Restraining orders arise in many legal battles involving families, such as divorce. These orders are protective legal measures put in place by the courts to stop people from assaulting, harassing, or otherwise mistreating others. A judge can issue a restraining order, and if the accused violates it, they could be deemed to be in contempt of the court and be subjected to criminal penalties like jail time and fines, and civil consequences.
A professional criminal defense lawyer could be able to present a variety of legal arguments to contest the alleged charges. If you've been charged with disobeying a restraining order in Santa Ana, you can seek the assistance of the California Criminal Lawyer Group.
Understanding Restraining Orders Under California Law
Restraining orders are often referred to as protective orders. They are intended to restrict communication between the victim and the alleged perpetrator. This court order protects the victim from further harassment, stalking, physical threats, and domestic abuse. Given the alleged perpetrator's actions, the victim should demonstrate that they are in imminent danger or have good reason to be afraid.
According to California PC 273.6, infringing upon a restraining or protective order is a crime. When someone disobeys a court order, it becomes a domestic violence-related crime. These can be either civil restraining orders, sometimes temporary restraining orders, or protective orders granted by a criminal court.
A misdemeanor offense under California PC 273.6 would attract harsh consequences based on the circumstances. Courts issue protective and restraining orders to protect victims from danger or other actions like harassment, stalking, threats, or physical abuse.
The "restrained" individual is not allowed to contact the "protected" individual, including but not limited to phone calls, emails, texts, social media messages, or in-person meetings. California PC 273.6 enlists several different ways that a person can disobey protective or restraining orders.
For instance, despite protective orders prohibiting communication with a current or former partner, the individual under "restraint" still texts the partner. Another illustration is when a restraining order bans a person from threatening or abusing their partner, but they nonetheless make threats to do so. In other situations, the main reason for the restraining order is stalking. This often includes actions like persistently stalking a person or simply hanging outside of their workplace or residence.
Types of Restraining Orders
A criminal court can issue several different kinds of restraining orders. Violations of these orders could lead to the penalties listed under California PC 273.6.
Domestic violence restraining orders are intended to protect victims from their intimate partner's abusive behavior. Civil harassment protective orders are issued to shield victims from individuals who are not their intimate partners, like a neighbor.
A dependent adult or elder abuse protective order is given to protect vulnerable adults with disabilities between 18 and 64 years and senior citizens aged 65 years or older, from any form of emotional, financial, or physical abuse.
Workplace violence protective orders are issued to safeguard employees from violence or threats while at work. According to California PC 166, violating the provisions of any of the court orders above would lead to charges of being in contempt of court. Let's go over the different types of protection orders.
Emergency Protective Order
When police respond to a domestic violence event, they have the right to contact a magistrate and request an emergency protective order, which forbids the alleged perpetrator from contacting the victim in any way.
If the alleged perpetrator is still present, the law enforcement officers will inform them that the restraining order goes into effect immediately and lasts for seven days. The purported victim should appear in court to apply for a temporary restraining order after seven days have lapsed.
Temporary Restraining Order
Individuals can petition the court for a temporary restraining order, valid for three weeks, once an EPO lapses or if they are the victim of abuse or harassment.
When the court issues a TRO, you should declare that you're a victim of the following:
- Harassment of any kind or credible violent threats.
- Someone's actions that cause you to experience significant emotional distress.
- Annoying behavior with no legitimate reason.
Harassment refers to threats that are fairly credible or acts of violence. The court sets a hearing to decide whether to grant a permanent restraining order (PRO) before the temporary restraining order becomes invalid.
Permanent Restraining Order
An offender should show up for court proceedings for the victim to get a permanent restraining order. The magistrate will consider the arguments presented by both parties before making a ruling.
The defendant's actions should also be demonstrated to the court to have affected the victim physically or emotionally. If the court grants a permanent restraining order (PRO), they would decide what limits to place on the perpetrator and how long the restraining order would remain in effect.
A permanent restraining order can stay valid for a maximum of three years and it can be renewed if necessary. The following are common restrictions placed on the accused person:
- No interaction with the victim in any way.
- Vacate the property.
- Keep a certain distance from the victim.
- Pay the victim's legal costs or restitution.
- Surrender any firearms to law enforcement and are forbidden from purchasing or carrying any firearm.
Any defendant who wants to contest the restraining order should speak with a lawyer with expertise in fighting the charges.
Levels of Restraining Orders
Criminal restraining orders come in various levels with different limitations. These include the following:
- Full stay-away order.
- Peaceful contact order.
Full stay-away order, also known as a no-contact order, bars the perpetrator from contacting or being close to the claimed victim. It is considered the most stringent type of restraining order.
There are several reasons why less stringent restraining orders are given. For instance, a less-than-full stay-away order is granted when a spouse has joint custody of minor children. A full stay-away would make it difficult for the couple to co-parent or exchange minor children.
The court would often abide by visitation and custody orders imposed by a family court of law in such circumstances since they're more acquainted with the specific family issues. The complainant could file a request for a less restrictive protective order, also referred to as a "peaceful contact order," in court.
