Violating a Restraining or Protective Order - California Penal Code Section 273.6
The crime of violating a restraining or protective order is covered under California Penal Code Section 273.6. In basic terms, this domestic violence related crime occurs when you intentionally and knowingly violate a court issued order. The court order could come in the form of a protective order issued in a Los Angeles County criminal court or civil restraining order, commonly known as a “TRO”. This is a misdemeanor crime, but could carry significant legal consequences depending on the specific circumstances. Restraining and protective orders are typically issued in order to protect someone from physical harm or other types of offensive conduct. This includes physical abuse, harassment, threats, or stalking. The person who has been “restrained” will be prohibited from any type of contact with the “protected” person, including contacting them by phone, text message, email, social media (Facebook, Twitter), and personal contact. In Los Angeles County, there are many common situations of violations of restraining or protective orders under Penal Code 273.6. 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, but you push her around while screaming at her to terminate the restraining order. Yet another common example in LA County involves a situation where you were ordered by the court to stay away from your family home, but you throw a rock through her car window in the driveway. 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.
Don’t Make Statements to Police
If you are under investigation, or already charged with violating a restraining or protective order, you need to contact the Los Angeles criminal defense lawyers at Eisner Gorin LLP. 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. Early intervention into your case by our law firm is an important step to obtain the best possible outcome. Now that we have discussed a general overview of the crime of violating a restraining or protective order that is covered under California Penal Code Section 273.6, let’s take a closer look at the different types of restraining orders, legal penalties, and legal defenses below.
Types of Restraining Orders
In Los Angeles County, there are different types of restraining or protective orders that could be issued against you by the court. 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. A civil harassment restraining order is designed to protect you from someone else that 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. Let’s take a closer look at how they are issued and what type of protection they provide.
Emergency Protective Orders (EPO)
Police officers who responded to the scene after a call of domestic violence can call a judge and make a request for 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 go to court and request a temporary restraining order, commonly known as a “TRO.”
Temporary Restraining Orders (TRO)
After your EPO expires or you are the victim of harassment, you can ask a Los Angeles County court for a temporary restraining order. A TRO last up to 3 weeks. 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 threats that could be considered reasonably credible. Typically, before your TRO expires, the court will schedule a hearing in order to determine if 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. Clearly, the judge is looking for evidence that the defendant’s conduct is causing emotional or physical harm on 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 need to consult with our Los Angeles criminal defense attorneys at Eisner Gorin LLP. The required paperwork can be complex and confusing and you need to 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 argue against the accusations.
Elements of Violating a Protective Order Crime
If you are the individual who is the listed in a restraining or protective order and you fail to follow the restrictions, the prosecutor can charge you with violating a protective order under California Penal Code 273.6. In order for the Los Angeles County prosecutor to prove committed a violation (contempt of court), they need to prove certain elements of the crime. These include:
- A judge issued a legal protective order against you
- You had knowledge of the protective order
- You willfully and intentionally violated the order
The elements of the crime listed above are critical and require further explanation.
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
In Los Angeles County, a restraining order can be served on the defendant or the judge could just tell the defendant in court they are prohibited from certain behavior. 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 you had knowledge of the order. By law, the defendant must be given what is commonly known as “notice,” and an opportunity to read the order.
If you had knowledge the Los Angeles county court issued a legal restraining order against you, then you are legally obligated to follow the restrictions. If you intentionally violate the terms, you committed a crime of violating a protective order. The most common example includes a situation where you were prohibited from making any type of contact with the victim, but choose to call them or send a gift.
Legal Penalties for Violating a Restraining Order
Under California penal Code Section 273.6, a violation of a restraining or protective 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 a Los Angeles County jail, mandatory 30 days if victim injury
- A fine up to $1,000
- Mandatory counseling for anger management, domestic violence classes, substance abuse classes
- A payment to a battered women's shelter
- Victim restitution for counseling or medical expenses
It should be noted the court has the discretion to waive the mandatory 30 day sentence, depending on several factors, if you serve 4 days in jail. If are convicted for a second violation within 7 years and the recent conviction involved violence or threats, the violation is a “wobbler,” meaning the Los Angeles County prosecutor can file the case as either a misdemeanor of felony case.
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 on felony cases.
If you were convicted under California Penal Code Section 273.6, you could be eligible for an expungement if you; (1) successfully completed all the conditions of your sentence and probation; (2) didn’t commit any new crimes or violations, and; (3) didn’t serve time in a California state prison. In order to seek an expungement, you must have first completed 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 need for an expungement. If granted, the court will withdraw the finding of guilt and dismiss your conviction. Typically, an expungement is most beneficial for people who are seeking a career in the private employment sector. Contact our Los Angeles criminal defense attorneys for more information on this process.
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 646.9 – Stalking
California Penal Code Section 368 – Elder Abuse
California Penal Code Section 594 – Vandalism
Our Los Angeles criminal defense lawyers have a range of legal defenses we could use on your behalf. We need to first review the details of your alleged violation to plan a strategy, but the most common defenses against violating a restraining or protective order in violation of California Penal Code Section 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 be able to show you were properly served with the restraining or protective order and you had knowledge it existed. We might be able to show you never received notice or 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 you didn’t intentionally violate the order. For example, perhaps you just happen to run into them at a restaurant or at your child’s school, but you had to intent 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 you didn’t initiate contact and there was no intent.
False allegation – In certain cases, our attorneys might be able to prove 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.
Contact our Los Angeles Criminal Attorneys
If you have been accused of violating a restraining or protective under California Penal Code Section 273.6, you should call the Los Angeles criminal defense attorneys at Eisner Gorin LLP. Let us thoroughly examine the specific details on order to plan a defense strategy to obtain the best possible outcome. Contact our law firm at 877-781-1570.