Violating a domestic violence temporary restraining order is one of the harshest crimes you can face due to its violent nature and the fact that it involves a person with whom you are related, either by marriage, adoption, or blood. If served with a TRO, you should refrain from contacting, threatening, hurting, harassing, or communicating with the protected person(s). Even answering a call from the petitioner can violate the temporary restraining order. A violation can be a more serious legal matter than you realize; even a misdemeanor carries severe penalties. If the police have arrested you, do not try to explain your actions to them. Instead, contact an experienced domestic violence defense lawyer like Chula Vista Criminal Attorney. After calling us, our aggressive and friendly legal team can listen to you to understand your case facts, collect and review evidence, and develop the most effective legal defense to fight your criminal charges and protect your rights.
What Happens If You Violate Your Temporary Restraining Order?
Penal Code Section 273.6 PC is the California law that bans violating a restraining order.
The prosecutor should prove these elements of the crime before convicting you:
- A court granted you a restraining order lawfully.
- You were aware of the existing order.
- You could obey the order.
- You intentionally violated the restraining order.
In this context, knowledge means you know of an existing protective order for guilt. It includes having a chance to read and understand the protective order. It does not matter whether you failed to do it.
The legal term “willfully” means violating the law deliberately.
Defining a Domestic Violence Temporary Restraining Order
Also known as protective orders, courts have the legal authority to issue restraining orders when an individual alleges imminent danger of immediate harm.
A domestic violence (DV) temporary restraining order protects parties who have suffered abuse from a person they were intimate with or have blood ties with. The person seeking the order against you can be:
- Someone you are dating or previously dated.
- Your current or former spouse or registered domestic partner.
- A person you cohabit or cohabitate with.
- Your parent, child, sibling, grandparent, or grandchild related through blood, adoption, or marriage.
Many petitioners seek DV protective orders following bodily harm, harassment, threats, sexual assault, and stalking. A judge can also issue the orders if there is an ongoing dispute with your spouse.
A court will often issue a TRO due to the accusations brought forth by the petitioner without conducting a hearing. The purpose of a TRO is to protect the protected person(s) as they await their case in court, and it can last up to 30 days. While a TRO is limited in duration, it carries the same legal significance as other restraining orders. At its end, you will attend a court hearing where the judge will determine whether to issue a permanent restraining order. The hearing allows you to be heard in court and fight against the accusations.
Effects of a Temporary Restraining Order
Restraining orders consist of personal conduct orders. If a protective order is issued, a judge will order you to avoid engaging in any act highlighted in the order. Violating the terms can result in your arrest.
A restraining order will require you to comply with the following terms and conditions:
- Move out of your home — Sometimes, the judge can require you to leave the house you share with the protected person.
- Receive treatment or attend counseling classes — The court can require you to enroll in and complete anger management courses or abuse intervention classes that take up to 52 weeks. The order can also require you to participate in parenting classes if your minor children were involved in the situation that led to the restraining order. These programs can be mandatory.
- Firearms possession after being served a protective order — You must immediately sell, surrender, or safely keep prohibited items, like firearms, firearm parts, and ammunition. You must prove to the court that you have complied with the orders by presenting a firearms receipt.
- Stay far from protected people and places.
- Keep up with child support payments.
- Adhere to visitation and custody orders.
- Maintain spousal payments.
- Service the debt for property.
- Hand over property control, like mobile phones, homes, and cars, to the protected person.
- Refrain from stalking, attacking, or contacting the protected party through personal contact or social media platforms.
Penalties For Violation Of a California State Protective Order
California prioritizes the protection of domestic violence victims, and disobeying a restraining order or stay-away court order bears harsher penalties than other kinds of criminal contempt.
A violation of PC 273.6 is a California misdemeanor. If found guilty, it is punishable by a year in county jail and a fine not exceeding $1,000, or both penalties.
Based on factual evidence, the judge can sentence you to probation instead of serving time. However, the terms and conditions of the protective order will remain effective.
The crime can become a wobbler if:
- You are convicted of a subsequent violation of TRO and.
- The crime involves violence.
A wobbler is an offense that the prosecution charges as a felony or a misdemeanor, depending on the facts of the case.
If you are found guilty of committing a felony, you will serve three years in California state prison, and your fine will increase to $10,000.
Immigration Consequences of Violating a TRO
A PC 273.6 conviction does not have negative immigration repercussions because it is not an aggravated felony. These immigration penalties include being marked inadmissible and deportation.
Your Gun Rights After a Conviction Of Violating a TRO
A Penal Code Section 273.6 conviction can adversely impact your rights only if you are convicted of a felony.
In California, felons should not purchase or possess a gun.
You could use one of these three legal defenses to beat your PC 273.6 charges. Your defense attorney should carefully collect and analyze evidence to develop the most viable legal strategy.
- No legal order — Violating a legally issued order is a legal ground for your PC 273.6 conviction. Therefore, you can claim that the court illegally issued your restraining order. For instance, the judge had no legal grounds to grant the petition the court order.
