Generally, restraining orders are filed in situations where one partner claims the other is abusing them. Once this order is sought against you, you won’t be able to make contact with the most significant person in your life. It takes plenty of self-discipline and self-control not to see or contact the person you love. You may be tempted to violate the order and just spend a couple of minutes with them.
In other cases, however, you may have all the self-control and discipline not to violate a restraining order, but you still find yourself doing so. For instance, the protected person may ignore the restraining order, and make you move close to them, get angry at you again and call the cops on you. Remember that even though they are the ones who made you violate the order, they won’t get into any trouble for doing so. It’s only you that will end up in jail.
If you are accused of violating a restraining order, you have to contact a restraining order attorney as soon as possible because it might just be a wrongful accusation. At Pasadena Criminal Attorney, we have lawyers who have in-depth knowledge of California restraining order laws and will fight to ensure you have the best possible results for your case. Even if it’s not a wrongful accusation, there may be other reasons that may have led to your violations that our lawyers will try to find out and ensure you have a fair trial.
Overview of a Restraining Order Violation
According to Penal Code (PC 273.6), it’s an offense for you to violate any terms and conditions of a restraining order that the court has issued against you. A restraining order is also referred to as a protective order. It’s an order that the court issues, which is meant to protect a victim from harassment, threats, physical abuse, and stalking. If the court has issued a protective order against you, it generally implies that you won’t be permitted to have contact with the protected person whatsoever.
The precise kind of conduct the protective order is prohibiting will be outlined therein. Mostly, the order includes terms and conditions meant to forbid you from coming into contact with the victim, for example:
- Making you keep a specified distance from the person being protected at all times
- Forbidding you to interact with the victim through social media or sending emails to them
- Forbidding you to send text messages or make phone calls to the victim.
Failure to adhere to any of the terms and conditions dictated by the protective order could result in accusations of restraining order violation under PC 273.6. For instance, if the restraining order states that you have to stay a specific distance far from the victim, it means if you live with the victim, then either you or them should move out for as long as the order hasn’t expired.
And in case the terms & conditions of your protective order prohibit you from having contact with the protected person, you have to try and avoid any form of communication with them at any cost. Even if it’s the victim contacting you, you shouldn’t respond to them. This includes having contact through social media. Not only should you avoid messaging the victim on Twitter, Snapchat, Facebook, and other social media platforms, but you also have to refrain from mentioning them in your status updates or liking their posts. Remember that a protective order aims at restricting your conduct and not the victim’s behavior. Therefore, it’s only you that will be convicted if it’s found that you talked to the victim.
If the protected person wishes to withdraw the restraining court order, they have to communicate to the court requesting that it lifts the order. You should avoid speaking or communicating with the supposed victim at all costs until you’ve verified that the court has officially lifted the order.
We have different kinds of restraining orders in the state of California, which have various provisions. They include:
- Domestic violence protective orders
- Civil harassment protective orders
- Dependent adult or elder abuse restraining orders
- Workplace violence protective orders
For purposes of this article, domestic violence protective orders protect persons from threats or abuse from a person with whom they’ve got a close relationship. Usually, these kinds of orders can be sought by spouses, registered domestic or married partners, co-habitants, and former spouses. Children that are twelve years or older may file a protective order by themselves. One can also file a domestic violence protective order on a minor’s behalf.
Levels of Protection for Protective Orders
We have various protection levels that apply to domestic violence protective orders. The three protection levels offered to victims that file these kinds of orders include:
Temporary Restraining Orders (TROs) — Temporary restraining orders can be demanded by the prosecutor in the course of a criminal case, for instance, domestic battery. If the court grants it, a TRO will remain in effect up to the date the case is concluded. The function of a temporary restraining order is to give the victim temporary protection up to the time the case is resolved, or the court holds a hearing to effect a permanent protective order.
Emergency Protective Orders (EPOs) — EPOs aim to give interim or short-term protection to a victim while they are still applying for the permanent protective order. They are so common in cases of domestic violence. Generally, an EPO is requested by the law enforcement officer handling the scene. An EPO lasts for one week and may be replaced by a permanent order after it has expired.
Permanent Restraining Orders (PROs) — A PRO prevents you from having any form of communication with the protected person and may last for a maximum of five years. Because PROs significantly restrict your freedom, the court has to hold a hearing where it permits the defense and the prosecution to argue their cases. After they have done so, the court weighs the proof against and for issuing the protective order and rules the case depending on the relevant facts surrounding the case.
