Domestic violence restraining orders are court-issued instructions used to protect victims from the risk of being harassed, physically abused, stalked, or intimidated. If you are served with such a mandate, it means you are legally forbidden from making any kind of contact with an alleged victim. You must not communicate directly via emails, text, phone calls, or social media messages. You must also refrain from initiating indirect contact through a third party. Most importantly, the restraining order requires you to maintain physical distance from an alleged victim.
If you face charges for violating a domestic violence restraining order in Santa Ana, turn to the California Criminal Lawyer Group. We can help you fight the charges and hopefully reduce their impact on your future.
Violating a restraining order is a crime under California Penal Code 273.6. The offense carries misdemeanor or felony charges depending on the facts of a case. You risk spending up to 3 years in jail if a violation involves acts of violence or if you have faced charges for violating a restraining order in the past. Seeking legal counsel and representation can maximize your chances of enjoying a favorable outcome.
Restraining Order Defined
As aforementioned, the court issues restraining orders to protect alleged victims from credible threats, harassment, and physical abuse. There are different types of domestic violence restraining orders, and each court-issued mandate dictates the levels of protection awarded to an alleged victim.
You could face charges under Penal Code Section 273.6 if you engage in any of the behaviors prohibited by a restraining order. The mandate could also instruct you to:
- Relocate from the home you share with a victim
- Surrender your gun and ammunition
- Pay child or spousal support
- Adhere to child custody or visitation orders
- Refrain from contacting or going close to your kids, relatives, or other people within your household
Anyone with whom you share certain intimate relationships can file a domestic violence restraining order. They can do this if they are abused, threatened, or are intimidated by your conduct. Some of the individuals legally entitled to filing domestic violence restraining orders include:
- A married, separated, or divorced spouse
- A registered domestic partner
- Someone you are dating or used to date
- Someone with whom you have sired a child
- Anyone you live with or used to live with
- Relatives by blood such as siblings, uncles, aunties, parents, grandparents, or cousins
- Relatives by law including an adopted child, mother-in-law, brother-in-law, stepparent, etc.
It is essential to understand that a victim doesn’t necessarily need to file a restraining order in person. Someone else who seeks to protect them from abuse or harassment can file for a restraining order on their behalf.
Types of Restraining Orders
There are three main types of domestic violence restraining orders. Violating any of the court-issued mandates can lead to penalties as described under Penal Code 273.6.
Let’s review the different types of domestic violence restraining orders:
Emergency Protective Order (EPO)
Anytime the police respond to a domestic violence incident, victims can request an emergency protective order. A judge issues the order immediately prohibiting an alleged abuser from contacting their victim. EPOs last for 7 days, allowing victims to file for more permanent restraining orders if necessary.
Temporary Restraining Order (TRO)
An emergency protective order can help protect victims from immediate harm from an alleged abuser. However, they are short-lived, making it necessary for victims to go to court and file for a temporary restraining order. TROs last for about three weeks and victims can return to court before they expire and file for a permanent restraining order.
Permanent Restraining Order (PRO)
Again, victims can file for domestic violence permanent restraining orders. In this case, they must attend a court hearing where a judge will listen to arguments from both sides. Often, alleged victims must present some form of solid evidence before a judge can issue a PRO.
PROs are long-standing and can remain valid for up to 3 years. Moreover, a victim can return to court and request for an extension of a PRO.
If you are served with a permanent restraining order, you must:
- Refrain from contacting a victim directly or indirectly
- Relocate from the residence you share with a victim
- Maintain specified distance from the victim as stated in your restraining order
- Surrender your firearms and your gun ownership rights
If you are issued with an unfair restraining order, the best you can do is talk to an attorney immediately. Ignoring the existence of the order is often a huge mistake with grave repercussions. Once you receive the court-issued instructions, go through them to understand its terms. It is also necessary to abide by it, at least until an attorney helps you to revoke the orders.
Failure to adhere to the terms of a domestic violence restraining order can lead to arrest and criminal penalties. On the other hand, failure to respond to a TRO notice strips you of the right to defend yourself. A skilled attorney can help you protect your rights and best interests before receiving a permanent restraining order. Note that a PRO not only has more restrictions but will also end up in your criminal record.
Domestic Violence Restraining Orders; Levels of Protection Awarded To Victims
Alleged victims receive certain levels of protection through their restraining orders. Typically, a judge will consider the facts of a case before dictating the terms of an order. Some of the standard levels of protection include:
Full Stay-Away Orders
Full stay-away orders ensure that you cut all physical ties with a victim. You should not contact them, go close to them or initiate communication through a third party. With this type of order, it may be challenging for an alleged abuser to access the children.
