Restraining Order

What is a Restraining Order?

A court may issue a restraining order, which is sometimes referred to as a protective order, to protect a spouse or partner from harmful communication or contact. Restraining orders are designed to protect a spouse or partner from various forms of domestic abuse, including harassment, physical injury, stalking, and threats. Specifically, domestic violence restraining orders are designed to protect an individual from harmful contact from a person who they shared an “intimate” partnership with.

An “intimate partner” may include: a spouse or former spouse, a person you cohabitate with your or used to cohabitate with, an ex-girlfriend or boyfriend, and may even include someone you dated.

In short, a protective order will usually name the person who is restricted from acting in a particular way. The exact language in the order will outline the type of conducted that is restricted. Most protective orders will generally order the defendant from refraining from any contact with the person who the court is trying to protect. “Contact” definitely includes person-to-person contact. But it also includes refraining from calling, texting, emailing, social media messaging, and following the protected person.

Varying Degrees of Protection by a Restraining Order

The type of restraining order can dictate what level of protection the alleged victim receives. There are three main types of restraining orders: Emergency Protective Orders (EPO), Temporary Restraining Orders (TROs), and Permanent Protective Orders (PPOs).

What is an Emergency Protective Order (EPO)?

Emergency Protective Orders, as you can guess, are used in emergency situations. Therefore, it is no surprise that Emergency Protective Orders are commonly issued in domestic violence situations. In fact, emergency protective orders are regularly requested by police officers after responding to a domestic violence situation. If the police believe that the alleged victim might be at risk of further harm, then they will ask the judge to place an emergency protective order on you. Some Southern California counties maintain a night judge or “on call” judge who can quickly review a request and issue the order.

If an Emergency Protective Order is issued, the police officer will then tell the offender, if the are present and available, that a restraining order has been issued against them. An Emergency Protective Order goes into effect immediately and can last up to 7 days. If the police or the victim wish to keep a protective order in place, they will then have to go to court and request either a temporary restraining order or a permanent injunction order.

What is a Temporary Restraining Order (TRO)?

Unlike an Emergency Protective Order, which can only last up to 7 days, Temporary Restraining Orders can last up to 3 weeks. They are commonly issued after an Emergency Protective Order expires. However, an alleged victim can request the court to issue one if they feel they feel you are subjecting them to “harassment.”

For purposes of the laws that govern restraining orders, harassment can mean any of the following: violence, the threat of violence, distressing conduct, or even annoying conduct.

Once a Temporary Restraining Order’s terminates, the judge will conduct a court session to rule on whether or not a permanent restraining order should be issued.

What is a Permanent Restraining Order (PRO)?

A Permanent Restraining Order is the strongest type of restraining order. Generally, a Permanent Restraining Order is issued after a Temporary Restraining Order or Emergency Protective Order expires. To be issued, a hearing must be conducted – where the judge will hear arguments from both you and the alleged victim. Your domestic violence attorney can make the arguments on your behalf.

Once a judge decides to issue a Permanent Restraining Order, they will determine which type of provisions or restrictions to place in the order and how long the order should last. A Permanent Restraining Order must clearly outline its provisions and specifically describe what behavior is prohibited. If it does not, then its possible those particular provisions are invalid.

Permanent Restraining Orders are not permanent, per say, but they do last a very long time. They can prohibit your conduct for up to 3 years – depending on what is specifically noted in the language of your order.

Some type of conduct that a Permanent Restraining Order may restrict or require, include, but are not limited to the following: moving to a house and finding a new home, not having any contact with the alleged victim (such as phone calls, emails, social media, person-to-person, etc.), keep a set distance from the alleged victim, hand over guns to the police, and not possess or purchase any weapons.

What happens if you violate a California Restraining Order?

The laws that govern the violation of a California restraining order are codified in Penal Code 273.6 PC. You can be charged with a Penal Code 273.6 PC violation if you do not follow the restrictions and provisions of a restraining order.

However, before you can be convicted of any domestic violence violation, the prosecutor must prove all the particular elements of the crime you are being charged with. An element is essentially a fact pertaining to the crime. These elements must all be proven beyond a reasonable doubt. If even one element cannot be proven, then you cannot be convicted of that particular domestic violence crime.

The elements for Penal Code 273.6 PC violating a restraining order are:

  • The Court issued a restraining order against you.
  • You had knowledge of the restraining order.
  • You intentionally did not comply with the terms of the restraining order.