The protection level the court will order in your situation is based on the degree of risk the supposed protected person is facing. Also, the protection level decided for a protective order issued against you is critical. It could affect who you may contact and where you may go. This is the reason you should talk to a skilled protective order attorney as soon as possible if a person is moving to file a protective order against you.
The Serving of a Protective Order
A protective court order has to be correctly served for it to be considered valid. When the judge decides to issue a protective order against you, the date & time for the hearing is set. After the hearing has been set, you have to be served with the protective order papers. The reason you should be served with these papers is so that you’re notified that someone has filed a petition against you.
Generally, protective order papers contain a statement of the requested action, the date & time the hearing will take place, and any documentation the petitioner will have filed in court to support their petition. Once you’ve been served, you generally have between ten to twenty days prior to the date of the hearing to reply to the statements of the petitioner.
If you haven’t been served appropriately, the court can’t issue a restraining order against you. A process server or police officer serves the protective order papers. They have to be served in person and not by mail.
Elements of The Crime of Violating a Protective Order
In case you have been served with a protective order, and you do not adhere to its terms and conditions, you face severe consequences under Penal Code 273.6. However, the judge has to rule that you undoubtedly violated the restraining order. For him/her to do this, the court will conduct a hearing, where the prosecution has to prove various factors beyond a reasonable doubt. It is only when the prosecutor demonstrates the elements that the court will rule you did violate your protective order and deserve to be punished. The factors to be proven include:
- A court legally issued a protective order
- You were made aware of that court order
- You had the capability of following the order
- You willfully violated the protective order
As concerns knowledge, you must have been aware that there was a restraining court order against you for a conviction to occur. This includes having the chance to read through it (even if you did not do so). And, willfully doing something means acting on purpose or willingly.
Keep in mind that if you commit another offense in violation of a protective order, you can be convicted under both Penal Code 273.6 as well as the law that governs the other offense.
Penalties for Restraining Order Violation
In most cases, violating the law on protective orders is a misdemeanor offense, which is punished by a fine of up to $1000 and a county jail sentence of a year.
However, note that this crime turns into a wobbler if it’s your second conviction for violating a restraining order and the violation involved the use of violence. A wobbler refers to an offense that a prosecuting attorney can prosecute as either a felony or a misdemeanor. If you’re facing a felony charge, your punishment upon conviction will include up to $10000 in fines and a state prison sentence of three years.
Probation Sentence and Protective Order Violation
You might be entitled to a probation sentence instead of jail if convicted of violating a restraining order. While serving the probation sentence, you need not break any law except traffic infractions. You’ll also be required to comply with strict terms & conditions, which may include:
- Making a payment to a battered women’s shelter
- Doing community service
- Holding frequent obligatory meetings with your probation officer
- Compensating victims for costs arising your violation
- Going through mandatory counseling
Failure to adhere to any of these probationary terms & conditions could lead to your probation sentence being canceled, and then you will face the same jail sentence the law allows for this crime.
Are There Any Immigration Consequences?
In most cases, a violation of a protective order won’t affect the defendant’s immigration status. There are cases where being convicted of a crime results in an alien defendant being marked as inadmissible or deported. An example is when the accused is found guilty of an aggravated felony. However, a conviction under Penal Code 273.6 isn’t generally an offense that would lead to deportation or inadmissibility.
You Can Have Your Conviction of Restraining Order Violation Expunged
Usually, you can get an expungement if you’re convicted under Penal Code 273.6. This is true as long as you completed your jail term (if imposed) or you successfully served your probation sentence (if imposed).
How a Conviction under Penal Code 273.6 Affects Gun Rights
First of all, a conviction for violation of a protective order will only affect your gun rights if you are found guilty of a felony. California law dictates that felons can’t possess or own a gun. By this, it means that you’ll be stripped of your firearm rights if you’re convicted of a felony violation of a protective order. There won’t be any negative gun consequences, though, if convicted of a misdemeanor.
Legal Defenses to a Penal Code 273.6 Crime
With the help of your criminal defense attorney, you can argue various legal defenses to challenge a charge of violating a protective order, including:
It Wasn’t a Lawful Order
You are only guilty under Penal Code PC 273.6 law if you violated an illegally issued restraining order. Therefore, it’s a defense for you to say that the order wasn’t legal. You could argue, for instance, that there wasn’t a legal basis for the court to issue the order.
You Had no Knowledge the Order Existed
Remember, as we mentioned earlier, you must have been aware that a protective order existed for you to be convicted under Penal Code 273.6. By this, it means that if you prove you didn’t know the order existed, you won’t be convicted.
