Family and relationship disagreements or arguments can lead to physical abuse or threats. You must protect yourself from an abusive spouse, ex-spouse, or partner. Restraining or protective orders help protect individuals who have been physically abused or threatened with abuse from the abusive partners or family members by forbidding them from getting in touch with you. Violating the protective order is a criminal charge with civil penalties. At San Jose Criminal Attorney Law Firm, we are here to help you if you have an issue of domestic violence. Below, we have discussed California statutes on violation of a restraining order.
Overview of a Restraining Order
California PC 273.6 defines a protective order as a court order that is issued against the following behaviors:
- Physical abuse
The order is designed to protect persons who were intimate or in a close relationship with the restrained person's physical violence or threats. The order can also be for protecting people who have had no intimate relationship with the offender like coworkers and neighbors. Therefore, if an intimate partner has been harassing you in public places or at work, physically beating you, and constant phone calls, they can be issued with a protective order due to these behaviors.
Stalking is the most prevalent behavior that has warranted the issuance of many restraining orders. A person is considered to be stalking another if they follow them around, peep through windows, sending unwanted gifts, and portray other pushy conducts. When issuing the order, the court often lists down the behavior that warranted the order. Also, the protective order will mention the type of contact you are prohibited from having with the person you are being restrained from. Contact as per PC 273.6 includes:
- Anything that includes reaching out to the protected person directly
- Messages and phone calls
- Interaction through social media sites like Facebook and Twitter
Domestic Violence Protective Orders
Multiple kinds of protective orders are available, but the most common are issued in cases involving domestic violence. The domestic violence protective orders are issued to help protect people from intimate partners. You are eligible to ask for a protective order in this case if:
- You have been abused, or someone has scared you using threats, and
- An intimate relationship exists between you and the offender
Some of the people considered to be close to you in this case include:
- Married partners
- Spouse or ex-spouse
- A person you are currently dating or dated
- A person you live or have lived together and the relationship was more than friends
- Closely related parent, in-law sister or brother
Parents with kids below the age of 12 years who believe they are in an abusive relationship can also ask for a protective order. But if the kids are above 12 years, they are eligible to ask for a restraining order on their own.
Other Types of Restraining Orders
Restraining orders are not only limited to close relationships. Coworkers and neighbors can be restrained, too, but in different kinds of protective orders. These orders include:
Civil Harassment Protective Order
It is a kind of order issued to protect you against people whom you are not in an intimate relationship or close relationship with. It can be used on people like neighbors, roommates, friends, and distant family members.
Elder Abuse Protective Order
The order protects the elderly or people who are 65 years and higher. Also, it protects dependent persons. Dependent persons are those people with particular disabilities aged between 18 years and 64 years. The order is issued to protect them from neglect, physical, emotional, and financial abuse.
Workplace Violence Restraining Order
The order is often requested by an employer to safeguard employees from violence, threats, stalking, or harassment in the workplace.
Kinds of Domestic Violence Protective Orders
There are three levels or types of protection from this type of protective order. The levels include:
Emergency Restraining Order
Police officers request an emergency restraining order at the scene of domestic violence. The officers call a judge asking him or her to issue an order forbidding the offender from getting in touch with the victim if they deem the offender dangerous. The restrained person must be informed of the protective order, and it begins to run immediately and goes for up to seven days. In the ruling, the judge will request the offender to leave home or keep off the victim. The one week allowed in the order will allow you to prepare and ask for a temporary protective order.
Temporary Protective Order
When you go to the court after the expiry of the EPO, you will fill out an application form telling the judge why you need protection from the offender. Some of the things you should mention when filling out the form are:
- You are being harassed or threatened with violence by the offender
- The offender is annoying
- The offender is subjecting you to what would cause a reasonable person emotional distress
After the judge goes through the application, he or she will determine if you are eligible for a restraining order or not. This kind of order often lasts for between twenty to twenty-five days. During this time, the court holds a hearing to decide whether to issue a permanent restraining order.
Permanent Restraining Order
The court conducts a court hearing before the expiry of TRO to determine if you need continued protection or not. The judge listens to both sides, the defendant and the victim to decide. They consider the conduct of the offender and the emotional and physical harm the victim has undergone. Although the order is called permanent, it only lasts for at least three years, after which you have to ask for another order. When an order is issued, it comes with conditions. Some of these conditions or restrictions are:
- The defendant to leave home and look for another place to live
- The offender to desist from contacting the protected individuals
- The restrained person to keep a certain distance from the protected person
- The restrained person to surrender any weapons he or she possesses
- The defendant to pay attorney fees for the victim who was seeking a restraining order
- The defendant paying restitution fees
It’s always advisable that when trying a protective order or want to contest an order, you retain the services of an attorney. The reason for this is the guidelines and the forms required in the process. They are sophisticated and need knowledgeable people making attorneys the best suitable professionals to have by your side during this process.
