The offense of violating a restraining or protective order, as defined in California Penal Code Section 273.6, is a matter of utmost seriousness. This domestic violence-related crime occurs when you knowingly and intentionally breach a court-issued order, a serious act with significant legal implications.
The court order could be a protective order or a civil restraining order, commonly known as a “TRO.” Violating a restraining or protective order is a misdemeanor crime. However, the severity of the consequences can escalate depending on the circumstances. These orders are issued to protect individuals from physical harm or offensive conduct, such as abuse, harassment, threats, or stalking. It's crucial to be fully aware of the potential legal implications of your actions.
The person who has been “restrained” is prohibited from any type of contact with the “protected” person, including phone, text message, email, social media (Facebook, Twitter), and personal contact. Under Penal Code 273.6, there are many common situations of violations of restraining or protective orders.
For example, a protective order specifically states you are not to make any type of contact with a girlfriend, but you continue to call or send her text messages. Another common example includes a situation where a restraining order prohibits you from using force, violence, or threats against your girlfriend. Still, you push her around while screaming at her to terminate the restraining order.
In some cases, stalking can be the main issue listed on a protective order, which involves behavior where someone will follow a victim, hang around their house or place of employment, send them unwanted gifts, or other types of behavior that would be considered intrusive. Typically, the person who has accused you of a violation will file a police report, where a detective will be assigned to the case. Don't make any statements if you are contacted, as you might incriminate yourself.
Types of Restraining Orders
In Los Angeles County, the court can issue different types of restraining or protective orders, providing a range of protections and legal implications. A violation will subject you to penalties under Penal Code 273.6. A domestic violence restraining order is designed to protect you against abuse from your intimate partner. Let's review the different types of California restraining orders below:
- A civil harassment restraining order is designed to protect you from someone else who is not your intimate partner, such as a co-worker or neighbor.
- An elder or dependent adult abuse restraining order is designed to protect elders who are 65 or older, and defendant adults between 18 and 64 years old who have disabilities, and prohibits any type of physical, emotional, or financial abuse.
- A workplace violence restraining order is designed to protect employees against threatened or actual violence at work.
A violation of these orders could result in contempt of court under California Penal Code Section 166. Depending on the severity of the violation, this could lead to fines, community service, or even jail time. Additionally, a violation of a restraining order can have long-term consequences, such as affecting child custody arrangements or future criminal charges.
It's not uncommon for the protected person to want to change a protective order or have it terminated completely. Let's take a closer look at how protective orders are issued and what type of protection they provide. If you wish to change or terminate a protective order, you can file a request with the court. The court will then schedule a hearing to review your request and make a decision based on the circumstances of your case.
Emergency Protective Orders (EPO)
Police officers who responded to the scene after a call of domestic violence can call a judge and request an immediate EPO, which would prohibit the alleged abuser from having any type of contact with the victim.
If the abuser is still at the scene, the police will tell them the EPO takes effect immediately. The EPO last for 7 days. Afterwards, the alleged victim would need to go to court and request a temporary restraining order, commonly known as a “TRO.”
Temporary Restraining Orders (TRO)
Obtaining a Temporary Restraining Order (TRO) after your EPO expires or if you are the victim of harassment, you can request a temporary restraining order (TRO) from a Los Angeles County court. A TRO can protect for up to three weeks. The process involves completing an application that details the harassment or threats you are experiencing.
This application should be as detailed and specific as possible to ensure the court understands the severity of the situation. Once the application is submitted, a judge will review it and may issue the TRO if they find the evidence compelling. You would have to apply for a TRO by completing an application that would include information that you are a victim of:
- Harassment or credible threats of violence;
- Annoying behavior that serves no legitimate purpose;
- Behavior by someone that causes you to suffer substantial emotional distress.
It should be noted that harassment is described as unlawful violence or any type of threat that could be considered reasonably credible.
Typically, before your TRO expires, the court will schedule a hearing to determine whether a permanent restraining order should be issued.
Permanent Restraining Orders (PRO)
In order for a Los Angeles County court to issue a permanent restraining order, the defendant will need to appear in court. At this hearing, the judge will consider arguments from both parties before they make their decision. The judge's role is to impartially evaluate the evidence and determine whether the defendant's conduct is causing emotional or physical harm to the victim.
Clearly, the judge is looking for evidence that the defendant's conduct is causing emotional or physical harm to the victim. If the judge decides to issue the permanent restraining order, they will then need to decide what specific type of restrictions to place on the defendant and how long to keep the EPO in place. A permanent restraining order can last up to 3 years and could even be extended beyond that if necessary. The most common restrictions include:
- No type of contact with the victim (phone, email, etc.);
- Move out of your home;
- Must keep a certain distance from the victim;
- Turn in any firearms in your possession or prohibited from purchasing;
- Pay the victim's attorney fees or victim restitution.
If you are the victim seeking a protective order, you should consult with our Los Angeles criminal defense attorneys at Eisner Gorin LLP. The required paperwork can be complex and confusing, and you should ensure you are seeking the proper type of protection.
If you are the defendant who wants to challenge a protective order, our lawyers have extensive experience and know how to argue against the accusations.
What Factors Must Be Proven?
