A court will issue a restraining order when it believes that the accuser's life and safety are at risk. Many people served with a restraining order think it is a light issue. However, the law takes it seriously. Violating the order can result in a misdemeanor charge and can seriously affect your current and future life. If you are charged with the violation of a restraining order in Santa Ana, contact us at Darwish Law to help you develop a sound defense strategy for your case.
What is a Restraining Order?
Per PC 273.6, it is unlawful to break the terms of a stay-away order, restraining order, or protective order. The order protects individuals from abuse from a person with whom they have a close relationship. The individual seeking protection is known as a protected person.
A person can request a restraining order if they have been abused or threatened to be abused, and they have a close relationship with the defendant. The close relationship implies that they:
- are registered domestic partners or married
- are separated or divorced
- were or are currently dating
- used to or are currently living together
- have a child together
- are related by adoption, marriage or blood such as child, parent, sister, brother, or grandparent
- are step-relatives or in-laws in the current marriage
Abuse comprises physical contact resulting in pain or injury, verbal, sexual, economic, and emotional abuse. A guardian or parent can also request a restraining order on his/her children.
A domestic violence restraining order also prohibits you from contacting the protected person. It also involves making contact using social media, email, text message, phone, and face-to-face contact.
Sometimes stalking is the main issue of violating a restraining order. Usually, it involves conduct where you continuously follow the alleged victim or hang around their workplace or residence.
Different Types of Restraining/ Protective Orders
There are three main categories of restraining orders that a court can issue, namely:
Emergency Protective Order
When police respond to a domestic violence (DV) incident scene, they can ask the judge to issue an emergency protective order (EPO) immediately. It prevents you from contacting the protected person.
If you are still in the DV incident scene, the law enforcement officers will notify you that the order will become effective immediately. It will last for a week. After the seven (7) days have passed, the victim can request the court to issue a temporary restraining order.
Temporary Restraining Order (TPO)
A domestic violence victim could request a TPO that remains effective for three (3) weeks. The order can also be requested after the EPO expires.
The victim should complete an application that indicates they are an alleged victim of:
- A credible threat of violence or harassment
- Conduct that causes them to suffer significant emotional distress
- Annoying conduct for illegal purpose
The legal term "harassment" means threats that are practically credible or violent.
Before the TPO expires, a court hearing is held to check whether a permanent restraining order is essential.
Permanent Restraining Order
For the victim to acquire a PRO, you should attend a court hearing. The court will listen to all parties before making a decision.
Usually, the court will require evidence that your conduct is causing physical or emotional harm to the alleged victim. If the PRO is issued, the judge should outline how long the court order will remain effective and the restrictions.
The court order can be effective for three (3) years and could be prolonged if necessary. Some of the restrictions placed include:
- You should not contact the victim.
- You should be a certain distance away from the protected person.
- You must move from your home.
- You should pay attorney fees or victim restitution.
- You should give up the firearm rights.
What are the Elements of the Crime?
To be convicted of a violation of Penal Code Section 273.6 restraining order law, the prosecutor should establish that:
- A court of law legally issued a stay-away order.
- You were aware of the order.
- You could adhere to the order.
- You willfully broke the order
Dennis, a perfect example, has a stay-away order against his ex-wife Sylvia who should stay approximately one hundred meters from Dennis. Although Sylvia is aware of the order, both Sylvia and Dennis work together, something that the protective order does not address, and Sylvia will lose the only means of income should she lose her employment. When Sylvia goes to work the following day, her ex-spouse calls law enforcers and has Sylvia arrested.
In this case, Sylvia was aware of the order. However, she could not comply with it because the contact with Dennis was not avoidable. The alternative was losing her employment. Also, she did not willfully purpose to break the order since she was going to work.
Willfully means you engaged in the conduct deliberately, on purpose, intentionally, or willingly.
The legal term "knowledge" means you should have been aware of the stay-away order's existence. There are three (3) ways that you are well-thought-out to be aware of the court order.
If you attend a court hearing where the protective order is issued, you are considered to know of the order. The court will explain that the order has been issued and what terms you should follow.
