Violating a Restraining Order

Violating a restraining or protective order is a serious offense under California Penal Code 273.6. This crime occurs when an individual intentionally and knowingly disobeys a court-issued protective or restraining order. Such orders, including temporary restraining orders (TROs) in civil cases and protective orders in criminal court, are designed to safeguard victims from harm, harassment, threats, stalking, or physical abuse.

Restrictions Imposed by the Orders

The terms of these orders typically prohibit the restrained individual from making any form of contact with the protected person. This includes communication through phone calls, text messages, emails, social media, and direct face-to-face interactions.

Criminal Protective Orders (CPOs)

In domestic violence prosecutions, judges often issue Criminal Protective Orders (CPOs) to prevent defendants from engaging in harassment, abuse, stalking, or threatening behavior towards the alleged victims. These orders are common in criminal cases involving violence or credible threats of violence and are closely linked with domestic violence cases in California.

Types of California Restraining Orders

In California, courts issue various types of restraining or protective orders, each designed for specific situations. Violating any of these orders can lead to penalties under Penal Code 273.6.

Domestic Violence Restraining Order: This order is issued to protect individuals from abuse by an intimate partner. It aims to prevent physical, emotional, or other forms of abuse in intimate relationships.

Elder or Dependent Adult Abuse Restraining Order: Issued to protect elders (aged 65 and above) and dependent adults (aged 18-64 with disabilities), this order safeguards against physical, emotional, or financial abuse.

Contempt of Court Charges: Violating the terms of any of these orders can result in contempt of court charges under California Penal Code 166 PC.

Emergency Protective Order (EPO): Law enforcement officers can request an EPO during a domestic violence incident response. This order is immediate and typically lasts for 7 days, requiring the alleged abuser to avoid contact with the victim.

Temporary Restraining Order (TRO): After an EPO expires, or in cases of harassment, individuals can request a TRO from the court, effective for up to 3 weeks. Applicants must demonstrate they are victims of harassment, credible threats, or behavior causing substantial emotional distress.

Permanent Restraining Order (PRO): A PRO is issued following a court hearing where both parties present their arguments. The judge assesses the evidence and decides on the necessity and terms of the PRO, which can last up to 3 years and be extended if needed. Common restrictions include no contact with the victim, maintaining a certain distance, and firearm restrictions.

How Prosecution Proves a Restraining Order Violation in California

In California, to convict someone under Penal Code 273.6 for violating a restraining order, a prosecutor must establish several key elements:

1. Lawful Issuance of a Protective Order: The court must have issued a protective order in accordance with legal procedures.
2. Defendant’s Awareness of the Order: You must have been aware of the existence of the court order. This awareness is established if you had the opportunity to read the order, regardless of whether you actually did so.
3. Ability to Comply with the Order: You must have been capable of complying with the terms set out in the court order.
4. Willful Violation of the Order: The violation of the order must have been willful, meaning it was done willingly or on purpose.

Understanding ‘Willful’ Actions and Additional Charges

• An action is considered ‘willful’ if it is carried out willingly or with intent.
• Importantly, if you commit another crime while violating a restraining order, you can face charges under both PC 273.6 and the statute relevant to the other crime.

Consequences of Violating a Restraining Order

Misdemeanor Offense: Typically classified as a misdemeanor, a violation of Penal Code 273.6 involves:

• A potential jail term of up to one year in county jail.
• A mandatory 30-day jail sentence if the violation resulted in victim injury.
• Fines reaching up to $1,000.
• Compulsory participation in counseling and domestic violence classes.
• Financial contributions to a battered women’s shelter and victim restitution.

Enhanced Charges for Repeat Offenses: For a second offense within seven years involving violence or threats, the charge can escalate to a “wobbler,” allowing for prosecution as either a misdemeanor or a felony.

Felony-Level Violations: In cases classified as felonies, the penalties intensify:

• State prison sentences of 16 months, 2 years, or 3 years.
• Fines up to $10,000.
• Probation for a maximum of one year.
• A minimum 30-day jail term for repeat offenders within one year, especially if the violation results in victim injury.

Additional Legal Implications

• Violators lose the legal right to own or possess firearms.
• Possession of firearms can lead to further criminal charges.
• Court-mandated anger management or domestic violence counseling may be required.

Defending Against Charges of Violating a Restraining Order

1. Lack of Knowledge: If you were not aware of the restraining order, this can be a defense. It must be proven that you did not have a reasonable opportunity to learn about the order’s existence or terms.
2. Inability to Comply: Circumstances may have made it impossible for you to comply with the order. This could include situations where you were unaware of the protected person’s presence in a public place.
3. False Accusation: Sometimes, allegations of violating a restraining order are based on false accusations. Proving that the claim was fabricated or exaggerated can be a valid defense.
4. Accidental Violation: If the contact with the protected person was accidental and not intentional, this can serve as a defense. This might apply in cases where you unknowingly entered a place at the same time as the protected person.
5. Order Was Not Legally Issued: Challenging the legality of the restraining order’s issuance can be a defense. This involves showing that the order was not properly issued according to legal procedures.

Defending against a charge of violating a restraining order requires a clear and effective legal strategy. At the Law Offices of Arash Hashemi, we focus on crucial aspects of your case, including challenging the legality of the restraining order, proving a lack of awareness about the order, and contesting any intentional violation. We also consider your ability to comply with the order and address any additional related charges. If you’re facing such charges, immediate legal assistance is essential. Contact Los Angeles Criminal Defense Attorney Arash Hashemi at our Westside Towers office, 11845 W Olympic Blvd #520, Los Angeles, CA 90064, or call (310) 448-1529 to schedule a consultation.

Disclaimer: This content is for informational purposes only and does not constitute legal advice or a prediction of outcomes, as individual circumstances vary and laws may change over time. Those contemplating legal action should seek advice from a qualified attorney to understand how current laws apply to their specific situation. For detailed legal guidance on the topics discussed, please reach out to the author directly.