California prioritizes the safety of potential violence victims through restraining orders. Non-compliance can lead to criminal charges for restraining order violations, carrying severe consequences like lengthy jail terms and hefty fines. However, a charge does not imply guilt. You will need the help of a criminal attorney to build a defense strategy and fight the charges. At the Chula Vista Criminal Attorney, we will investigate your case, gather relevant evidence, and cast doubt on the prosecution's evidence. Contact us today for a strong defense. Your future may depend on it.
An Overview of a Restraining Order
In California, Penal Code 273.6 provides for the violation of a restraining order. When you are subject to a restraining order, whether it is related to domestic violence, workplace harassment, or any other circumstance, there are specific terms and conditions you must observe. These terms include directives to avoid or have no contact with the protected person, refrain from committing any crimes against them, and possibly other court-imposed requirements.
Types Of California Restraining Orders
In California, restraining orders are not a one-size-fits-all solution. They come in various forms, each tailored to specific situations and needs. They include:
Domestic Violence Restraining Order
A domestic violence restraining order is issued to protect an individual from abuse by their intimate partner. This order protects those facing domestic violence against harm, threats, or harassment from a current or cohabitant, former spouse, or someone with whom the victim shares a child.
Civil Harassment Restraining Order
This order shields individuals from non-intimate partners who pose a threat. This type of order can protect you from neighbors, acquaintances, or anyone not covered by a domestic violence restraining order. It addresses behaviors such as stalking, harassment, or credible threats.
Elder or Dependent Adult Abuse Restraining Order
California recognizes the vulnerability of elders and dependent adults. An elder or dependent adult abuse restraining order protects individuals aged 65 or older or dependent adults aged 18 to 64 with disabilities. This order safeguards against various forms of abuse, including physical, emotional, or financial mistreatment.
Workplace Violence Restraining Order
Workplaces should be safe environments, but a workplace violence restraining order can be issued when threats or violence occur on the job. This order aims to protect employees from threats or violence at work.
Domestic Violence Restraining Order (DVRO)
As mentioned above, a DVRO is available to protect victims of domestic violence from current or former spouses, partners, cohabitants, or parents of their children. The following are the types of domestic violence restraining orders in California:
Emergency Protective Order (EPO)
This is employed when immediate protection is necessary. An EPO prohibits the alleged abuser from making any form of contact with the alleged victim. This includes physical contact, phone calls, text messages, emails, or any other means of communication. Law enforcement officers typically issue it in response to domestic violence incidents.
EPOs provide swift protection to alleged victims of domestic violence. When law enforcement officers respond to a domestic violence incident, they can request an EPO from a judge, even outside regular court hours. This order takes effect immediately and lasts for seven days.
Temporary Restraining Order (TRO)
As the name suggests, a TRO is a temporary measure that offers protection until a court can hold a hearing to determine whether a more extended restraining order, often called a Permanent Restraining Order (PRO), is necessary.
TROs can be granted for various reasons, including cases of domestic violence, civil harassment, or workplace harassment. They are typically requested by individuals who believe they are in imminent danger. TROs can remain in effect for up to three weeks, providing immediate relief and protection to those who seek legal intervention in potentially dangerous situations.
To obtain a TRO, an individual must complete an application detailing the reasons for seeking protection. The court reviews this application and schedules a hearing to assess whether a more permanent restraining order is warranted.
Permanent Restraining Order (PRO)
A Permanent Restraining Order (PRO) is a legally binding document that protects individuals who have experienced harassment, threats, or violence. A PRO is typically issued after a court hearing. This hearing allows both parties involved to present evidence and make their case. The judge evaluates the evidence and decides whether a PRO is necessary.
Unlike EPOs and TROs, which are temporary, PROs offer extended protection. They can remain in effect for up to three years and extend further if necessary.
PROs are tailored to the specific situation. The terms of the order may include directives such as no-contact provisions, maintaining a particular distance from the protected person, moving out of a shared residence, or paying restitution or attorney fees. Many PROs prohibit the defendant from possessing firearms. Failure to comply with this provision can lead to legal consequences, as California and federal law restrict firearm possession for individuals with certain convictions.