Let us examine each of the elements of Penal Code 273.6 PC violating a restraining order in more detail, so that you can have a better understanding of your rights and liabilities.

The Court Issues a Restraining Order Against You.

If you have a restraining order against you, then you absolutely must follow it.

But in some situations, the restraining order issued against you might be invalid.

This could occur if the court that issues the restraining order did not have “jurisdiction” or the legal authority to take such an action. Also, it is possible a judge might not have the law on their side when they issued a restraining order. If its found that a restraining order was illegal, you will not be bound by its terms and any Penal Code 273.6 PC charge should be dropped. You cannot be held in contempt of court if the order you are supposed to be following was invalid. Even though it’s possible that a restraining order might be invalid, it’s important that you contact a domestic violence attorney before breaking its provisions. It is a much simpler and smoother process to challenge a restraining order before it is violated than afterwards.

You Knew about the Restraining Order Against You.

The prosecutor must show that you had knowledge of the restraining order before you can be convicted of a Penal Code 273.6 PC violation. Remember, the prosecutor has to prove each and every single element of Penal Code 273.6 PC before you can be convicted in a California court trial.

California has particular laws meant to protect a person who is required to follow a restraining order. Before you can be deemed knowledgeable about a particular restraining order, you must have had “notice.” You may receive notice in any number of ways. You will be deemed to have “notice” of a restraining order if a judge informs you verbally while you are present in court. A police officer, or a third party can inform you of the restraining order by personally serving you with the restraining order. In some situations, California law will consider that you had “notice” if a police officer verbally informed you of the restraining order.

You must have intentionally violated the terms or conditions of the restraining order.

Before you can be convicted of a Penal Code 273.6 PC violation, you must have had knowledge of the restraining order and intentionally violated it. In some ways this makes sense, because you can’t intentionally violate something if you don’t know about it.

Especially if you live in the same area as the alleged victim, it is possible you will bump into them and accidentally violate the restraining order. If this happens, then you will have to be able to prove to the court that you quickly left the area and did not try to maintain any contact with them once the alleged victim saw you.

What are the Legal Defenses to a Penal Code 273.6 PC accusation?

The potential penalties for a Penal Code 273.6 PC conviction can be quite severe. Fortunately, there are many legal defenses available to fight a Penal Code 273.6 PC charge. An experienced and diligent domestic violence attorney can review the specific circumstances of your case and develop an effective legal strategy that utilizes all possible legal defenses. Below is a list of just some of the legal defenses available to fight a Penal Code 273.6 PC violation.

You did not have knowledge of the restraining order.

As discussed above, a prosecutor must prove all of the elements of Penal Code 273.6 PC before you can be convicted of this domestic violence crime. Therefore, if you did not have knowledge of the restraining order, then you cannot be convicted of a Penal Code 273.6 PC violation. Obviously, this defense will not be available if you were in court at the time the judge issued the restraining order. The same goes if a police officer told you about the restraining order at the scene of an incident.

However, if you can show that you did not receive “notice” of the restraining order, then you can avoid a Penal Code 273.6 PC conviction. This might be true in a situation where a restraining order was delivered to your old address or given to another person with the same name as yours. In these situations, it is possible to show that you did not have knowledge of the restraining order and therefore should not be convicted of a Penal Code 273.6 PC violation.

You did not intentionally violate the restraining order.

Even if you had knowledge about a restraining order, you can avoid a Penal Code 273.6 PC violation if it can be shown that you did not intentionally violate it. This defense is most commonly used when a defendant accidentally violates the terms or conditions of the restraining order. It is not uncommon for a defendant to accidentally run into the alleged victim, especially in domestic violence cases. People share families, neighborhoods, and friends so unless you’re really careful, you could run into the alleged victim. You could run into them just by going to the grocery store at the same time on the same day.

Importantly, you should remember that it does not matter if you had contact with the alleged victim because they invited you to do so. If the alleged victim asks you to meet up with them, and you do, then you are still in violation of the restraining order and liable under Penal Code 273.6 PC. The only person who can remove the restraining order is the judge. It does not matter if the alleged victim does not want the restraining order or feels that they no longer need protection. In these cases, you might honestly think that you are not “intentionally” violating the restraining order. However, you must follow the provisions of a restraining order until a judge rescinds it.

The same goes if you think a restraining order is unjust. You might think that you were given a restraining order because of a lie or because the police report did not accurately describe an incident. This does not matter for purposes of Penal Code 273.6 PC. You have to follow it even if you think it was unjustly handed it or risk being punished under Penal Code 273.6 PC.