You Didn’t Willfully Violate the Order
You must have willfully violated a restraining order for you to be convicted. Thus your lawyer can argue that while you may have violated the order, you didn’t do so willingly. The attorney could, for instance, argue that you committed the violation accident.
You Didn’t Have the Ability to Follow the Restraining Order
At times, the judge may have enforced the terms and conditions of a protective court order that are practically impossible for you to follow. That’s why you can’t be found guilty of violating a restraining order when you didn’t have the capability of following it.
For instance, the judge may issue a protective order whose conditions demand that you avoid a particular roadway that passes via the supposed victim’s place of residence. However, that’s the only route you can use to get to where you reside and can’t access the highway except via its use. It’s unfair and unreasonable for the order to obligate you to stop using the only access road. Therefore, the judge will possibly agree that you didn’t have the capability of complying with this condition of the protective court order.
In a situation like this, your defense lawyer can argue that the judge drops the protective order violation charge, and the conditions of the order are revised.
If you’ve been falsely accused of protective order violations, you need to contact a skilled criminal defense lawyer to help you fight the accusations aggressively. Our attorneys see wrongful allegations of protective order violations more often in cases where the client’s going through a child custody or contentious divorce matter. The victim could falsely claim the defendant violated the court order only to have the upper hand in the custody case or revenge on the defendant.
Related Offense to PC 273.6
We have six offenses that are related to violating a protective order. They include:
Domestic violence statutes make it an offense for you to hurt or threaten to injure your intimate partner. Common charges under these laws include PC 273.5 inflicting corporal injury on an intimate partner and PC 243e1 domestic battery.
Stalking (Penal Code 646.9)
PC 646.9 is the California law that makes it an offense for you to follow, threaten, and harass someone else to the extent that that person fears for their safety.
Elder Abuse (Penal Code 368)
PC 368 is the law that describes the elder abuse crime. Elder abuse is an offense if the abuse is directed at anybody who is sixty-five years or older. Abuse could include physical or emotional abuse, financial exploitation, and endangerment & neglect.
Criminal Threats (Penal Code 422)
The offense of criminal threats is defined under PC 422 as when someone threatens to inflict physical harm or kill another and:
- The person that’s threatened is driven into a state of fear
- The threat is explicit and specific
- The defendant issued the threat in writing, verbally, or through an electronically transmitted device.
Contempt of Court (Penal Code 166)
PC 166 is the law that makes it a criminal offense for someone to participate in any conduct that’s disrespectful to the court process. Instances of disrespectful behavior include declining to be sworn in as a witness in the course of a criminal trial, or being belligerent or loud in court.
Vandalism (Penal Code 594)
PC 594 defines the crime of vandalism. Vandalism occurs when someone maliciously defaces another person’s property using graffiti or other written material or destroys or damages that property.
Who Lifts a Protective Order?
It’s only the court that can withdraw a protective order against you. However, you could request the court to lift the order. For the judge to agree to your request, your attorney has to prove that you’re not a danger to the protected person anymore.
Also, the victim could bring a motion to the court seeking the protective order to be lifted if they believe the order isn’t necessary anymore.
Domestic violence protective orders can last for up to five years. When the order is about to expire, the victim can request the judge to have it renewed permanently or for an additional five years. The judge then decides whether or not to renew the order depending on whether there have been any additional cases of violence or otherwise threats to use violence.
Employers Can See If There Is a Protective Order Against You
A protective order is a public record. This means that anybody can access the information of the restraining order that has been issued against you if they know where to find it. However, the background checks employers conduct on possible employees vary based on their degree of thoroughness as well as the kind of info the employer is trying to access.
Fortunately, restraining orders aren’t considered criminal convictions and therefore won’t show on background checks that are only aimed at disclosing your criminal record. Additionally, civilly issued protective orders are not likely to show in the course of background checks since most employers don’t try to access your civil or family records. Nevertheless, there isn’t any law that forbids employers to access restraining order info if they wish to do so.
Contact a Restraining Order Attorney Near Me
Always remember that a protective order only goes one way, against you. Therefore, you have to follow its terms and conditions to the latter. Even if it’s the victim trying to make you violate it, don’t ever fall into their trap since it’s you that will get into trouble and not them. The punishment for a restraining order violation is not any lenient, as we have seen. You need the help of a skilled restraining order attorney to stand a chance of evading harsh penalties. If you’re already facing charges of a protective order violation in Pasadena, attorneys from Pasadena Criminal Attorney are ready to help you with your case. For many years, we have helped a lot of people like you obtain the best possible outcome in their restraining order problems thanks to our ability to build an expert defense. Call us at 626-689-2277 for a cost-free consultation and case evaluation.