Violating a PRO carries legal consequences, including potential contempt of court charges. This underscores the seriousness of adhering to the terms and restrictions outlined in the order. If the need for protection persists, PROs can be renewed to safeguard the protected party from harassment, threats, or violence.
Some Of The Ways You Can Violate A Domestic Violence Restraining Order
Understanding how a Domestic Violence Restraining Order (DVRO) can be violated is crucial for individuals protected by such orders and those subject to them. Below are various ways in which a DVRO can be violated:
- If a DVRO orders the restrained person to move out of a residence shared with the protected person and fails to do so, it constitutes a violation.
- DVROs often include provisions requiring staying a certain distance from the protected person's home, workplace, or children's schools. Any violation of these proximity restrictions is a breach of the order.
- A DVRO typically prohibits any form of contact with the protected person. This includes in-person contact, phone calls, text messages, emails, social networking, or indirect contact through third parties. Even if the protected person initiates contact, responding is considered a violation.
- Making threats or engaging in harassment against the protected person constitutes a violation. This includes any actions that cause emotional distress or fear.
- DVROs may include orders for child support or spousal support. Failure to make these court-ordered payments is a violation.
- It is considered a violation if the DVRO requires the restrained person to pay specific bills and they do not comply.
- If the DVRO mandates the return of specific property to the protected person, not doing so constitutes a violation.
- Some DVROs require the restrained person to attend anger management or substance abuse counseling. Failing to attend or complete these programs is a violation.
- DVROs often prohibit the possession of firearms by the restrained person. Owning or using a firearm while subject to a DVRO and having a prior misdemeanor domestic violence conviction or felony violates both California and federal law.
- Accidental violations can occur but are typically not considered violations if they lack willfulness. For example, if the restrained person accidentally encounters the protected person and does not act willfully, it may not be considered a violation.
What happens if I violate a restraining order in California?
Violating a restraining order in California is a wobbler offense with significant legal consequences. The penalties for violating a restraining order depend on several factors:
A restraining order violation is typically treated as a misdemeanor in California. If convicted, the potential consequences include:
- Facing a jail term not exceeding one year.
- A fine not exceeding $1,000
However, if certain conditions are met, a violation can be charged as a felony, leading to more severe penalties. These include:
- Facing a prison term not exceeding three years.
- A fine not exceeding $10,000.
Violating a restraining order usually will not impact your immigration status. However, certain criminal convictions, especially aggravated felonies, can lead to deportation or inadmissibility. A conviction under PC 273.6 is generally not considered a crime, but consulting with an immigration attorney is advisable to fully understand your situation.
What Does A Prosecutor Have To Prove?
When facing charges for violating a restraining order in California, it is essential to understand what the prosecutor must prove to secure a conviction. The prosecution must establish the following elements beyond a reasonable doubt before you can face conviction:
- Existence of a court-issued order. This order may be a restraining order, protective order, stay-away order, or similar court-issued document.
- You were aware of the existence of the court order. This awareness can be proven in various ways, including your opportunity to read the order, even if you did not.
- You willfully and intentionally violated the terms of the court order. You must have knowingly disregarded the restrictions imposed by the order.
Are there legal defenses to 273.6 PC?
Legal defenses are available to those accused of violating a restraining order. This section explains common legal defenses you could employ in a Penal Code Section 273.6 PC violation case.
No lawful order
When facing charges of violating a restraining order, one potential defense strategy involves questioning the legality of the restraining order itself. The court cannot convict you if the prosecution cannot show that a valid and lawful order existed. You could argue that the court did not have sufficient grounds to issue the order in the first place.
If the order was issued in violation of your due process rights or without allowing you to contest it, it could be challenged on these grounds. Also, if it can be demonstrated that the allegations leading to the order were false or fabricated, it could cast doubt on the order's legality.
Another aspect to consider when challenging the legality of a restraining order is whether the court that issued the order had the proper jurisdiction to do so. Jurisdiction refers to the legal authority of a court to hear and decide a case. If it can be shown that the court lacked jurisdiction over the matter, the order may not hold up under scrutiny.
The prosecution must prove that you were aware of the court-issued order and intentionally violated its terms for the court to convict you. If you can establish that you did not know about the restraining order, it creates a reasonable doubt about your intent to violate it.