Peaceful Contact Order
Peaceful contact orders are less restrictive. In this case, both the alleged abuser and victim can co-parent. While it’s often unlikely for the two individuals at loggerheads to continue living within the same property, an alleged abuser can initiate direct or indirect contact. The interactions are legal as long as they don’t involve intimidation, violence, stalking, or threats.
Penal Code 273.6 Elements
Domestic violence restraining orders are also referred to as protective orders or stay-away orders. The type of order filed by an alleged victim may play a significant role in dictating the list of conducts a defendant must not engage in. violating a restraining order is a crime punishable under Penal Code Section 273.6.
Alleged abusers must adhere to all the listed rules to the latter. Violating a single direction may attract legal trouble, allowing an alleged victim to file criminal charges. The prosecution can only convict you if they can prove the following elements beyond a reasonable doubt:
- You received a court-issued restraining order that mandated you to stay away from an alleged victim and refrain from certain acts or conduct
- You knew about this court-issued order
- You were able to follow the order to the latter
- You intentionally violated any of the terms listed in the court order
One of the elements of violating Penal Code 273.6 is that you must have been aware of the court order. Note that the court will assume you read and understood the order as long as you received it and had the chance to go through it.
On the other hand, not all domestic violence restraining orders are valid. You don’t have a legal obligation to follow an order issued by a court that lacks proper jurisdiction. However, proof of service is not mandatory, and it’s enough that a judge informs you about the order in court or a law enforcement officer serves you with the order and tells you of its terms.
Penalties for Violating Penal Code Section 273.6
Domestic violence restraining orders are civil court orders. However, violating the terms of an order attracts criminal penalties.
Typically, a first-time offense is a misdemeanor that attracts the following punishment:
- Imprisonment for up to 1 year
- A fine not exceeding $1,000
In most cases, a judge will also impose mandatory domestic abuse or anger management classes as part of the penalty.
Violating Penal Code Section 273.6 attracts is a wobbler offense under the following circumstances:
- A defendant has a prior conviction for violating a protective order
- The conviction in question is not more than 7 years old
- An offense involved violence or the threat of violence
When an offense attracts felony charges, the punishment may include:
- Jail time for up to 3 years
- A fine not exceeding $10,000
If an alleged victim files a complaint at the police station, the authorities can arrest you without a warrant. It is also imperative to understand that the bond involved following an arrest could go as high as $15,000 if charged with a misdemeanor. A judge has the discretion of setting a higher bond amount if you face felony charges. Remember that the court will seek to protect the victim while a case is underway. A higher bond is likely to discourage an alleged offender from violating the terms of release because they will not want to risk forfeiture of the entire bond amount.
Furthermore, a conviction for violating a restraining order can affect your gun rights. The court will strip you of the right to own or possess a firearm. Generally, you have to surrender your gun and ammunition and refrain from purchasing a new weapon. Violating gun restriction laws attracts a jail sentence of up to 1 year and a fine not exceeding $1,000.
What If An Alleged Victim Approaches You?
A restraining order affects both an alleged victim and the abuser. This can be tough, primarily when issued against people in an intimate relationship who have shared more good than bad days. Often, petitioners are happy to comply with the terms and conditions of a protective order. However, it is not foreign for the petitioner to initiate contact before a restraining order expires.
There are no legal repercussions for a petitioner who tries to reach out or visit your home while a protective order is still valid. Even so, the protected person cannot end the protective order without involving the court. This makes it crucial not to fall for the traps of anyone luring you into violating Penal Code Section 273.6.
So what should you do if a restraining order petitioner approaches you?
The intelligent thing to do is not to yield to the temptation of violating a valid order. It may be in your best interests not to say a word and instead walk away if they approach you, fail to respond to their texts, or hang up the phone when they call. If an alleged victim shows up at your home, politely close the door behind you. It’s always better to hold up to your end of the order, at least for the duration when it is valid.
Furthermore, you should be quick to remedy a situation in case of accidental contact. For instance, you may want to walk the other way if you bump into a petitioner in a public area such as a shopping mall. It is also best to hang up immediately when you realize you have misdialed your phone and attempted to call a petitioner.
Best Defenses for Fighting Penal Code Section 273.6 Violations
Violating a restraining order may be a misdemeanor, although it has far-reaching repercussions. For instance, a second offense is a wobbler offense commonly charged as a felony. It is in your best interests to enlist a skilled criminal defense attorney who can increase your chances of fighting the charges successfully.
Some of the defenses your lawyer may use include:
Lack of knowledge
One of the elements the prosecution must prove beyond a reasonable doubt is that you know about the existence of a restraining order. You may not have a case to answer if you lack knowledge about a protective order and its terms. This would also mean that you did not violate the court-issued instructions intentionally.
The proper defenses to use may highly depend on the specifics of your situation. For instance, lack of knowledge is a viable defense if you were not present during the issuing of the order. It could be that someone else was erroneously served.
