A restraining order against you can impact where you can go and whom you can talk to, making your life more difficult. What's more, you'll face severe consequences should you disobey the order, including potential incarceration and paying fines. That's why you need to contact a criminal lawyer immediately if you're accused of a restraining order violation.
At California Criminal Lawyer Group (Anaheim), our experienced and knowledgeable lawyers have successfully represented clients in restraining order matters. We can assist you right away if you've been charged with violating a restraining order in Anaheim, CA. Contact us for a cost-free consultation concerning your case.
The Law on Restraining Order Violation
California 273.6 PC makes it an offense to violate the terms/conditions of any court-issued restraining/protective order. If you are issued with a protective order, it means the court is ordering you to refrain from carrying out any of the activities described in that order. Violating a restraining order forms a basis for your arrest. Restraining orders could include move-out orders, stay-away orders, and personal conduct orders.
A stay-away order dictates a distance that has to be maintained between the victim and the restrained individual (usually about a hundred yards, though accommodations can be made). Stay-away orders can also include restrictions on places the restrained party can visit. For instance, it may prohibit the restrained party from going to or passing near the victim's home or workplace.
A personal conduct order usually entails prohibitions against threatening, stalking, attacking, harassing, inflicting physical injury, abusing, or communicating with the person protected. This could include personal types of communication such as making phone calls and sending text messages and communication via social media platforms such as emails, Facebook, Twitter, and Instagram. A move-out order usually requires the restrained person to leave home if they and the victim live together.
The most restrictive types of restraining orders are personal conduct orders that restrict communication and stay-away orders. These two orders prohibit the defendant from being near or contacting the supposed victim.
Less restrictive restraining orders are granted for several reasons. For instance, a less strict order than personal conduct or stay-away order is granted when the defendant shares minors with the person protected. Clearly, a stay-away or personal conduct order would interfere with the capability of the accused and victim to exchange the children or otherwise co-parent.
In a situation like this, the judge usually refers to visitation and custody orders that the family law court issued since these courts are more conversant with the specific family matters.
The victim may request the court to issue a less restrictive restraining order. This kind of protective order is commonly called a peaceful contact order. A peaceful order could permit the restrained party to continue contacting the victim over the phone/other electronic gadgets or living with them, provided the contact does not involve intimidation, stalking, threats, violence, and remains peaceful.
The kind of behavior that a restraining order will try to forbid will always be based on the specific case’s details and circumstances. It'll provide, outline, and set out the kind of conduct that is acceptable or prohibited.
Judges almost always issue a protective order in cases involving violence or whenever there's a credible threat of violence. Again, restraining/protective orders are, in most cases, associated directly with cases to do with domestic violence.
Restraining Order Types and Prohibited Conduct
The kind of restraining orders that fall under 273.6 PC are:
- Domestic violence restraining orders (DVROs).
- Civil harassment protective orders.
- Workplace violence restraining orders.
- Elder abuse restraining orders.
A court issues a DVRO to protect a person from an intimate partner. A dependent or elder abuse order is given to protect an older adult, aged six-five or older, and dependent adults between eighteen and sixty-four years against any form of financial, emotional, or physical abuse. A civil harassment protective order is effected to protect a person from someone else who isn't their intimate partner, for instance, a neighbor. A workplace violence restraining order is given to protect an employee against violence or threats at their workplace.
Levels of Restraining Order Protection
There are three protection levels available under the state's restraining order law. These are emergency protection, temporary protection, and permanent protection.
Emergency Protective Orders (EPOs)
When the police respond to a domestic violence incident and come to the scene, they may contact a judge requesting a protective order right away. This is what's called an emergency protective order. It forbids the supposed abuser from coming into any kind of contact with the supposed victim. If the abuser is present at the site, the law enforcement officers will notify them that the emergency protective order takes effect right away. The EPO is good for seven days. After seven days have elapsed, the supposed victim will need to head to court and request a TRO (temporary restraining order).
Temporary Restraining Orders (TROs)
After an EPO becomes invalid, or if a person is being harassed, they could go to court and request a TRO. The TRO can remain effective for three weeks. Before the TRO expires, the court will have scheduled a hearing to establish if it should issue a permanent restraining order. For the victim to obtain a TRO against you, they must fill an application form that state's they're a victim of the following from you:
- Annoying kind of conduct for no valid reason.
- Some form of harassment or a credible threat of violence.
- Behavior by you causing them to suffer considerable emotional distress.
Restraining order law describes 'harassment' as violence or some forms of reasonably credible threats.
Permanent Restraining Orders (PROs)
You will have to appear before the court for a PRO to be served against you, and the judge will schedule a hearing. The court judge will then listen and consider arguments from both you and the alleged victim before making their decision.
Usually, judges require some kind of proof that your conduct is causing some form of physical or emotional injury to the alleged victim. Should they decide to grant a PRO, they'll have to establish specific prohibitions for you and the period the PRO will be in effect.