Sometimes, individuals are not properly served with notice of the restraining order. You could have learned of its terms if you were officially informed of the order's existence through proper legal channels. In some cases, there may have been a communication breakdown that prevented you from knowing about the restraining order. This could be due to changes in contact information or other factors. You may have been mistakenly identified as the subject of the restraining order, which was issued against you in error.
Notice plays a critical role in legal proceedings, including restraining orders. It can be a compelling defense if you can demonstrate that you were not served with proper notice and were unaware of the order.
No Willful Act
Apart from proving that a valid restraining order existed, the prosecution must show that you intentionally and willfully violated its terms. In legal terms, a "willful" act refers to an action that is purposeful and intentional. If you can demonstrate that your actions were not intentional but rather the result of a misunderstanding or lack of intent to violate the order, it can be a powerful defense strategy.
Examples of situations that could support the no willful act defense are:
- If you unexpectedly encounter the protected person and have no intent to violate the restraining order.
- Sometimes, communication with the protected person may occur inadvertently without intent to violate the order. For example, if you mistakenly send a text message or email to the protected person, believing it was intended for someone else, it may not be a willful violation.
- If a third party, without your knowledge or consent, facilitated communication between you and the protected person.
You build a strong defense by gathering evidence that supports your claim. This could include eyewitness accounts, communication records, and other relevant information that demonstrates your lack of intent to violate the restraining order.
How Much Jail Time Is There For Violating A Restraining Order In California?
When it comes to violating a restraining order in California, the penalties can vary depending on the specific circumstances of the case and your prior criminal record. Understanding the potential jail time for such violations is crucial, as it can significantly impact your future.
For a first-time misdemeanor violation of a restraining order, you may face:
- A maximum of one year in jail.
- A fine not exceeding $1,000.
If you have a prior conviction for domestic violence, a sexual offense, or a similar offense, violating a restraining order could be charged as a felony. Felony violations carry more severe penalties, including:
- A maximum of three years in prison.
- A fine not exceeding $10,000.
In addition to jail time and fines, violating a restraining order can lead to other adverse consequences, including:
- You may be placed on probation as part of your sentence, including strict conditions such as mandatory counseling or restraining order classes.
- A conviction for violating a restraining order can result in a permanent criminal record, affecting your employment prospects and housing opportunities.
- The court may modify the existing restraining order or issue a new, more restrictive one.
When facing legal issues, especially those related to crimes like violating a restraining order in California, consider all potential consequences, including immigration-related ones. While this offense primarily falls under state law, it can have implications for individuals with immigration status concerns, especially when facing conviction for an aggravated felony.
Certain criminal convictions can render non-U.S. citizens inadmissible to the United States. This means that if you are not a U.S. citizen and are convicted of violating a restraining order, it could affect your ability to re-enter the U.S. if you leave or your eligibility to adjust your status if you seek a green card.
For non-U.S. citizens already in the U.S., a conviction for violating a restraining order can lead to deportation or removal proceedings. This is especially true for those in the U.S. on a non-immigrant visa or undocumented.
Do Restraining Orders Show Up On Background Checks?
Background checks are routine processes used by various entities, including employers, landlords, and law enforcement agencies, to gather information about an individual's history. These checks can reveal various information, including criminal records, employment history, and financial data. The visibility of restraining orders on background checks largely depends on the type of restraining order and the purpose of the background check. Different entities conduct background checks for various reasons, for example:
- Many employers conduct background checks on job applicants. If you have a restraining order on your record, especially if it involves allegations of violence or harassment, it may appear in an employment background check.
- Landlords often run background checks on prospective tenants. It might be visible in a rental application background check if you have a restraining order related to domestic violence or harassment.
- Law enforcement agencies and legal professionals can access more comprehensive criminal records, which may include information about restraining orders.
- In some cases, restraining orders may not be readily visible in civil background checks, especially if unrelated to criminal charges.
Can I Get My Conviction Expunged?
Expungement, also known as dismissal in California, is a legal process that allows individuals with certain criminal convictions to have those convictions set aside or dismissed from their records. It can provide a fresh start by erasing or significantly reducing the negative consequences of a conviction.
