The four main types of restraining orders include:
Civil Harassment Permanent Restraining Order
This is the most common form of a restraining order. The court might issue this harassment under certain circumstances. If you engage in any type of violence against a victim, the court may issue this order. The order may also apply in case of a valid threat of violence. If you exhibit a pattern of behavior, which annoys, harasses, or scares a person, the court may impose this form of a restraining order.
Domestic Violence Permanent Restraining Order
For a domestic violence permanent restraining order to apply, there should be a qualifying domestic relationship between the victim and the perpetrator. Valid evidence of physical or emotional abuse or threat of abuse should exist. A qualifying relationship refers to a personal relationship between two people, which is recognized by the domestic violence statute in California.
You may have a qualifying domestic relationship with the victim if you are registered domestic partners, married, divorced, dating, separated, living together, or closely related. A person who is closely related to you includes your parent, grandparent, grandchild, child, sister, or brother.
Elder Abuse Permanent Restraining Order
An elder abuse permanent restraining order is different from other forms of restraining orders because it aims at preventing elder abuse. It seeks to shield elderly people from harassment or any type of abuse. For an elder abuse restraining order to take effect, physical abuse doesn't need to have occurred.
Other factors that can trigger a restraining order to protect an elder include financial abuse. Financial abuse is the misappropriation of an older person's finances, mainly by a close relative or a caregiver. Ways of committing financial abuse against an elder include stealing from the elder and faking the elder's signature on bank documents, among other things. Elder abuse may also comprise of abandoning or neglecting the elder.
Workplace Violence Permanent Restraining Order
California employers may request for workplace violence restraining orders on behalf of their employees who may be suffering in the workplace because of serious harassment, stalking, a credible threat of violence, or physical abuse. A restraining order may apply if the employee has been experiencing a pattern of occurrences or conduct, which would make a normal person fear for his safety or wellbeing.
If an employee does not qualify for a workplace restraining order, the employee may apply for a regular civil harassment restraining order.
A Conviction for Violation of a Permanent Restraining Order
For the prosecutor to bring charges against you for violating a restraining order, the prosecutor will have to prove various elements of the crime. First, it should be apparent that a court has lawfully issued a restraining order against you. The prosecutor also has to prove that you were aware of the existence of the restraining order. It must be evidence that you could abide by the terms of the restraining order. It must also be evident that you intentionally or willfully violated the restraining order.
For you to be guilty, you should have known about the existence of the restraining order. This fact means that you ought to have had a chance to read the order, even if you did not read it. You should have violated the order intentionally. This provision means that at the time of breaking the restraining order, you acted on purpose or willfully.
At times, you may be guilty of two crimes at the same time. For instance, you may commit another crime while violating the permanent restraining order. The prosecutor would charge you with a violation under PC 273.6 and any other law governing the additional crime you commit. You might not be guilty if you did not act intentionally.
For instance, you may visit a restraint only to find the victim therein. In this case, you are not guilty of violating a restraining order because you were not aware that you would find the victim in the restaurant. However, you should leave immediately after noticing the victim, and you should not attempt to talk to him/her. If you intentionally visit the victim’s residence or place of work yet a restraining order is in place, you would be guilty of violating a permanent restraining order.
Consequences of Violating a Permanent Restraining Order
As mentioned earlier, the offense of violating a permanent restraining order is a misdemeanor. However, in some instances, the offense might be a wobbler, and this gives the prosecutor the liberty to assign either a misdemeanor or felony charge. If you had a prior conviction for violating a restraining order, the offense is a wobbler. If you committed an act of violence while violating a restraining order, the offense is a wobbler.
If the prosecutor assigns felony charges to the crime of violating a permanent restraining order, you will face more severe penalties. The penalties will include hefty fines not exceeding $10,000. Additional consequences may consist of imprisonment in state prison for three years.