If you did not appear at the court hearing where the stay-away order is issued, you would be served with the protective order. It will be sent to your recent address. Also, the police officer who came to the domestic violence incident scene could verbally tell you of the order.
On top of the knowledge of the order, you should be given adequate time to read and understand the order. That does not necessarily mean that you should read the protective order in its entirety.
Penalties and Sentencing for Violating a Restraining Order
Generally, violation of the stay-away order in California is considered a misdemeanor. It is punishable by:
- A maximum one-year jail sentence
- Fines of up to one thousand dollars
- Enrolment in a counseling program for drugs, violent conduct or anger management
- Compulsory thirty days if the protected person was injured.
- Victim restitution for psychiatric or medical expenses
Nevertheless, if you serve forty-eight hours in county jail, the court can waive the compulsory thirty days for reasons indicated on your record. It includes considerations of:
- The alleged victim's future safety
- Nature of your crime
- Your effect to complete counseling
- If any condition of the DV protective order was violated
Sometimes, the offense is charged as a wobbler if:
- It's your second Penal Code Section 273.6 PC conviction, or
- The offense involved violence
The term wobbler means the offense can be prosecuted either as a misdemeanor or a felony. It depends on the circumstances surrounding the case and your criminal history.
A felony attracts the following penalties:
- A three-year sentence in California state prison
- Ten thousand dollars in fines
Will You Lose Your Firearm Rights?
A violation of protective order conviction will only affect your entitlement to have a gun if it's a felony conviction. That means you can't own a firearm or possess one.
Does a Conviction Affect Your Immigration Consequences?
Violation of a stay-away order won't affect your immigration status. Sometimes a conviction can result in an immigrant being marked as inadmissible or deported. A perfect example is when the accused is sentenced for a California aggravated felony. However, a Penal Code Section 273.6 PC is not one of these crimes.
How to Fight PC 273.6 Charges
While the consequences of a conviction are severe, your experienced criminal defense lawyer could use either of the following legal defenses to beat the charges:
You Didn’t Know about the Restraining Order
Your attorney can argue that you were not told of the protective order either by the police, in the court, or was not served with the court order. It can be because a wrong address was written on the court order, or an incorrect individual was served.
You Were Falsely Accused
An alleged victim could argue that you broke the stay-away order by surveillance or stalking. The victim requires corroborating testimony or evidence, or the judge might feel that there isn't adequate evidence of a violation of the law.
It is not uncommon for the alleged victim to falsely accuse the defendant in cases involving custody and family battles.
It’s Not Possible to Comply with the Protective Order
Sometimes it is not possible to adhere to the terms of a restraining order as a result of circumstances that are beyond your control.
A perfect example is when the order terms require you to stay away from the alleged victim by a specific distance. If the victim resides along the only access road, you can't obey. Your defense lawyer should be able to work for the conditions to be reviewed.
You Did Not Violate the Order Intentionally
Lack of intent is a valid legal defense. An example could be when you accidentally bump into the victim at the movies, in a hospital, or supermarket.
You should leave the scene immediately since further presence could be a violation.
If the protected person contacts you through a phone call or any means, even to discuss your dispute or reconcile, you should not adhere to their request. Contact with the victim should only be by the court terminating the protective order.
The Court Order was Illegal
For you to be found guilty of the violation of a restraining order, the prosecutor should prove the order was issued per the law.
An order issued based on misleading facts becomes null. If the court issued a stay-away order that did not have jurisdiction, that order is invalidated. If this is established during a trial, you cannot be bound by the order.
Are There Crimes That are Prosecuted In Place of or Alongside Violation of Restraining Order?
Here are related offenses to Penal Code 273.6 PC:
Domestic Violence (PC 273.5)
Just like PC 273.6, domestic violence (DV) law pertains to:
- Current or former spouses
- A person who you've lived with or currently living with
- Current or former girlfriend or boyfriend
- Your child's other parent
Per the domestic violence law, it is illegal for an individual to threaten to injure or harm their intimate partner.
Domestic violence charges include a domestic battery (PC 243e1) and inflicting corporal injury on an intimate partner (PC 273.5).