Restraining orders that allow for peaceful contact can enable the alleged perpetrator to remain with or communicate with the alleged victim via telephone or other devices, so long as the interaction is peaceful and free from threats, violence, intimidation, or stalking.
Elements of Violating a Restraining Order
An offender can be prosecuted with contempt of court under California PC 273.6 for disobeying a restraining order if they don't adhere to protective or restraining order rules.
The prosecution should establish each of the factors of the offense mentioned in CALCRIM 2701 Jury Instructions for the accused to be found guilty.
- The court issued a legitimate restraining order against the defendant.
- The defendant was aware of the restraining order.
- Defendant deliberately and willingly violated the restraining order.
It's important to note that not all restraining orders are legitimate. For example, it’s possible that the court lacked the necessary jurisdiction to grant the restraining order. The accused can receive a restraining order from the court simply by being informed in court. Also, law enforcement officers can inform individuals of the order's provisions. However, evidence of service isn't necessary.
The prosecutors should demonstrate that the defendant knew about the restraining order in question before they could hold them responsible for violating the terms. The court should serve an accused person a "notice" and a chance to review the restraining order. Finally, the prosecution needs to demonstrate that the accused willfully violated the conditions of the restraining order by, for example, texting the purported victim while it was against the law.
Penalties for Violating a Restraining Order
A restraining order violation under California PC 273.6 can lead to severe consequences. Penalties for the misdemeanor offense include the following:
- Serving a maximum of one year behind bars.
- A hefty cash fine of no more than $1,000.
The offense can be tried as a "wobbler" crime if the accused has a prior conviction or the current offense includes a violent crime. Penalties for a felony conviction include:
- An imprisonment sentence of not more than three years.
- Hefty cash fines not exceeding $10,000.
If the court rules that the accused violated the restraining order, the court will promptly remand the accused person to custody. A breach of the restraining order is a different criminal charge that is punishable by jail time and penalties even after the dispute has been settled.
The court could issue any punishment up to the maximum allowed for the underlying charge of violating a protective order, which is also regarded as a probation violation.
Restriction on Firearm Rights
Owning, possessing, or getting a firearm is prohibited if you're the subject of an active restraining order. Also, you need to surrender any weapons to law enforcement or dispose of them. You could be charged with a new crime if you continue to possess any firearms. If you buy a firearm or try to purchase one, you could spend not more than three years behind bars after being found guilty of a felony.
Immigration Status
Individuals entering the country with a green card as well as those getting US citizenship by naturalization, are subject to tight eligibility restrictions. The status of an immigrant is determined by several things, such as their conduct.
Suppose immigrants are found guilty of violating the conditions of their restraining orders or have domestic violence charges brought against them. In that case, there is little a restraining order attorney can do to appeal the decision. An immigrant risks being deported if they are found guilty of an act of moral turpitude, like domestic violence.
Background Checks and Restraining Orders
Since restraining orders are considered civil issues, they often don't appear on a person's background check for criminal activity. However, if you disobey a restraining order, it will show up on your criminal background check.
Effect on Probation Term
When a person is on probation, they need to take proper care and follow the law. It won't matter if they have a restraining order or not. Nonetheless, the offenses frequently linked to them could jeopardize their probation status.
The defendant could be charged with a crime if they disregard a restraining order. A probation violation will occur regardless of a defendant's probation conditions if they commit a felony.
Restriction Terms For a Restraining Order
A restraining order can include a variety of provisions.
Personal Behavior
This involves certain habits and deeds that are no longer acceptable. That implies the restrained individual is forbidden from contacting the purported victim, threatening or physically harming them, disrupting them, or causing any property damage.
Stay-Away Orders
This specifies the required distance from the victim, usually between 50 and 100 feet.
Residence Exclusion
This is also referred to as "move-out" or "kick-out" orders since the individual listed in the restraining order is legally compelled to leave the shared residence with the individual obtaining the order. These are only available in dependent adults, elder abuse, or domestic violence restraining orders.
Legal Defenses For Restraining Order Charges
If you're facing charges of infringing a restraining order and violating California PC 273.6, a criminal defense attorney can employ several strategies to achieve the best possible outcome. A lawyer should review the specifics of the alleged infringement to decide the best course of action.
The most common legal defenses include the following:
The Defendant Was Not Aware of The Restraining Order
A criminal defense attorney could argue that the defendant was unaware of the restraining order. The defendant might not have been notified about the court order and was unaware it existed. Remember that the prosecution should demonstrate that the accused received the restraining order legitimately and was aware of its existence.
The Defendant Didn't Intend To Violate the Restraining Order
A defense attorney could argue that the defendant didn't intentionally disobey the restraining order. For example, if the accused happened to run into the alleged victim in a supermarket while shopping, but there wasn't any intention to infringe on the no-contact conditions. In other situations, it's possible that the victim made the first interaction to mend their relationship.