- No knowledge — Remember, the prosecution must establish that you knew of a protective order before your PC 273.6 conviction. That means it is a legal defense to argue you did not know of the court order.
- You did not act intentionally — It is a legal defense to claim that while you broke the terms of the TRO, you did it unintentionally or accidentally.
Discussed below are offenses charged alongside or in place of PC 273.6.
Penal Code Section 422 makes it illegal to threaten somebody else with immediate harm when you plan to cause sustained and reasonable fear for their safety or that of their loved ones.
The crime is a wobbler. If convicted of a misdemeanor, you will spend a year in jail, while a felony carries four years in state prison.
Since a 422 conviction is a strike per three strikes law, you should serve more than 85% of your sentence before you qualify for release.
Domestic violence laws ban making threats of harm or harming your lover.
Typical DV criminal charges include the following:
- Domestic battery (Penal Code 24e1) involves using force against your intimate partner. It is a misdemeanor punishable by probation, fines, a year in jail, and domestic violence classes.
- Inflicting injury on your intimate partner (PC 273.5) involves willfully inflicting physical injuries on your former or current intimate partner, and the injuries lead to a traumatic condition. It is a wobbler.
PC 646.9 is the California statute that prohibits stalking, threatening, or harassing someone else to the extent they fear for their safety.
It is a wobbler. A misdemeanor carries a year in jail, while a felony is punishable by up to a five-year prison sentence.
Penal Code Section 368 PC makes inflicting unjustifiable pain and suffering on anyone 65 or older is illegal. The abuse can consist of:
- Physical harm.
- Emotional pain.
- Endangerment and neglect.
- Financial exploitation.
Contempt of Court
Penal Code Section 166 PC punishes bad behavior that dishonors the court process.
Instances of disrespectful actions include:
- Belligerent or being loud in a courtroom.
- Refusal to swear as a witness at the time of trial.
- Disobeying court order.
It is a misdemeanor carrying a fine of one thousand dollars and six months in jail.
Under Penal Code Section 594, vandalism occurs when you maliciously commit any of the following acts:
- Paint graffiti or write things on another party’s building.
- Break or destroy another’s property.
What to Do If Served With a TRO
If you are issued a restraining order, you must act fast; you have limited time to file your response papers and prepare for your court hearing. Here are some practical steps to take after learning of the protective order against you:
Read the Protective Order to Understand and Obey It
You should thoroughly read the order. Remember, you will still face criminal charges regardless of whether you read the TRO. Violating the temporary order can make it harder for you to defend it if it becomes a permanent protective order.
You will also need to read the order to:
- Know when the court proceeding is scheduled and when to file response papers.
- Learn what the accusations against you entail, including the evidence.
- Understand your legal rights.
Contact an Attorney Who Defends Protective Orders
Consulting an attorney once you receive a protective order is a great place to begin. Consider working with a family law lawyer because they are experienced in defending restraining orders.
You should review the restraining order with your lawyer and examine the accusations and the evidence. Your attorney will also help you establish a legal defense and appear in court on your behalf.
Your fight and win against a TRO violation depend on your thorough understanding of state law. Having an experienced lawyer by your side, a professional familiar with the law, regulations of evidence, and court hearings, will increase your odds of a favorable ruling.
Collect and Compile Documents Containing Your Evidence
With the guidance of your lawyer, you should diligently:
- Gather physical evidence connected to events or incidents the petition addresses, like photos, videos, clothing, and objects.
- Collect records that could prove your location when the incident happened, including emails, letters, GPS, phone records, computer records, and receipts. Since before the judge issues a permanent order, the petitioner must prove the accusations by the preponderance standard (more likely than not), you should present evidence to disapprove or discredit the petitioner’s accusations. For example, you can challenge the petitioner’s allegations of repeated texts or phone calls using your phone records. If the petitioner says you frequently drive to their house, you can refute the accusations using your GPS records or receipts.
- Create a list of potential witnesses — A witness is a person who you believe knows about the incident, the allegations, or the petitioner. When creating your witness list, remember to include their contact information.
Give your attorney different pieces of evidence so they can develop the most effective legal strategy to fight your criminal charges.
What to Avoid Doing After Receiving a Restraining Order
When dealing with orders, refraining from some actions can be crucial in fighting against a temporary order and not having criminal charges pressed against you.
- Avoid destroying any evidence that the prosecution can use against you. Doing so can paint you in a bad light with the court and result in criminal charges.
- You should not in any way dismiss a temporary order.
- Do not attempt to contact witnesses you think will testify in support of the petitioner in the trial or communicate with any of them through email or text messages.
- Avoid circumventing any term of the restraining order — Pleading ignorance on this one is an inappropriate strategy because no contact should be zero contact.
Constitutional Rights of a Defendant
The law presumes you are innocent until proven guilty and still have constitutional rights. These rights are as follows:
The Right to Remain Silent
After your arrest, the police officer should read your Miranda Warning before questioning you. The Miranda warning states, “You have the right to remain silent. Anything you say can and will be used against you in court. You have the right to an attorney. If you cannot afford a lawyer, the government will provide one.”