You are falsely accused of violating the restraining order.

Remember, even if the alleged victim asks you to have contact with them, you can still be found guilty of violating Penal Code 273.6 PC. The judge is the only one who change the conditions of a restraining order. To be safe, follow the conditions of the restraining order to avoid any legal trouble.

You don’t want to fall into the unenviable situation of being set up by the alleged victim. Domestic violence situations are filled with emotions and it is not unusual for an alleged victim to set you up by asking you to meet them and then claim that you violated the restraining order. Perhaps, they are angry that you cheated on them. Or maybe they are trying to gain an advantage at an upcoming divorce or child custody hearing. Regardless of the reason, it’s important to follow the restraining order just to be on the safe side.

The alleged victim may not even invite you to meet them. They might claim that you called them and then hung up the phone. Or they might claim that you are stalking them. These types of claims do not require any physical proof so its not uncommon for alleged victims to make them up to the police and to the courts.

Fortunately, an experienced domestic violence attorney has a variety of tools available to bring the truth to light in these situations. Your domestic violence attorney can hire a private investigator to get witness statements. Your domestic violence can subpoena the phone companies to get text and phone records to show that you followed the restraining order and to show the alleged victim is lying. They can help you build the evidentiary record with admissible evidence proving your alibi when the alleged victim claimed you violated the restraining order. The key is contacting a domestic violence attorney early. This way they can bring in new evidence into the record so the court doesn’t rely on biased victim statements or police reports. By bringing in evidence on your behalf, a smart domestic violence attorney can help you fight a Penal Code 273.6 PC accusation.

What are the potential penalties for violating Penal Code 273.6 PC violating a restraining order?

The penalties for violating Penal Code 273.6 PC can be severe. It is important to know the potential punishments so you have an idea what liabilities exist for violating Penal Code 273.6 PC.

California classifies a Penal Code 273.6 PC violating a restraining order as a misdemeanor. If convicted, you receive up to 1 year in county jail, up to $1,000 in fines, and informal probation.

The judge could include, under the terms of the probation, the following mandatory requirements: counseling, anger management classes, alcoholic anonymous classes, narcotics classes, etc. In addition, the judge could order you to pay money to a women’s shelter and pay restitution to the victim to compensate them for any reasonable counseling or medical bills that might have been required due to the violation of the restraining order.

Subsequent Convictions

If you convicted of violating Penal Code 273.6 PC for a second time, within the last seven years, and the violation involves either a violent act or the threat of violence, you could be charged with a misdemeanor but its also possible you could be charged with a felony. You will be subject to the “wobbler” conditions of Penal Code 273.6 PC. A wobbler crime is one where a prosecutor has the discretion to charge you with either a misdemeanor or a felony. This decision is based on the specific circumstances of the crime and your criminal history. The more violent the violation the more likely you will be charged with a Penal Code 273.6 PC felony.

In this case, the misdemeanor will be punishable with up to 1 year in county jail and/or up to $1,000 in fines. However, a Penal Code 273.6 PC felony conviction could be punished by any of the following: up to 3 years in a California state prison, up to $10,000 in fines, and formal probation. If the victim suffers a physical injury due to your violent act, then by law, the judge is required to send you to county jail for at least 30 days.

Potential Firearm Punishments

If you are subject to a restraining order, it is against California law to have, hold, or buy firearms while it is in effect. You will see this requirement in the language of the restraining order. In addition, there will be provisions requiring you to give up your weapons to the police or sell them to a registered gun store. If you do not follow any of these requirements, then you could be punished with a misdemeanor and face up to $1,000 in fines and/or up to 1 year in county jail.

If you try to acquire a gun while a restraining order is in effect, then you could be subject to the wobbler conditions and receive either a misdemeanor or a felony. If you receive a Penal Code 273.6 PC misdemeanor, the punishments will be the same as described above. However, if you receive a Penal Code 273.6 PC felony, then you could receive up to 3 years in a California state prison.

How to proceed if you are charged with violating a restraining order?

A Penal Code 273.6 PC conviction can seriously harm your reputation and put you at risk for harsher criminal punishments in the future. For this reason, it is important to contact a domestic violence attorney to fight Penal Code 273.6 PC charges.

We invite you to call Domestic Violence Attorney. We will provide you with a free legal consultation where we will discuss with you the particular circumstances of the case with care and confidentiality.

Domestic Violence Attorney can be reached at 424-276-6060.

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