Elements the Prosecution Attorney needs to Convict You under PC 273.6
Failure by the restrained party to adhere to the terms and conditions of the protection order, you are subject to criminal charges. For you to be convicted of violating a protective order, the prosecution must prove the following elements:
The Court Issued a Legal Protective Order
When a court issues a restraining order, you are required to abide by its terms and conditions. But if the order is invalid, then you are not bound by it, and a violation of the order isn’t going to hold. Invalid restraining orders are those issued by courts that don’t have the mandate to do so or those that had no basis for issuance. A prosecutor, therefore, has to demonstrate that the protective order was issued by a court within its powers and had a legal basis.
You Possessed Knowledge about the Restraining Order
For a prosecution to convict you under PC 273.6, they must demonstrate that you knew the restraining order. Police officers often serve the orders verbally when responding to incidents of domestic violence. If you were not present in court, writing by the judge or any other third party can be delivered to you in person by police officers. A notice of the order can also be served orally by the judge if the offender is in court. If you were served with a note in any of these manners, it would be easy for the prosecutor to show you had the opportunity to read the order even if you didn’t read it, thus showing you knew of it. Remember, the court doesn’t require the prosecution to provide proof that the defendant was served. What is more important is knowledge.
You Willfully Violated the Order
People who know of the existence of a restraining order are keen not to break it because they understand the penalties associated with violating an order. However, some people choose to ignore the order willfully by contacting the protected persons. If the order was no contacting a protected person and you do it by sending a text or mail, then the prosecution can quickly show that you intentionally violated the order.
Penalties for Violating a Restraining Order
Typically, the prosecution charges a violation of a protective order as a misdemeanor. The penalties for being convicted of this charge include:
- No more than three hundred and sixty-five days jail sentence
- A fine of one thousand dollars or less
- Misdemeanor probation with conditions
Some of the requirements you will be forced to adhere to in misdemeanor probation include:
- Participation in anger, drug, and domestic violence counseling classes
- Restitution of the victim for medical bills and counseling
- Payment to a battered women's shelter
- Mandatory thirty-day sentence if the victim is injured
Based on the nature of your violation and efforts to continue with counseling, you can serve a jail term of two days in place of thirty days sentence.
It is at the discretion of the prosecution to charge you with a wobbler if you have a prior conviction of violating an order with a duration of seven years. The prosecution will file a misdemeanor charge or felony. The punishment for conviction of a misdemeanor charge remains the same. The penalties for a felony include:
- State imprisonment for sixteen months, twenty-four or thirty-six months
- Ten thousand dollars in fine
- Felony probation
- No more than a year in jail
If a victim sustains injuries after violating your second protective order within twelve months, the potential penalty for a conviction is between six months to twelve months in jail for a misdemeanor. For a felony, conviction penalties are no more than three years in prison and felony probation.
The law also forbids people from owning or possessing firearms when under a restraining order. If you are issued with the order, and you are a firearm owner, you should sell it or relinquish it. If you fail to do so, the prosecution can file misdemeanor or felony charges against you. If convicted under a misdemeanor charge, you are subject to a fine of up to one thousand dollars or twelve-month jail sentence. When convicted of a felony charge, the punishment is no more than three years sentence.
Legal Defenses for Violation of a Protective Order
Luckily, it is possible to avoid the penalties for a conviction under PC 273.6. The best way to do so is by building a solid defense with the help of an attorney. Some of the common legal arguments include:
Lack of Knowledge of the Order
As said earlier, you can’t be convicted of willfully violating an order if you didn’t know about it. Your attorney can argue that you were not in court when the order was issued, or you were never advised about it. Also, you can make an argument that when the police officer at the domestic violence scene was notifying the victim of the issuance of an emergency restriction order, you were not present. If a third party in writing issued the order, you could claim that the order was served to the wrong person, or they sent it to the incorrect address.
Lack of Intent
It is also possible to argue that you didn’t willfully or intentionally violate the order. If you meet the restricted person by accident in a public place, then there is no way you have disobeyed a court order against contacting someone. Keep in mind that when you are restrained, even if the victim reaches out to you trying to reconcile, you cannot comply. The only time to meet is through termination of the order by the court.