You should politely tell the police you are invoking your 5th Amendment right against self-incrimination. Once you do so, they should stop interrogating you. Any evidence collected after that is inadmissible in court.
Right to Cross-examine Witnesses
The 6th Amendment contains a clause granting a defendant the right to be cross-examined by the witnesses against them. The clause also allows a defendant to speak directly to witnesses. You can request the petitioner’s witnesses to appear in court and avail themselves of questioning by your defense attorney.
The 6th Amendment makes it illegal for the prosecution team to prove a defendant’s guilt through oral or other written hearsay admissions from a witness not supposed to testify unless the judge rules that it is not admissible in court.
Right to Public Trial
The 6th Amendment authorizes a public trial in any criminal case. It is a fundamental right since the court attendance of a defendant’s friends and family, citizens, and media ensures that the government adheres to vital trial rights.
Right to a Trial By Jury
The 6th Amendment guarantees the right to a jury trial if accused of an offense. A jury trial is commonly understood to refer to a twelve-person jury. Nevertheless, constitutionally, a jury could comprise six individuals.
The jury requires a unanimous decision before finding you guilty. Only arriving at unanimity (a hung jury) can lead to your acquittal if the prosecution retries you.
Right to a Speedy Trial
The 6th Amendment grants a defendant the right to a speedy trial. Nonetheless, it does not set out the specific time frames. Thus, judges determine this depending on the case and whether the defendant’s trial has been delayed enough to warrant its dismissal. Before deciding, the judge considers the delay period, what caused the delay, and whether the prolonged delay has harmed the defendant’s position.
Different jurisdictions have authorized statutes providing time limitations for moving court cases from filing the charge to trial.
Right to Attorney Representation
The 6th Amendment offers the defendant the right to legal representation. If you cannot afford a skilled attorney, the judge should appoint a public defendant free of charge before your case is heard and determined in court.
Right Not to Be Subjected to Double Jeopardy
The 5th Amendment protects you from being tried several times for the same offense.
Also, this right bans more than one criminal prosecution arising out of the same criminal conduct. For instance, you can be brought once to criminal court and once to civil court for the same crime.
Frequently Asked Questions
Any seasoned protective order defense attorney will tell you that they have repeatedly answered the following questions:
Is It Advisable to Seek Legal Assistance?
Facing the possibility of criminal charges is daunting, especially if you have never been charged with a crime before. An arrest does not imply you are guilty or an awful person. Nevertheless, you should act with haste to get legal representation to reduce the impact of your criminal charges.
Here are ways your legal professional can increase your chances of obtaining a favorable case outcome:
- Engage in plea bargain negotiations with the prosecution.
- Advise you on your rights, legal options, and the appropriate steps to take.
- Examine law enforcers’ conduct to ensure they do not violate your constitutional rights.
- Collect and analyze evidence to develop a theory of defense.
- Help you make big decisions, like whether you should testify at trial, accept the prosecutor’s plea offer, or proceed to trial.
- Represent you at trial.
How Does a Domestic Violence Protective Order Differ from a Civil Harassment Restraining Order?
DV restraining orders are issued when the restrained and protected individuals are related by blood or marriage. It can include, but is not limited to, spouses, registered domestic partners, fiancees, and parents.
On the contrary, civil harassment protective orders apply when the parties involved have no intimate relationship. Examples include orders that apply to roommates, neighbors, and co-workers. Avoiding unwanted attention from a stranger is another suitable use of a civil harassment protective order.
What If You Want to Leave The State or Country?
You must obey the terms of the protective order, including visitation orders and custody. The restraining order applies across the United States.
Can the Victim Violate a TRO?
The protective order protects the victim; the court cannot punish the petitioner for contacting you. Only you, the restrained person, can face criminal charges for breaking your TRO.
What Happens If the Accuser Refuses to Testify in Court?
In domestic violence cases, the accuser can decide not to testify or recant their accusations. However, that does not mean the prosecution will drop your criminal charges.
The prosecutor can assume the victim is dropping the charges because you emotionally manipulated, coerced, or threatened them. In this case, the prosecutor is likely to charge you anyway.
Find Skilled Legal Representation Near Me
Typically, a judge can issue temporary restraining orders after dating violence, trafficking, indecent assault, sexual assault, or stalking against a person with whom you are related by blood, marriage, or adoption. The judge issues a TRO to offer physical and emotional safety for the protected person and prevents you from assaulting, communicating with, intimidating, or harassing the petitioner. If arrested, do not take your charges lightly and hire a lawyer immediately; a PC 273.6 conviction carries time, fines, and stigma, among other devastating consequences. Chula Vista Criminal Attorney can carefully review your allegation and discuss how to establish your innocence. We can also explain practical steps to mitigate your potential penalties if convicted. Please contact us at 619-877-6894 to schedule your initial, no-obligation consultation.