Violation of Penal Code Section 646.9 Stalking Law includes:
- Making numerous calls,
- Sending text messages or emails incessantly,
- Posting recurring messages on social media platforms,
- Sending unwanted messages or gifts to a person,
- Always going where the alleged victim works, and engaging in recreational activities, or
- Engaging in threatening or annoying conduct.
If the conduct gets to the degree that the alleged victim reasonably fears for his/her life, it is stalking.
It is a California wobbler. A California misdemeanor is punishable by a fine of one thousand dollars and a year in county jail. If charged with a felony, you risk facing ten thousand dollars in fines and a three-year sentence in California state prison.
If a defendant stalks an individual while under a restraining order, it's prosecuted as a felony that attracts four years in state prison.
PC 368 makes it an offense to exploit financially or physically, emotionally abuse, or neglect a person older than sixty-five.
It’s a wobbler. A felony carries four-year imprisonment. A misdemeanor subjects you to a fine of one thousand dollars and a year in jail.
Criminal Threats (PC 422)
Violation of PC 422 happens when a defendant threatens to injure a person, and the alleged victim has reasonable fears that you can execute the threats and implement it immediately. It is considered as a wobbler that carries a maximum of three (3) years in California state prison.
Contempt of Court
Per PC 166, it is illegal for you to:
- Behave in a manner which is
- Rude to a court process
Violation of PC 166 could be:
- Being belligerent or loud in court
- Refusing to be sworn as a witness in a trial
PC 594 occurs when you intentionally do either of the below:
- Deface another person's asset with written material or graffiti
- Damage the property
- Destroy the asset
The offense is either a felony, an infraction, or misdemeanor depending mainly on your criminal record and the destroyed asset's value.
Can You Expunge a Violation of a Restraining Order Conviction?
Expungement is a criminal record sealing process per Penal Code 1203.4 PC. After the expungement, members of the general public cannot access your conviction. As a result, you can indicate that you have never been sentenced for an offense in all rental applications or employment applications. However, you have to reveal the conviction alongside the fact that it was sealed if:
- You are running for an elected office.
- If you are applying for a state professional license
- If applying for a license with the State Lottery Commission
It is worth noting that expungement will not restore your gun rights. You should file a petition with the court to be considered for record sealing. You can file the petition in person or using your lawyer.
Then the court can either:
- Set aside the guilty verdict if you've been found guilty after a plea of not guilty, or
- Allow you to withdraw your no contest or guilty plea and enter a plea of not guilty.
In any case, the court will dismiss any allegations. Then you’ll be released from limitations and penalties arising from the crime.
How to Help Your Defense Attorney Win the Case
While your attorney should advise you about whether to testify at trial, engage in plea bargain negotiations, or waive a jury trial, these decisions belong to you. However, to make the best decision, it is wise that you communicate with the defense lawyer about your defense and goals.
The legal expert decides:
- The theory and theme of your case
- Whether to reach out to witnesses
- Which witnesses to involve
- What evidence to offer
You must be involved in every phase. Often issues arise when the client fails to be involved in their case.
You might be aware of the information that neither the police nor prosecutors have concerning the crime scene, conduct that constitutes the crime, and witnesses. Your attorney must have these details to decide whether it can be used to your advantage. If you are dishonest or withholds information, it affects the lawyer's capacity to develop the best defense.
Sometimes either the defendant or their family member is involved in the case. The legal expert decides whether to interview witnesses and what questions to ask. Also, the attorney knows what evidence to present in court and what objections they will make. The prosecutor's burden is to prove your case, and the last thing your attorney should do is establish the prosecutor's case.
Sometimes defendants have misconceptions about the judicial system, don't understand the role of their defense attorney, or lack formal education. In these scenarios, the attorney's responsibility is to tell the defendant why they are making the decision or why the defendant's suggestion will not favor them.
Find a Experienced Criminal Attorney Near Me
Violating a restraining order can have severe consequences because you are charged with disobeying a court order. In California, a restraining order violation is a misdemeanor that carries fines and incarceration. It is essential to hire a lawyer who can fight for your rights when facing charges of violation of a restraining order. Contact the Darwish Law at 714-887-4810 to speak to one of our local Santa Ana domestic violence defense attorneys.