Restraining order or protective order is an order issued by the courts with the aim of prohibiting an individual, a group of people or an entity from doing something. The person applies for such an order is called the petitioner while the accused becomes the defendant. Every state has its laws regarding restraining orders and their violation.
In California, these laws are covered under Section 273.6 PC of the California Penal Code. Restraining order violation occurs when for one reason or the other, the defendant chooses to violate the terms of the order while knowing that the orders were issued against them. There are grave legal consequences for this. If you find yourself in this situation, it is essential that you contact an experienced criminal attorney to guide you through your legal options.
Criminal Protective Orders
When the alleged victim of a crime is thought to be in possible danger from the defendant in a criminal case, criminal protective orders are issued. It seeks to protect the victim from physical abuse, threats, and harassment. In most cases, the courts are guaranteed to grant this type of order when the threat of violence has been proven.
Depending on the nature of the case and the circumstances, the protective order can either be a peaceful contact or a no-contact.
In Peaceful Contact Protective Orders, the court allows the defendant to be in contact with the alleged victim provided the defendant does not threaten, molest, abuse or harass the protected individual.
Peaceful contact protective orders are more likely to be granted in cases where it can be proven that the defendant has no history of violence and has demonstrated to the court that they are willing to obey the terms of the orders. This is especially common in a family set up where the defendant and the victim live in the same house, and there are other parties to be considered such as children.
A No-Contact Restraining Order in a case where there is sufficient evidence to suggest that the petitioner is in imminent danger from the defendant. For example, if it a matter of domestic violence and the victim sustained severe injuries from the defendant, the court is obliged to protect the victim from the defendant. This means that the defendant should not try to contact the victim in any way whatsoever. No phone calls, texts, emails, face to face meetings or any form of interaction on social media.
Levels of Protection offered by Criminal Restraining Orders
In California, criminal restraining orders are further sub-divided into three levels. They are categorized depending on the duration of the protective order.
Emergency Protective Orders. An emergency protective order is usually issued to offer protection while the victim is still in the process of applying for a permanent restraining order. This type of restraining order remains active for seven days. They are usually issued in cases involving domestic violence.
Temporary Restraining Order. The prosecution usually requests a Temporary Restraining order while the hearing is underway. A TRO remains active until it is determined whether a permanent restraining order should be issued. This process typically takes 3 weeks.
Permanent Restraining Order. If the court finds that the applicant is in danger, it will grant a permanent restraining order. The terms of the restraining order vary from case to case but usually prohibits the defendant from contacting the applicant. A permanent restraining order can remain active for up to 3 years. On expiration, the order can still be extended.
Civil Protective Orders
Civil Protective orders are issued in civil courts, usually when the victim has filed no criminal charges. This legal intervention is aimed at protecting the alleged victim from any further harm by the defendant until the final hearing of the case. Just like criminal protective orders, there two types of civil protective orders a California court can issue.
Domestic Violence Restraining Orders. These types of orders are issued against parties who are currently in an intimate relationship. Recent statistics from the California Partnership to End Domestic violence estimate that 40% of women living in California have been victims of domestic violence at one point in their lives. Although not all victims of domestic violence are women, 72% are women. Another sad statistic from the same body indicates that an average of 175,000 cases is reported annually.
Civil Harassment Restraining Orders. These types of orders are issued; the two parties have no intimate relationship have never been romantically involved. An example is between colleagues at work or neighbors. A temporary CHO is valid until a court hearing is held. This usually takes place within a maximum of 22 days.
Legal Elements of a Restraining Order Violation
Like any other law of the land, the Penal Code requires all the parties to strictly abide by the terms of a restraining order whether it is civil or criminal. These guidelines are provided under section 273.6 of the Penal Code. For any judge in California to find you guilty of violating a restraining order, the prosecution must demonstrate that the following conditions were met.
A restraining order was issued against you. In simple terms, you cannot violate a nonexistent order. The burden of proof lies with the prosecution. There has to be evidence produced in court showing that indeed a restraining order was issued against the defendant.
The other factor is that the order must be legally binding. If the order was issued illegally or on an unfounded basis, then it is not legally binding. If the court had no authority to issue the restraining order, you cannot be found guilty.
The defendant must know about it. Once the court has made an order, the accused must be made aware of the rule.
The law in California requires that you are made aware as soon as possible. This can be done verbally of the phone, by a judge in court or the papers presented to you personally by a police officer.
Proof of intentional violation. The Penal Code section 273.6 PC anticipates that there may be situations that would make the defendant find themselves in violation of restraining order without intending to do so.
Provided the defendant can prove that the violation was unintentional or beyond their control; they cannot be found guilty.
Penalties and Consequences of Violating a Restraining Order
Fines and Sentencing
Violation of a restraining order under the California Penal Code section 273.6 attract fines of up to $ 1,000, a maximum of 16 months in county jail and additional probation at the discretion of the judge. Depending on the particulars of the case, the court may order anger management classes, counseling substance abuse rehabilitation. Restitution to the victim may also be ordered.
If you are convicted and this happens to be the second restraining order you are violating within seven years, under section 273.6 PC of the Penal Code, the charges can be upgraded to a felony. A felony attracts different fines. The defendant could be ordered to a maximum fine of $10,000 and a maximum sentence of 3 years in state prison.