You could be wondering whether violating a permanent restraining order may have adverse immigration consequences. In most cases, violation of a permanent restraining order will not affect your immigration status. Crimes that often lead to deportation or render a person inadmissible into the United States include aggravated felonies. If you just violate a restraining order without committing an aggravated felony, the crime will not lead to deportation.
Violation of a Restraining Order and Gun Rights
A felony conviction for breach of a permanent restraining order may affect your gun rights in California. As the law outlines, you will not be able to own or possess a gun. Therefore, you will no longer have gun rights even if you had such rights before. If you do not commit a felony violation of a restraining order, negative firearm consequences will not apply.
Attending Anger Management Classes
Upon violating the conditions of a restraining order, the judge may recommend that you attend a class or seek treatment. For instance, the judge may recommend that you attend an anger management treatment. In a case where violence is involved, you may also have to enroll in batterer's intervention courses. Typically, the batterer's intervention courses last for 52 weeks. If children are part of the situation that necessitated a restraining order against you, the court may recommend that you attend parenting classes. The judge may require you to attend classes for as long as the judge feels that the classes will be ideal for you.
Expungement of Conviction
The expungement of a violation of restraining order violation is the removal of the crime from your criminal record. This expungement would mean that the violation would no longer come up on your record even upon conducting a background check. Your criminal law can help you to apply for the expungement of the criminal record. However, you would have to fulfill certain conditions. First, if the court had imposed probation, it would be mandatory for you to have completed the probation. In the case where the court had imposed a jail term, you must have completed serving the jail term.
Legal Defenses to Violation of a Restraining Order
After the prosecutor accuses you of violating a permanent restraining order, your attorney can help you to put up a defense against the allegations of the prosecutor. Some of the defense strategies that your attorney can apply are:
The order was not lawful
You can only be guilty of a violation of a permanent restraining order if the order had been issued lawfully. There must have been a valid basis for the judge to issue a restraining order against you. For instance, it should have been evident that you were harassing, threatening, or risking the wellbeing of the victim. It should also be apparent that the court gave you a chance to argue against the permanent restraining order during the restraining order hearing. If a legal basis for issuing the permanent restraining order did not exist, there would be no basis for your conviction.
You had no Knowledge
You may also point out that you did not know of the existence of the restraining order against you. One requirement of a restraining order is that the defendant must be aware of the existence of the restraining order. In other words, the victim's attorney or the court must have served you with the restraining order. You should have had the chance to read the order and understand its terms. However, even if you fail to read the restraining order, you will still be guilty as long as you had the chance to read the order, and you failed to read it.
You did Not Act Intentionally
To be guilty of violating a permanent restraining order, it should be evident that you acted willfully. You cannot be liable if it is evident that you did not act willfully. Therefore, your attorney can defend you by stating that even if you violated the conditions of the restraining order, you did not do it on purpose. You may have committed the violation in an accident.
Certain offenses in California are related to the crime of violating a restraining order. The prosecutor may charge you with the related crimes alongside the offense of violation of a restraining order. Some of the related crimes include:
Stalking is an offense outlined under the California PC 646.9. According to this law, stalking involves following, harassing, or threatening another. Your actions should be in such a manner that they make the victim fear for his/her safety or wellbeing.
California PC 422 describes the crime of criminal threats. You may be guilty of this crime if you threaten to harm or kill another person physically. Your threat would make the person or the target experience intense fear. Your threat must be explicit and specific for you to face charges. It should also be evident that you communicated the threat either verbally or in writing. You may also have delivered the threat electronically via a device.
Other crimes related to the offense of violation of a restraining order include domestic violence, elder abuse, contempt of court, and vandalism.
Find a Los Angeles Criminal Lawyer Near Me
To avoid the negative implications of a permanent restraining order, you should contact an attorney immediately after getting a notice of a restraining order against you. An attorney can also help you get a restraining order if you are a victim of domestic violence. At Los Angeles Criminal Attorney, we have competent attorneys with experience in handling cases revolving around restraining orders. Contact us at 310-502-1314 today!