Any victim can claim that you violated the restraining order. However, what they might lack is proof to corroborate the story. Insufficient evidence or tabling evidence to show you are falsely accused is the only way out. As we said earlier, do not comply with a request to reconcile by the victim. The reason being that they might be lying to you so that when you try contacting them, they call the law enforcers on you for violating a restraining order. Some of the things that motivate people to falsely accuse others include anger, jealousy, and revenge falsely.
Expungement for Violating a Protective Order
It is possible to clear your criminal record after being convicted under PC 273.6. After an expungement, there will be no criminal history on your file, and you don’t have to disclose your criminal history to potential employers. However, even after expungement, there are certain situations where you must disclose the fact that you were expunged. These scenarios include:
- When applying for a job in the public sector
- When applying for a professional license
- When running for an elective post
- During license application by the California lottery commission
Not everybody convicted for violating a restraining order is eligible for expungement. Those that qualify must meet the following requirements:
- You did not serve state imprisonment
- You completed all the terms of probation and your sentence.
- You have not been charged with a new offense
- You never violated your violation
Persons who have been convicted of a felony charge under PC 273.6 do not qualify for expungement.
Other Related Offenses
Violating a protective order is based or initiated by the following offenses:
Domestic violence laws apply to spouses, ex-spouses, people you live or lived together with, people you dated or dated but broke up, and the other parent of your child. When law enforcers are responding to a call of domestic violence, if they deem the offender dangerous, they can request for an emergency restraining order from a judge. Based on the circumstances, the protective order can become temporary or permanent. After the emergency restraining order has been issued and the restrained party tries to contact the victim to commit another act of violence, then domestic violence triggers a violation of a restraining order.
It is possible to defend the charges of domestic violence by arguing that you were acting in self-defense, it was an accident, false allegations, and injuries by the victim didn’t result from your actions.
Stalking is defined under PC 646.9 as harassing or threatening another person to the extent the person fears for his or her safety and that of their families. It involves making chronic phone calls, text messages, and other annoying or threatening behaviors. The offense is a wobbler. It is at the discretion of the prosecutor to charge you with a felony or misdemeanor. A misdemeanor conviction attracts potential penalties of 364 days of a jail sentence or no more than a thousand dollars in fine.
On the other hand, a felony conviction will lead to a prison sentence of thirty-six months or ten thousand dollars or less in fine. Persons with prior convictions under PC 273.6 are charged with a felony, and in the event of a sentence, they serve up to five years in state prison. The actions of stalking someone when you have been restrained prompts violation of a restraining order.
The offense is codified under PC 422. It forbids individuals from threatening to harm or kill another person when the person has a reasonable belief that you intend to act on your threats immediately. If you acted on your threats or not, it will still be considered a crime. Threats trigger the court to issue a restraining order. In case you continue making the threats even after you have been restrained, the court goes ahead to charge you with a violation of a protective order.
The offense is also a wobbler. If you get charged with a misdemeanor and convicted for criminal threats, you might end up spending twelve months in jail, or no more than $1,000 fine. When convicted of a felony, the judge imposes a strike on your record plus sentences you to a maximum of three years in prison.
To defend against the charges, you can argue that the threat was ambiguous, the recipient of the threat couldn’t have reasonably feared for his or her safety, the recipient wasn’t actually in fear, and that the agitation by the recipient was momentary.
PC 368 focuses on protection on persons who are aged 65 years or more from neglect, physical, and emotional abuse. The elderly are also protected from financial exploitation by their caregivers or family. Violating PC 368 can make a judge issue a restraining order. If you persist with the conduct while the protective order is still active, the court is forced to charge you with a violation of a protective order.
As you can see, violation of the order is based on elderly abuse. If convicted for misdemeanor PC 368, the potential penalty is not more than 364 days in jail. A felony PC 368 conviction attracts up to forty-eight months imprisonment.
The offense is defined under PC 594, and it prohibits persons from destroying someone else’s property. The definition includes shared property. So, if you break the windows of your ex-wife’s house while you are restrained, you have violated a restraining order even if you share ownership of the property.
Find a San Jose Criminal Attorney Near Me
If, after reading this article, you haven’t understood PC 273.6 or you have been accused of violation of a restraining order, contact the California Criminal Lawyer Group at 408-622-0204. Our attorneys will offer free consultation and answer all your questions regarding protective orders and domestic violence.