A restraining order or protective order is an order that is issued by a judge intended to protect someone from being stalked, harassed, threatened or harmed by another person who is specifically named in the order. The restraining order typically describes the type contact the individual is prohibited from having with his or her alleged victim, whether it be via phone, email or text contact, or coming within a certain distance of the person. When you are named as the “restraining party” in the order, and you deliberately disregard the specific terms of the restraining order you can be charged with a violation of a restraining order under Penal Code section 273.6. Violation of a restraining order is sometimes referred to as contempt of court. If you are the restraining party and you have violated a restraining order, you can be facing serious consequences.
However, in order for the prosecution to be able to obtain a conviction of violation of a restraining order against you, the following elements must be proved:
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Elements of Violation of a Restraining Order
- A legal restraining order was issued by the court /judge,
- The restraining party knew about the order, and
- The restraining party willfully and intentionally disregarded the terms of the order
Restraining Order – What Penal Code section 273.6 means by a “restraining order” is that there must be evidence that the restraining order in question is a legal restraining order and that it was given in the proper jurisdiction.
The Person “Knew” About the Order – You must have had knowledge of the restraining order either by hearing the judge order it in court, hearing an officer tell you about it, or have it in writing by a third party.
Willful Violation of the Order – Willful means that that you violated the order intentionally or on purpose. If you accidently run into the person who you were ordered to stay away from, you haven’t violated the terms of the order. What you need to do in such an instance is refrain from having any communication with that person and leave the area immediately. Only if you fail to do these two things can you be found guilty of violating the restraining order under Penal Code section 273.6.
Here is an example of a violation of a restraining order: Janet and her husband get into an argument. He lashes out at her physically and hits her. The police are called and he is arrested. After court proceedings take place a restraining order is instated. The terms of this restraining order include not contacting each other in any way, not being within 500 yards of each other, and for Janet’s husband to move out of the home pending trial. Janet’s husband believes he has been unfairly treated and refuses to move out. Because this is a violation of the terms of the restraining order set by the judge, he is arrested and charged with a violation of Penal Code section 273.6.
Categories of Restraining Orders
The specific types of restraining orders that can be issued by a judge are civil harassment restraining orders, restraining orders for elder abuse cases, restraining orders for violence that occurs at the workplace, and finally and most commonly domestic violence restraining orders.
Civil Harassment - These restraining orders are meant to protect from neighbors, friends, or other people with whom you do not share a close intimate relationship.
Elder Abuse - These restraining orders are meant to protect senior ages 65 and older and even younger people who have certain disabilities and cannot protect themselves.
Workplace Violence - These restraining orders are meant to protect an employee from violence in the workplace.
Domestic Violence - These restraining orders are meant to protect to victims of domestic violence – which generally include people with which you have an intimate relationship.
Various Stages of Restraining Orders
Restraining orders come in three stages of protection:
Emergency Protective Orders - Emergency protective orders, otherwise known as EPOs, are issued in cases of emergency. These orders are most often ordered by the police after responding to calls of domestic violence. If there is evidence of immediate danger, the officer who responded to the call will get a hold of a judge who is on call to issue an emergency protective order. This emergency order can last up to 7 days. After the protective order expires, you must appear before a judge and request an extension, if necessary. You can request either a temporary restraining order or a permanent restraining order.
Temporary Restraining Order – Temporary restraining orders, commonly referred to as TROs, are restraining orders that can last up to two or three weeks. Temporary restraining orders are issued in cases of harassment or after an emergency restraining order expires.
Permanent Restraining Order - Permanent restraining orders, or PROs, are issued after court proceedings when the court determines that there is evidence of extended danger. The court hears from both the alleged victim as well as the defendant in order to decide whether or not to issue the order. The judge will also determine the specific restrictions and terms of the restraining order, as well as the period of time during which the protective order will be in effect. Permanent restraining orders can last for several years if necessary.
Penalties for Violating a Restraining Order
Penalties for violations of Penal Code section 273.6 vary dependent on the circumstances of the case. The penalties can be increased if this is not your first offense and if the victim sustained a serious injury. If this is the first time you are in violation of a restraining order, it will likely be charged as a misdemeanor crime. As a misdemeanor, you can face a maximum of $1,000 in fines and a maximum of one year in county jail. If convicted of felony violation of a restraining order you can receive a maximum three years in state prison and a maximum of $10,000 in fines. Additional penalties for conviction include: court fines, restitution to cover counseling for the victim, hospital costs and medical treatment costs. You may also be ordered to relinquish any firearms or other weapons in your possession. A violation of an order of no firearms during the course of a restraining order can result in an additional charge of a misdemeanor or felony.
Defenses for Violating a Restraining Order
There are some defenses that a skillful attorney can explore when trying to prove that a person is innocent of a charge of Penal Code section 273.6 violation of a restraining order.
Illegal Restraining Order - This is the first question that a criminal defense lawyer will ask. When a restraining order is issued you are mandated to abide by it with no excuses. Sometimes, however, these orders are issued on illegal basis. If the judge didn’t have the proper authority or jurisdiction to order it, if it was issued improperly, or if there was no imminent danger present because the victim embellished the facts of the case, the restraining order is considered invalid does not have to be adhered to. If this is the case, the Criminal Law Office of Leah Legal will present the evidence to the judge and prosecutor and advocate for the order to be revoked immediately and the charges dropped.
No Knowledge of the Restraining Order - You must have been aware of the restraining order in order to be in violation of a restraining order. A person named in a restraining order must be legally notified of the restraining order that is in place against them. There are specific requirements as to how the person named in the restraining order is to be notified in order to be in violation of Penal Code section 273.6. You must be notified personally by the judge if you are present in court, personally by an officer who has been ordered to notify the named party due to the justifiable belief that the named party is otherwise unaware that they have been named in a restraining order, or it must be in writing by a third party who is not involved in the case.
False Accusations - It is quite common for people to falsely accuse others of violating a restraining order. If this is the case, a dedicated and experienced attorney will investigate and likely find proof that you did nothing wrong and were falsely accused of a violation.