PROs can remain effective for a maximum of five years and might be extended if need be. Common restrictions the judge could place against you if issued with a PRO include the requirement to:
- Surrender any guns to law enforcement and be prohibited from buying more.
- Pay attorney fees or victim restitution.
- Move out of the home.
- Stay a particular distance away from the victim.
- Not form any contact with the victim.
If you seek to contest the order, you should consult with a lawyer experienced in making solid arguments against the accusations.
What the Prosecutor Must Prove to be Convicted of Disobeying a Restraining Order
To establish that you violated an EPO, TRO, or PRO under 273.6 PC, the district attorney must demonstrate the following facts, usually termed as the elements of the crime:
- The judge legally issued a restraining order.
- You knew the court-issued order existed.
- You had the present capability of adhering to the order yet.
- You willfully violated it.
As it pertains to knowledge, you must've been aware that the court issued a protective order against you to be guilty. This includes the fact that you had the opportunity of reading the court order, even if you didn't read it. And you do something willfully when you do it purposely, willingly, or deliberately.
It's also worth remembering that if you’re caught committing another criminal offense while at the same time violating a protective order, you’ll face charges under both 263.6 PC and the other law that you violated.
Usually, the restraining order will remain effective until the court resolves the case against you and could be extended for a maximum of ten years after the case as part of your sentence.
The Punishments for 273.6 PC Violation
A 273.6 PC violation can have severe repercussions. In many cases, this violation is prosecuted as a misdemeanor crime and carriers these consequences:
- A fine that doesn't go beyond one thousand dollars.
- A period of a year in jail.
Sometimes, however, this crime can be considered a wobbler. Wobblers are criminal offenses that the district attorney could press either felony charges or misdemeanor charges. If the judge convicts you of a felony, you will be subject to a fine that does not exceed ten thousand dollars and a three-year prison sentence. Wobbler charges will apply if you have a prior restraining order violation conviction or your present violation involved a violent act.
The judge may remand you in custody right away if they find that you disobeyed the restraining order. Even after the issue is resolved, a restraining order violation is a distinct misdemeanor crime that could lead to fines and incarceration.
Note that disobeying a court-issued restraining order can also be deemed a probation violation, and the judge could impose any sentence up to the maximum for the underlying crime.
Fighting Protective Order Violation Charges
Our skilled criminal defense lawyers will always advise you to comply with the protective order terms and conditions strictly. However, if you've been accused of this crime, there are various defenses your lawyer can help you argue, including:
- No Knowledge
- False allegations
- Your violation was not deliberate
- The protective order was not legal
Again, remember the elements of the crime mentioned above where the district attorney must demonstrate that you knew the restraining order against you was in effect to be deemed guilty. Your lawyer may be capable of arguing you did not know the order was issued. Note that the victim must have someone serve you a copy of the order and other papers they filed. These papers have to be delivered personally. They can't be sent via email, and they must be served before the deadline. If you weren't served with a copy of the protective order, you’d have the upper hand in proving you did not know the order existed.
It is not uncommon for an individual to be wrongfully or falsely charged with violating a court-issued restraining order. It could be that the victim has another motive after the romantic relationship between you and them ended and accused you of the offense out of jealousy or anger.
Your Violation Was Not Deliberate
Remember, the elements of this crime require that the prosecutor prove you intentionally violated the restraining order to be considered guilty. Your lawyer may be capable of reasonably arguing that whereas you might have committed the violation offense, it was purely accidental and not intentional.
The Order Was Not Legal
You're only guilty of a 273.6 PC violation in case the order was legally issued. Your lawyer may be capable of arguing that the protective order wasn't legally issued. For example, perhaps there weren’t any legal grounds for the judge to grant the order.
A Victim Won't Be In Trouble If They Violate a Restraining Order.
Note that the victim that the restraining order considers a protected person won't have any legal problems contacting and communicating with the restrained individual the order was issued against. It's only the restrained individual who'll be placed under arrest and be subject to criminal charges for a restraining order violation.
This being said, it isn't wise for the protected party to contact you because should you respond, it's you who will be in trouble even though they made the first move. You could utilize the contact the protected person is trying to make with you as proof in future court proceedings. You could argue that the protected person doesn't fear you and that the protective order is unnecessary.
Do We Have Immigration Repercussions?
In many cases, failure to comply with a restraining order won't impact your immigration status. We have times when being convicted leads to an alien defendant facing deportation or being considered inadmissible. Criminal offenses that can result in deportation or inadmissibility are aggravated felonies or crimes involving moral turpitude. Fortunately, 273.6 PC violation is neither of these offenses. A conviction, therefore, won't lead to deportation or inadmissibility.
Will a Conviction Impact Gun Rights?
Your firearm rights will only be affected if you've been convicted of a felony protective order violation. California law dictates that convicted felons cannot possess/own a gun. Therefore, you'll lose your firearm rights if you've been found guilty of a felony protective order violation. You wouldn’t face any negative gun rights consequences if your conviction was for a misdemeanor.
