Violation of Restraining Order

Violation of Restraining Order 2017-12-10T11:36:40+00:00

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Violation of Restraining Order

A restraining, or protective order, is a court issued decree directed toward someone who has been accused, or convicted, of a violent crime or serious threat of physical violence, or of domestic abuse. Under California Penal Code 273.6, it is a crime to violate the terms of a restraining order. The statute reads as follows:

273.6. (a) Any intentional and knowing violation of a protective order, as defined in Section 6218 of the Family Code, or of an order issued pursuant to Section 527.6, 527.8, or 527.85 of the Code of Civil Procedure, or Section 15657.03 of the Welfare and Institutions Code, is a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000), or by imprisonment in a county jail for not more than one year, or by both that fine and imprisonment.

(b) In the event of a violation of subdivision (a) that results in physical injury, the person shall be punished by a fine of not more than two thousand dollars ($2,000), or by imprisonment in a county jail for not less than 30 days nor more than one year, or by both that fine and imprisonment. However, if the person is imprisoned in a county jail for at least 48 hours, the court may, in the interest of justice and for reasons stated on the record, reduce or eliminate the 30-day minimum imprisonment required by this subdivision. In determining whether to reduce or eliminate the minimum imprisonment pursuant to this subdivision, the court shall consider the seriousness of the facts before the court, whether there are additional allegations of a violation of the order during the pendency of the case before the court, the probability of future violations, the safety of the victim, and whether the defendant has successfully completed or is making progress with counseling.

(c) Subdivisions (a) and (b) shall apply to the following court orders:
(1) Any order issued pursuant to Section 6320 or 6389 of the Family Code.
(2) An order excluding one party from the family dwelling or from the dwelling of the other.
(3) An order enjoining a party from specified behavior that the court determined was necessary to effectuate the order described in subdivision (a).
(4) Any order issued by another state that is recognized under Part 5 (commencing with Section 6400) of Division 10 of the Family Code.

(d) A subsequent conviction for a violation of an order described in subdivision (a), occurring within seven years of a prior conviction for a violation of an order described in subdivision (a) and involving an act of violence or “a credible threat” of violence, as defined in subdivision (c) of Section 139, is punishable by imprisonment in a county jail not to exceed one year, or pursuant to subdivision (h) of Section 1170.

(e) In the event of a subsequent conviction for a violation of an order described in subdivision (a) for an act occurring within one year of a prior conviction for a violation of an order described in subdivision (a) that results in physical injury to a victim, the person shall be punished by a fine of not more than two thousand dollars ($2,000), or by imprisonment in a county jail for not less than six months nor more than one year, by both that fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170. However, if the person is imprisoned in a county jail for at least 30 days, the court may, in the interest of justice and for reasons stated in the record, reduce or eliminate the six-month minimum imprisonment required by this subdivision. In determining whether to reduce or eliminate the minimum imprisonment pursuant to this subdivision, the court shall consider the seriousness of the facts before the court, whether there are additional allegations of a violation of the order during the pendency of the case before the court, the probability of future violations, the safety of the victim, and whether the defendant has successfully completed or is making progress with counseling.

(f) The prosecuting agency of each county shall have the primary responsibility for the enforcement of orders described in subdivisions (a), (b), (d), and (e).

(g) (1) Every person who owns, possesses, purchases, or receives a firearm knowing he or she is prohibited from doing so by the provisions of a protective order as defined in Section 136.2 of this code, Section 6218 of the Family Code, or Section 527.6, 527.8, or 527.85 of the Code of Civil Procedure, or Section 15657.03 of the Welfare and Institutions Code, shall be punished under Section 29825.
(2) Every person subject to a protective order described in paragraph (1) shall not be prosecuted under this section for owning, possessing, purchasing, or receiving a firearm to the extent that firearm is granted an exemption pursuant to subdivision (f) of Section 527.9 of the Code of Civil Procedure, or subdivision (h) of Section 6389 of the Family Code.

(h) If probation is granted upon conviction of a violation of subdivision (a), (b), (c), (d), or (e), the court shall impose probation consistent with Section 1203.097, and the conditions of probation may include, in lieu of a fine, one or both of the following requirements:
(1) That the defendant make payments to a battered women’s shelter or to a shelter for abused elder persons or dependent adults, up to a maximum of five thousand dollars ($5,000), pursuant to Section 1203.097.
(2) That the defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant’s offense.