Lack of Intent
Again, the prosecution must prove that you willfully or intentionally went against the terms of a restraining order. Sometimes, an alleged abuser may accidentally violate an order. It could be that you entered a restaurant and found the petitioner inside, or old habits got the best of you, and you misdialed the protected person’s number by mistake.
Generally, a protective order instructs you to stay at least 100 yards away from the protected person. A court cannot convict you if you run into an alleged victim by chance. However, this defense yields the best fruit when you attempt to remedy the situation with immediate effect.
For instance, you should turn the other way and leave the location if you bump into a protective order petitioner in a mall. Remember, they don’t have a case to answer if they initiate contact. However, attempting to say hi when you meet them accidentally may harm your case if you are arrested for violating Penal Code Section 273.6.
Inability to Follow the Restraining Order
Knowing about the existence of a protective order is one thing. Having the ability to follow the terms and conditions of the imposed terms is another. Sometimes, an order may contain conditions you cannot follow to the latter because of unavoidable circumstances.
For instance, one of the terms may stipulate that you should not get anywhere near the residence of a protected person. While this may seem like a reasonable term, you may violate it while driving through the main road near an alleged victim’s home. In this case, the court cannot convict you for violating a valid restraining order.
A reliable criminal defense attorney can fight to have the charges dismissed. Most importantly, the expert will request a revision of the terms of the order. This will ensure that you remain on the right side of the law.
Invalid restraining order
In some instances, fighting the validity of an order is the best way to have your charges dropped. As aforementioned, an order from a court that lacks jurisdiction cannot be deemed valid. An order may also not hold much water if issued based on falsified or misleading information. In this case, you have no obligation to follow its terms and conditions.
False Allegations
It is common for spouses to file restraining orders with the hopes of having the upper hand during a child custody case. Some spouses have malicious intentions and will not shy away from attempting a move that could leave you with a criminal record. That said, an alleged accused may fabricate a story insinuated that you violated a protective order by contacting them directly or indirectly.
Proving that the word of a protected person lacks credibility is not easy. You owe yourself the favor of hiring a skilled criminal defense team that can help bring the truth to light.
Penal Code Section 273.6; Related Offenses
Violating a restraining order is a stand-alone crime charged under PC 273.6. If you commit another crime while violating a protective order, you will face a different set of penalties if convicted of the offense.
Here are other offenses closely related to violating a restraining order:
Domestic Violence — Penal Code 13700
Under Penal Code 13700, it is a crime to intentionally or recklessly use force or threaten to use force against an intimate partner. Depending on how an incident unfolded, the charges may escalate into a domestic battery (Penal Code 243e1) or inflicting corporal injury on an intimate partner (Penal Code 273.5 PC) charge.
Domestic violence is a wobbler offense. If convicted of a felony, the penalty may be as follows:
- 4 to 7 years jail time in state prison
- Fine not exceeding $10,000
If you face domestic violence misdemeanor charges, the punishment may include:
- Up to 1-year imprisonment in county prison
- Probation instead of jail time
- A fine of up to$2000
Stalking — Penal Code 646.9
Under Penal Code 646.9, it is unlawful to intentionally, maliciously, and repeatedly follow another person and cause them reasonable fear for their safety or that of their immediate family.
Like domestic violence, stalking is a wobbler offense. The facts of a case play a significant role in dictating whether you will face misdemeanor or felony charges.
If the prosecution imposes misdemeanor charges and you are convicted, the punishment may include
- Up to 1 year in jail
Felony charges attract the following penalties:
- Prison time for up to 5 years
Even though stalking is generally not a sex crime, a crime fueled by a sexual compulsion is a sex crime. Hence, a conviction may require you to register as a California sex offender.
Criminal Threat — Penal Code 422
Penal Code 422 criminalizes threatening someone to cause them or their immediate family death or great bodily harm. When such threats cause reasonable fear, and the accused can do, as they say, the prosecution may impose criminal threat charges.
Violating Penal Code Section 422 is a wobbler offense. If charged as a misdemeanor, the punishment includes:
- Imprisonment in county jail for up to 1 year
- A maximum fine of $1,000
When convicted of a felony, the penalty may be as follows:
- 16 months, two years, or three years jail time in state prison
- A fine of up to $1,000
Find a Santa Ana Criminal Attorney Near Me
A restraining order can affect your life in more ways than one. First, it could limit your access to your children and the people you love. Second, it could force you to relocate from your current primary residence. Then again, violating any terms of the order could put your freedom at risk. If arrested for violating a restraining order in Santa Ana, contact California Criminal Lawyer Group. We have decades of combined experience and can help you fight the charges. Our knowledge and experience in the field allow us to set up a strong defense team that increases the likelihood of the prosecution dropping the charges or reducing them. Call us at 714-844-4151 for a free phone consultation and case evaluation.