Restraining Orders and Background Checks
Protective orders usually don’t reflect on criminal background checks because they're technically deemed civil issues. Although, if you violate a protective order, the violation will reflect on criminal background checks.
You Can Expunge Your Conviction Record
Usually, persons convicted of a protective order violation can have their conviction record expunged. An expungement is possible if you completed your jail sentence or successfully served your probation sentence, whichever applies.
Crimes Related to 273.6 PC Violation
As stated before, 273.6 PC violation is typically associated with some domestic violence crimes, including domestic battery, elder abuse, corporal injury upon a spouse/cohabitant, criminal threats, stalking, witness intimidation, contempt of court, and vandalism.
243e1 PC – Domestic Battery
You commit domestic battery when you inflict violence or force on your intimate partner. There doesn't have to be a physical injury for you to be guilty. This criminal offense is considered a misdemeanor. Punishment upon a conviction can include a maximum of two thousand dollars in fines and a one-year county jail sentence.
273.5 – Corporal Injury Upon a Spouse/Cohabitant
Under 273.5 PC, it's against the law to inflict a corporal injury that causes even the slightest bodily injury to your intimate partner. Violating this law is deemed a wobbler. If convicted of a misdemeanor, penalties include a one-year county jail term and a maximum fine of six thousand dollars. A felony conviction carries a maximum of four years in prison and a six thousand dollar fine for a first-time offense. You'll face harsher penalties if it's a second or subsequent conviction.
368 PC – Elder Abuse
You commit elder abuse when you financially exploit, emotionally or physically abuse, endanger, or neglect anyone aged sixty-five or above. This criminal offense is a wobbler. A misdemeanor carries victim restitution, a six thousand-dollar fine, and a one-year county jail term. On the other hand, a felony conviction subjects you to victim restitution, up to a ten thousand dollar fine, and four years in prison. Also, if it's a felony and the victim sustained significant bodily injury, you may face an additional seven years in state prison.
422 PC – Criminal Threats
422 PC describes the crime of criminal threats as threatening to harm another individual physically or kill them and the individual, therefore, becomes afraid. The threat must be specific, and you must've communicated it verbally, via an electronic device, or in writing. 422 PC violation is a wobbler. A misdemeanor conviction will subject you to a one-year jail term and one thousand dollars in fines, while a felony carries a period not exceeding four years in state prison and a fine of ten thousand dollars. If you used a deadly weapon to convey your threats, you’d face additional, consecutive twelve months of incarceration. A felony conviction also counts as a strike under the Three Strikes law.
136.1 PC – Witness Intimidation
136.1 PC criminalizes trying to prevent a victim or witness from testifying about or reporting criminal conduct or otherwise cooperating with the authorities. This crime is a wobbler. A misdemeanor carries one year in jail and a thousand dollars in fines. If convicted of a felony, intimidating a witness is punished by ten thousand dollars in fines and four years in state prison.
646.9 PC – Stalking
Under 646.9 PC, stalking refers to following, harassing, or threatening another partner to the extent that they fear for their safety. If you're caught stalking someone else, you will face wobbler charges. A misdemeanor is punished by misdemeanor probation, one year in jail, and a thousand-dollar fine. A felony conviction will subject you to felony probation, five years in prison, and a thousand-dollar fine. If you stalk someone in violation of a restraining order, the crime becomes a straight felony.
594 PC – Vandalism
Vandalism happens when you maliciously deface another person's property using graffiti or destroy/damage it. This crime is a wobbler— a misdemeanor if the value assigned to the damage is lower than four hundred dollars and a felony if the value is four hundred dollars or more. The penalties for misdemeanor vandalism include a year in jail and one thousand dollars in fines. Felony punishments may include up to three years in prison and a fine of ten thousand dollars or more.
166 PC – Contempt of Court
You are in contempt of court when you involve yourself in any conduct that's disrespectful to the court process. Some of the disrespectful behavior include being belligerent or loud in court, disobeying a court-issued order, or declining to be sworn in as a witness during a criminal trial. Contempt of court in violation of a restraining order is a misdemeanor punished by a fine of one thousand dollars and incarceration in jail for a year. You may be sentenced to community service rather than a fine.
273d PC – Child Abuse
Under 273d PC, it is against the law to inflict corporal injury or punishment on a minor. Reasonable spanking is excluded. However, any punishment that's cruel or results in injury is deemed child abuse. This crime is a wobbler, punishable by a maximum of one year in jail as a misdemeanor and three years in prison as a felony for a first-time offense.
Seek Help From an Anaheim Criminal Defense Lawyer Near Me
Contact our knowledgeable legal team at California Criminal Lawyer Group (Anaheim) if you've been arrested or charged with a domestic violence-related crime or violating a restraining order. We have represented many clients facing domestic violence charges in Anaheim, CA, and have effectively litigated their cases on their behalf. Contact us at 714-766-0965 for a consultation and to review the details surrounding your case.