Suppose you are the individual who is listed in a restraining or protective order, and you fail to follow the restrictions. In that case, the prosecutor can charge you with violating a protective order under California Penal Code 273.6. In order for the prosecutor to prove committed a violation (contempt of court) was committed, they need to prove certain elements of the crime. These include:
- A judge issued a legal protective order against you;
- You knew the protective order.
- You willfully and intentionally violated the order.
Elements of the Crime
The elements of the crime listed above are critical and require further explanation. To convict you, each one must be proven beyond a reasonable doubt, such as the following:
- Legal Protective Order. It's important to note that not all protective or restraining orders are valid. For example, the order could have been illegally issued because the court that issued the order did not have proper jurisdiction, or perhaps there was no legal basis to issue the order. In these situations, you are not legally bound to follow the terms of the order.
- Knowledge of the Order. A restraining order can be served on the defendant, or the judge could just tell the defendant in court that they are prohibited from certain behaviors. These orders could be served by police officers who will tell the defendant the terms of the order, but proof of service is not required. Before you can be convicted of violating a restraining order, it has to be proven that you knew the order. By law, the defendant must be given what is commonly known as “notice” and an opportunity to read the order.
- Willful Violation. If you knew the court issued a legal restraining order against you, you are legally obligated to follow the restrictions. If you intentionally violate the terms, you have committed a crime of violating a protective order. The most common example involves a situation in which you were prohibited from making any type of contact with the victim, but chose to call them or send a gift.
What are the Penalties?
Under California Penal Code Section 273.6, violating a restraining order is typically a misdemeanor offense, but could also become a felony offense based on the circumstances and your prior record. If you are convicted of a misdemeanor, you face the following legal penalties:
- Up to one year in county jail,
- Mandatory 30 days in jail if the victim is injured,
- A fine up to $1,000,
- Mandatory counseling for anger management,
- Domestic violence and substance abuse classes,
- A payment to a battered women's shelter,
- Victim restitution for counseling or medical expenses.
It should be noted that the court has the discretion to waive the mandatory 30-day sentence, depending on several factors, if you serve 4 days in jail. Suppose you are convicted of a second violation within 7 years, and the recent conviction involved violence or threats.
In that case, the violation is a “wobbler,” meaning the district attorney can file it as either a misdemeanor or felony.
If you are convicted of a felony case of violating a restraining order, you could face 16 months, two or three years in a California state prison, a fine up to $10,000, and probation for up to one year. If you have a prior conviction within one year and the victim suffers injury, you will face a mandatory minimum of 30 days in jail.
If you have an active restraining order against you, it's illegal to own, possess, or purchase a firearm. In fact, you are required to immediately turn over your firearms to police or sell them to a licensed gun dealer.
If you willfully keep your firearm, you could be facing misdemeanor charges. If you purchase, or even make an attempt to purchase, a firearm, it's a “wobbler” offense that carries up to 3 years in a California state prison in felony cases.
Expungement
If you were convicted under California Penal Code Section 273.6, you could be eligible for an expungement if you;
- Completed all the conditions of your sentence and probation;
- Didn't commit any new crimes or violations, and;
- Didn't serve time in a California state prison.
In order to seek an expungement, you must first complete probation, and then you will need to petition the court and give notice to the prosecutor. The court will schedule a hearing to review your petition and the need for an expungement. If granted, the court will withdraw the finding of guilt and dismiss your conviction.
Expungements are typically most beneficial for people seeking a career in the private employment sector. Contact our Los Angeles criminal defense attorneys for more information on this process.
What are Related Crimes?
- California Penal Code Section 243(e) – Domestic Battery,
- California Penal Code Section 273.5 – Corporal Injury to Spouse,
- California Penal Code Section 422 – Criminal Threats,
- California Penal Code Section 136.1 – Intimidating a Witness,
- California Penal Code Section 166 - Contempt of Court,
- California Penal Code Section 646.9 – Stalking,
- California Penal Code Section 368 – Elder Abuse,
- California Penal Code Section 594 – Vandalism.
What are the Defenses?
Our Los Angeles criminal defense lawyers have a range of legal defenses we could use on your behalf. In certain cases, we may be able to argue a First Amendment free speech issue. We need first to review the details of your alleged violation to plan a strategy. Still, the most common defenses against violating a restraining or protective order in violation under PC 273.6 include the following:
- No knowledge of protective – In some cases, our lawyers may be able to argue you were never notified of the order and simply didn't know about the protective order. Thus, if you didn't know, you can't be convicted of willfully and intentionally violating the order. The prosecutor has to show that you were properly served with the restraining or protective order and that you knew it existed. We might be able to show that you never received notice or that it was sent to the wrong address. If successful, you can be held liable for violating the order.
- No intent to violate - Our attorneys might be able to argue that you didn't intentionally violate the order. For example, perhaps you just happen to run into them at a restaurant or your child's school, but you did to intend to violate the terms of the order. In cases where the victim calls the restrained person in an attempt to reconcile or discuss their situation, we could show that you didn't initiate contact and there was no intent.
- False allegation – In certain cases, our attorneys might be able to prove that you have been falsely accused of violating the order. For example, it's not uncommon for an ex-spouse to seek revenge after a relationship has ended or in situations where one spouse is attempting to gain some type of advantage in a child custody battle.
If you have been accused of violating a restraining or protective order under California Penal Code Section 273.6, you should call our Los Angeles criminal defense law firm, Eisner Gorin LLP.
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