(i) For any order to pay a fine, make payments to a battered women’ s shelter, or pay restitution as a condition of probation under subdivision (e), the court shall make a determination of the defendant’s ability to pay. In no event shall any order to make payments to a battered women’s shelter be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support. Where the injury to a married person is caused in whole or in part by the criminal acts of his or her spouse in violation of this section, the community property may not be used to discharge the liability of the offending spouse for restitution to the injured spouse, required by Section 1203.04, as operative on or before August 2, 1995, or Section 1202.4, or to a shelter for costs with regard to the injured spouse and dependents, required by this section, until all separate property of the offending spouse is exhausted.

Elements of Violation of a Restraining Order

To be found to have violated a restraining order, you must have:

  • known about the order
  • that the order was legally issued
  • and you intentionally violated the terms of the order

You have notice of the order if you are in court when the order is pronounced by the judge, or when a police officer either advises you or serves you with the restraining order.

Examples of Prohibited Conditions

A judge will order you to refrain from certain conduct or activities such as the following:

  • No contact with a person including phone calls, text messages or correspondence or visits at an office or school
  • You may not use force or violence against a person
  • To vacate your house and find new lodgings
  • To refrain from making threats against someone
  • To keep within a certain distance of someone or building
  • To not own or possess firearms during the length of the order

If you own any firearms, you are required to turn them over to a law enforcement agency or sell them to a licensed dealer.

Types of Restraining Orders

There are 4 different types of restraining orders:

1) Domestic violence: issued to protect an intimate partner who has suffered physical injury or mental abuse

2) Civil harassment: issued to protect anyone other than an intimate partner such as a stalker or neighbor

3) Elder or dependent abuse: these protect persons with disabilities who are 18 to 64, or anyone 65 and over from abusive conduct directed towards them

4) Workplace violence: issued to protect an employee from violence or threats of violence from co-workers

Time Periods

Any of these 4 types of orders can be an emergency protective order, or EPO, that can last up to 7 days. Police may request and obtain an EPO in a domestic violence situation. After the 7 day period, you have to request a TRO, or temporary restraining order, or a permanent order.

A TRO, temporary restraining order, lasts for 2 or 3 weeks at which time the court will hold a hearing to see if a permanent order should issue.

After a hearing and if the court decides that a PRO, or permanent restraining order should issue, it can last up to 3 years and may be renewed.

Penalties for a Violation

You face criminal charges if you knew about the order and intentionally violated any of its conditions. You can be charged as either a misdemeanor or felony depending on the nature of the violation and if you had violated an order in the past.

A misdemeanor carries the following penalties:

  • Jail time of up to one year
  • A fine up to $1,000
  • Victim restitution for counseling or medical expenses incurred by the victim
  • Counseling
  • Payments to a battered women’s shelter

A felony can result in probation, one year in jail, or state prison time of 16 months, 2 or 3 years and/or a fine up to $10,000.

You can receive a mandatory minimum jail sentence of 30 days if the protected person suffered an injury, although the court has the discretion to suspend serving most of the jail time if your attorney can present mitigating circumstances or factors.

Defenses to Violating a Restraining Order

There are defenses available to you if you are charged with violating a court order:

  • The order was not legally issued

In these cases, the court lacked jurisdiction over you or the judge had no legal basis for issuing it.

  • You were unaware of the order

You must not have been present in court when the order was issued, been served or made verbally aware of the order.

  • Unintentional violation

Accidentally running into the person on the street or store is not an intentional violation. It is best if you had immediately left the scene and did not communicate in any manner with the individual. It is also not recommended that if the protected individual contacts you that you reply since it could be a trap. The protected party has to move the court to terminate the order before you can do any of the activities prohibited in the order.

Other Related Offenses

Along with violating a restraining order, you may have committed other criminal offenses as well, including:

  • Domestic violence or battery offense
  • Assault (simple or aggravated)
  • Child endangerment
  • Stalking
  • Criminal threats
  • Elder abuse
  • Vandalism

If you seriously injure someone or are convicted of making a criminal threat, you also risk having a strike on your criminal record. A second strike doubles your sentence while a third is mandatory 25-years to life.

Retain a California Criminal Defense Attorney

If you are charged with violating a restraining order, consult with a California criminal defense lawyer to see if there are viable defenses or if your attorney can offer mitigating factors that can either result in dismissing the charge or some other satisfactory resolution.