Expungement is generally available for criminal convictions, but the eligibility criteria and procedures can vary depending on the conviction and the circumstances. When it comes to restraining order convictions, there are several key points to consider:
- The type and severity of the restraining order violation can impact the eligibility for expungement. Some convictions may be more amenable to expungement than others, especially if they involve non-violent violations.
- Completing all court-ordered requirements and probationary periods associated with the conviction is typically necessary to be eligible for expungement. Failure to comply with these orders may affect eligibility.
- There may be a waiting period before you can apply for expungement. This waiting period can vary, and it often starts from the date of your conviction or the end of your probation, whichever is later.
- Given the complexity of the expungement process and the nuances of restraining order convictions, it's highly advisable to consult with an experienced attorney. They can assess your specific situation and guide the likelihood of success.
Does Conviction Affect Gun Rights?
California has stringent firearm possession and ownership laws, particularly for individuals with certain criminal convictions. These laws are designed to enhance public safety and prevent individuals who may pose a danger from accessing firearms. When it comes to restraining order convictions, the relationship with your firearm rights can be complex and depends on several factors:
- If your restraining order explicitly includes firearms-related provisions, such as an order to surrender or not possess firearms, violating those provisions can lead to additional legal consequences and further restrictions on your firearm rights.
- In California, felony convictions typically result in a 10-year firearm prohibition, which means you cannot own or possess firearms for a decade following your conviction. Certain restraining order violations can be charged as felonies, making this prohibition relevant.
Can A Victim Violate A Restraining Order?
Also known as protected persons, victims of a restraining order cannot face legal repercussions for contacting you, the “restrained person.” However, if the order was taken against you, you face arrest and are prosecuted for a restraining order violation. A protected person should not contact the defendant at any point. The defendant could use this as evidence that you do not fear them.
Are there related offenses?
There are several offenses related to the violation of a restraining order. These offenses can vary depending on the jurisdiction, but some common examples include:
Domestic violence is a deeply concerning issue that involves abusive behavior within intimate relationships. Domestic violence crime is a related offense to violation of a restraining order because it is a crime that is often committed by abusers against their victims. Domestic violence can include a variety of acts, such as physical assault, sexual assault, emotional abuse, and financial abuse.
Stalking, California, PC 646.9
Under California Penal Code 646.9, stalking is maliciously, willfully, and repeatedly following or harassing someone else and making a credible threat to place that person in reasonable fear for their safety or the safety of their immediate family.
Stalking is a related offense to the violation of a restraining order because it often involves the same type of conduct: following, harassing, and threatening another person. However, stalking does not require that the victim have a restraining order against the defendant.
Stalking is a felony punishable by up to five years in prison, a fine of up to $10,000, or both. If the defendant has been previously convicted of stalking, the penalty is increased to up to seven years in prison.
Criminal threats, California PC 422
California Penal Code Section 422 (PC 422) makes it a crime to threaten to commit a crime that will result in death or great bodily injury to another person. This includes threatening to kill the victim, harm them with a weapon, or cause serious physical pain or injury.
Criminal threats are related to the violation of a restraining order because they can both be used to intimidate and control another person. However, criminal threats do not require that the victim have a restraining order against the defendant.
Criminal threats are a felony punishable by up to three years in prison, a fine of up to $10,000, or both. If the defendant used a deadly weapon or firearm to make the threat, the penalty is increased to four years in prison.
Elder abuse, California PC 368
California Penal Code Section 368 (PC 368) defines elder abuse as the physical or emotional abuse, neglect, or financial exploitation of a person who is 65 years of age or older. To convict someone of elder abuse under PC 368, the prosecution must prove the following elements beyond a reasonable doubt:
Elder abuse is a misdemeanor punishable by up to one year in jail, a fine of up to $1,000, or both. If the elder abuse results in serious bodily injury, it may be charged as a felony, punishable by up to four years in prison.
Find a Reliable Criminal Attorney Near Me
A court-issued protective order is binding, and strict compliance with all its terms is imperative. Violating it can lead to severe legal consequences, including jail/ prison terms and hefty fines. If facing charges for violating a restraining order, seek the assistance of an experienced defense lawyer. We have a strong track record in handling such cases at Chula Vista Criminal Attorney. Contact us at 619-877-6894 for a free case evaluation and consultation. Protect your legal rights today.