Immediately a restraining order is issued against you, the law in California prohibits you from owning a firearm. If you possessed a licensed firearm before the restraining order was issued, the law requires you to relinquish the weapon.
You can do this by either surrendering your firearm to your local law enforcement agency for the duration of the order or selling the gun to a licensed dealer. Possession of a firearm is a violation and is punished accordingly under Section29825 of the California Penal Code.
Not all restraining order violation lead to maximum custody time. Sometimes the offender is put under probation. During the probation period, the accused must adhere to rules set by the court. These are:
Court ordered counseling and rehabilitation
Pay for any damages such as medical bills suffered by the victim.
Only make supervised visits
It is standard practice for potential employers to perform a criminal background search before offering employment. Information regarding restraining orders are a matter of public record, and anybody can access them.
Violation of a restraining order could be tried as a felony, which is a criminal offense. A criminal record can make it very difficult to secure employment.
Legal Defenses for Violating A Restraining Order
The order was unlawful. For you to be convicted, the prosecution team must prove to the court that the order was issued under the law.
A restraining order that was issued based on misleading facts becomes null and void. In situations where a court issued a restraining order that lack jurisdiction, that order is also invalidated. If this is proven during the trial, you are not bound by such an order.
Falsely accused. In case you are falsely accused of violating a restraining order, a defense attorney can clear you of all the charges.
Since a majority of cases on violation of restraining orders involve families and custody battles, it is not uncommon for the protected person to falsely accuse the other party.
Violation by accident. Lack of intent is a legal defense for violating a restraining order. For you to be convicted, the prosecution must demonstrate to the court that you intentionally broke the restraining order. If you and the protected individual live in the same town, it is possible to violate the terms of the restraining order without intending to.
An example is if you accidentally bump into the protected person in a supermarket, a hospital or at the movies.
Lack of knowledge. You cannot be penalized for violating a restraining order if you did not know that a restraining order was issued against you.
A restraining order must be served properly. It can only be served by a law enforcement officer or a process server.
It is impossible to obey the order. There situations where it is impossible for you to comply with the restraining order due to circumstances beyond your control.
An example is when the terms of the restraining order require that you stay away from the protected by a certain distance. If the protected person lives along the only access road, then it is impossible to comply. Your criminal attorney can argue on your behalf for the terms to be reviewed.
Other Related Offenses
Violation of a restraining order is usually tied to other offenses that are closely related to the Penal Code Section 273.6. It is therefore highly likely that you will also be charged with these associated offenses. For each of the crimes, you could be penalized separately, leading to a lengthy sentence. Here are a few other related offenses.
It refers to harassing or threatening a person to a point they fear for their safety. They are covered under Penal Code 646.9. Protective orders are also issued against stalkers. Stalking is a wobbler offense in California and could be punished as a felony. You should, therefore, avoid any action that may be regarded as stalking because you could be jailed for up to 4 years if found guilty.
It is similar to regular stalking; the only difference is that it is committed over the internet. This form of stalking is prohibited under the Penal Code 653.2 PC, commonly referred to us indirect cyber-harassment. Unlike stalking, you don’t have to personally harass or threaten the protected person to be charged with this offense. Inciting people to intimidate or harass the person is considered cyber-stalking.
Threatening to harm or harming an intimate partner is considered domestic violence. An emergency protective order is usually requested by an officer that responds to a domestic violence call. In most cases, the person violating a restraining is trying to commit an act of domestic violence.
Contempt of Court
Refusal to obey a legally issued court order constitutes contempt of court. The Penal Code 166PC prohibits contempt of court and is a punishable offense both as a misdemeanor and a felony. Violating a restraining order is in itself a contempt of court. Because the two are closely related, the accused is in most cases charged with both offenses.
That is why in most cases when charged with violating a restraining order, you will also be charged with vandalism. Just like restraining order violation, vandalism is a wobbler offense in California. Depending on the value of property damaged and the offender’s criminal past, you could be charged as either a misdemeanor or a felony.
In general, trespassing involves entry onto another person’s property without their permission. Trespassing offense is covered under Penal Code Section 602. Entry onto someone’s property with the intention to cause damage constitutes criminal trespassing.
If the owner of the property was protected by a restraining order then you will be charged with both restraining order violation and trespassing. Trespassing can be charged as an infraction, a misdemeanor or a felony in California. If found guilty of trespassing, you could be fined up to $ 1000 or imprisoned in a county jail for a period not exceeding six months.
Threatening to kill a person is a criminal offense, it is prohibited under the Penal Code 422 PC. The laws do not consider whether you actually intended to execute your threat or not, provided the threat causes the individual to fear for their life.
If you threaten a person protected by a restraining order you will be charged under Penal Code 273.6 and 422 PC. Criminal threats attract a maximum sentence of one year in county jail and a $ 1000 fine if charged as a misdemeanor. A felony charge is a striker offense and carries a 3-year sentence is a state prison.
In California seniors over the age of 65 are protected from physical, financial or emotional abuse under the Penal Code 368. If you are found guilty of elder abuse, a restraining order is issued against you. If you violate the elder abuse laws while a restraining order is in effect, then you are charged under Penal Code 368 and Penal Code 273.6. Elder abuse is also a wobbler offense and carries a maximum sentence of four years in a state prison is tried as a felony.
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