Our Los Angeles criminal defense law firm secured case dismissals of multiple cases against same client in the LAX Airport Courthouse. Client was charged with two separate violations of a civil harassment restraining order, a misdemeanor under California law.
Specifically, client was alleged to have harassed his former therapist with whom he had a falling out.
In the first case, client was alleged to have written a derogatory review on the therapist's Yelp page. In the second, he was accused of having sent a direct email message to the therapist. When she received these messages, the therapist reported client to law enforcement and he was arrested.
In the first case, the defense filed a demurrer to the misdemeanor complaint arguing that the Yelp review constituted protected speech activity under the First Amendment to the United States Constitution and that therefore, as applied to his conduct, the statute prohibiting violation of the restraining order would be unconstitutional.
After reviewing the extensive legal arguments presented by the defense, including issues of viewpoint discrimination, vagueness, and overbreadth, the prosecution chose to voluntarily dismiss the case rather than defend against the demurrer.
In the second case, the First Amendment argument was not available as client was alleged to have directly contacted the protected person rather than publishing information to the public at large.
However, a thorough review of discovery materials revealed a technical deficiency in the original restraining order's proof of service. The deficiency raised a substantial doubt as to whether client had in fact been served with the restraining order prior to making the allegedly violative contact with his former therapist.
Once again, the prosecution chose to voluntarily dismiss the case rather than defend the deficiency in a possible jury trial. Ultimately, despite having been charged in two separate misdemeanor cases, client received no punishment and suffered no negative consequences to his criminal record.
How Can You Violate a Restraining Order in California?
California Penal Code 273.6 states it's a crime to violate the terms or conditions of a restraining order. However, it's important to note, there are a certain elements of the crime that has to be proven in order for someone to be convicted of violating a restraining order or order of protection.
For example, it has to be proven you were the subject to a valid and legal restraining order. Los Angeles County criminal courts have determined that an order can't be violated if it's invalid. This means a judge must have properly issued the restraining order. It will become invalid if the court didn't have proper jurisdiction to issue it, or if there were no valid legal basis.
You also must have been aware of that a restraining order was issued against you. Accordingly, you can't be subjected to penalties for violating a restraining order if you were unaware it existed and the court didn't make an effort to inform you.
California law not only mandates that you were aware of the existence of the restraining order against you, but you must also be provided an opportunity to read it.
You can receive notification of a restraining order against you in various ways. For example, the court can notify you in person if you were present, or police can give it to you personally – or you can be simply notified in person by police.
Another important element is that it must be proven you intentionally violated the restraining order. order. Intentional means it was willful and a purposeful violation of the terms of the restraining order.
Accidents don't typically result in criminal penalties for a restraining order violation. For example, your girlfriend has a restraining order against you prohibiting you from being within 500 feet of her. If you willfully drove over to her place of employment to talk, this would be a clear intentional violation of the restraining order.
However, if you accidentally cross paths with her at the gym or grocery store, this would not normally be considered a violation – but you are required to take immediate action to comply with the terms of the restraining order. This means you need to leave the location immediately.
It is possible to be arrested for an accidental violation, but you would be responsible to prove it was an accident, and took immediate action to follow the terms of the restraining order.
Penalties for Violating a Restraining Order in California
If it can be proven you intentionally violated a legal restraining order, you could be facing criminal penalties. Violation of a restraining order in California is typically a misdemeanor for a first offense. A conviction can result in up to one year in county jail, fines, and probation.
If there are further violations of a restraining order, or a violation involving threats, or firearm – or a violation that resulted in an injury to the protected person – then the penalties will become more severe. A serious restraining order violation could be filed as a felony case and lead to penalties including up to three years in a California state prison, and a $10,000 fine.
In order to avoid harsh legal penalties for violating a restraining order, it's critical that you clearly understand the terms and conditions set by the court. Judges consider a willful violation of a restraining order a serious matter and will sentence you accordingly if they believe you intentionally ignored them.
Retain an Experienced California Restraining Order Lawyer
If you were arrested for violating a restraining order, you should consult with our experienced Los Angeles restraining order violation defense lawyers to review your case.
We will protect your legal rights and discuss potential strategies for the best possible outcome. Contact our Los Angeles criminal defense law firm at 877-781-1570 to learn how we can help you.
Eisner Gorin LLP 1875 Century Park E #705 Los Angeles, CA 90067 310-328-3776