The Defendant Was Falsely Accused
A criminal defense attorney can demonstrate how an ex-spouse trying to gain an edge in a child custody case falsely accused the defendant of breaking the restraining order. If you have been accused of breaking a restraining order under PC 273.6 in Santa Ana, you can seek legal counsel to discuss your alternatives.
The Victim Made the First Contact
It should be noted that the victim, whom the restraining order designates as the protected person, won't face any restrictions when trying to get in touch with or communicate with the subject of the court order. Only the restrained person will be arrested and charged with breaking the terms of the restraining order.
Despite this, the protected person shouldn't contact the defendant because if they do, even though they initiated contact, they could face legal troubles. The attempt by the protected individual to contact the accused could be used as evidence in subsequent court cases. Therefore, the defendant can contend that the victim who is being protected doesn't fear them, and thus the restraining order isn't required.
Offenses Related to a Restraining Order Violation
Violations of PC 273.6 are often linked to crimes involving domestic violence, such as but not limited to the following.
Domestic Battery (PC 243e1)
Domestic battery occurs when a defendant uses force or violence on their intimate partner. The accused can be found guilty even if they don't inflict any physical harm. This unlawful act is regarded as a misdemeanor crime. If found guilty, a person could be sentenced to a year in jail as well as a hefty cash fine not exceeding $2,000.
Corporal Injury to a Cohabitant or Spouse (PC 273.5)
Any corporal injury that results in even a minor physical bodily injury to an intimate partner is considered illegal under California PC 273.5. This violation is regarded as a wobbler crime. If found guilty of a misdemeanor, the maximum punishment is a $6,000 fine and not more than a year behind bars. For a first offense, a felony charge results in a maximum sentence of 4 years in prison with a hefty fine not exceeding $6,000. If it's a person's second or subsequent violation, they will be subject to harsher penalties.
Elder Abuse (PC 368)
If an accused person takes advantage of an elder's financial situation, abuses them physically or emotionally, puts them in danger, or neglects them, they would be found guilty of elder abuse. This violation is treated as a wobbler offense. A misdemeanor is punishable by victim restitution, a $6,000 fine, and not more than one year in jail.
If you are found guilty of a felony, you could be sentenced to 4 years behind bars, a $10,000 cash fine, and victim restitution. Additionally, if the alleged victim suffered serious bodily harm and was a felony, you could be sentenced to another 7 years behind bars.
Stalking (PC 646.9)
Stalking is defined under California PC 646.9 as harassing, threatening, or following another individual to the point that they get scared for their safety. If you are found stalking another person, you would be charged with wobbler. A misdemeanor charge is penalized by one year behind bars, a $1,000 fine, and summary probation.
If convicted of a felony, you'll face an imprisonment sentence not exceeding 5 years, felony probation, and a $1,000 fine. Stalking someone in breach of an existing restraining order is classified as a felony crime.
Witness Intimidation (PC 136.1)
Attempting to block a witness or victim from reporting criminal activity, testifying about the crime, or otherwise collaborating with the police is a violation under California PC 136.1. This offense is treated as a wobbler crime. A misdemeanor conviction attracts not more than a one-year jail term and a $1,000 fine. If found guilty of a felony crime, witness intimidation is punishable by a $10,000 fine and not more than 4 years in prison.
FAQs Regarding Restraining Orders
The following are a few of the most common queries regarding California restraining orders.
What Is The Distinction Between Civil Harassment Restraining Orders and Domestic Violence Restraining Orders?
Civil harassment restraining order is applicable when the individuals do not have an intimate connection. Examples of common types of civil harassment restraining orders include those that relate to roommates and those that bind workers. Civil harassment restraining orders can also prevent unwelcome attention from unknown persons.
Restraining orders against domestic violence are applicable where there is or has been an intimate relationship between the protected party and the individual under the restraining order. This includes current and former spouses, romantic partners, former intimates, husbands and wives, and anyone who has lived with another person in an intimate relationship. Blood relatives could also request a domestic violence restraining order.
Can Magistrates Order Restrained Individuals To Receive Treatment or Attend Classes?
Yes. The court can order those restrained to do anything, including signing up for a 52-week-long batterer's intervention program or taking anger management courses for a short period. If there were any minors present during the incident that resulted in the restraining order, parenting classes could be necessary. These courses can be mandated if the court issuing the restraining order deems it necessary for the individual under restraint.
Can I Appeal the Dismissal of a Restraining Order?
The 15-day hearing is the best chance of getting a restraining order lifted. Therefore, you should refrain from complicating the issues before that hearing day. If the judge renders the restraining order permanent, the petitioner could ask for the order to be removed or the court can withdraw it.
Find a Santa Ana Criminal Defense Lawyer Near Me
If you or a loved one is facing charges of infringing on a restraining order or committing a domestic violence crime in Santa Ana, you can contact us at California Criminal Lawyer Group. Our attorneys have represented many individuals facing domestic violence charges in Santa Ana courts and have litigated restraining order disputes on our client’s behalf. Contact us today at 714-844-4151 to speak with one of our lawyers.
