Overview:
There are a number of situations where a person may seek, and obtain, a protective order, commonly known as a restraining order. The effect of these orders can vary widely, but generally either exclude a person from going to certain places or prohibit them from engaging in certain offensive or abusive behaviors. If a person finds themselves subject to a restraining order, and they violate that order; then a crime has been committed.
Section 273.6 of the California Penal Code imposes misdemeanor criminal liability, and felony liability in certain limited circumstances, on any person who violates the terms of a restraining order. Unlike most misdemeanors, a violation of section 273.6 carries with it, minimum jail time requirements for certain types of violations. This means that the law mandates that defendants who violate a restraining order must spend at least some time in jail. If a person engages in repeats violations of a restraining order, and those violations result in any injury; the minimum amount of time they must spend in jail increases significantly.
What is Violation of A Restraining Order:
In order to understand what it is to violate a restraining order, first you need to know what a restraining order is, and how it works.
There are four main types of restraining orders, they are:
- Restraining Orders for Domestic Violence - for when abuse occurs within the context of a close or intimate relationship, such as current or former spouses, or people who date or used to date;
- Restraining Orders for Civil Harassment - these orders apply in cases where there is no close or intimate relationship, but rather another person (such as an acquaintance, neighbor or even a complete stranger) is engaging in threatening, abusive or harassing behavior;
- Restraining Orders for Elder Abuse - application of these orders is limited to individuals age 65 or over, or younger adults with significant mental or physical disabilities; and
- Restraining Orders for Workplace Violence - workplace violence restraining orders are somewhat unique in that only employers may request them on behalf of their employees, when the employer believes that here is a significant threat of workplace violence or severe harassment.
Restraining orders operate to restrain one person (the restrained person) in relation to another person (the protected person.) The specific terms of any of these types of restraining orders varies from case to case. Essentially, the terms of a restraining order are custom made by a court in each case where an order is granted. However, most restraining orders will typically prohibit the person being restrained from any contact with the protected person, either in person, by telephone or by electronic communications such as text or e-mail. Restraining orders may also require a restrained person to remain a certain minimum distance from the protected person.
Examples of Restraining Order Violation:
Don and Maggie broke up 6 months ago, Don has continued to call Maggie many times a day and has shown up, uninvited, to her home and work. After Maggie obtained a restraining order against Don, he no longer comes to her home, but he continues to call her. Don has violated the restraining order because any contact is forbidden.
Paul and Sam are neighbors who got into a fistfight where Sam's nose was broken. Sam got a restraining order against Paul. They run into each other at a nearby store. Paul immediately makes his purchase and leaves without talking to Sam. Sam calls the police to have Paul arrested for violating the order. Paul can't be charged because he did not intend to run into Sam and left as soon as possible.
What is the Difference Between a Restraining Order and a Stay-Away Order:
At first blush, it may appear that a "stay-away" order is just another name for a restraining order. In fact, they are two separate and distinct things. While the goals of restraining orders and stay-away orders are similar, they arise under different situations, and have different consequences if they are violated.
A stay-away order is used exclusively in the context of a criminal case, usually for something like domestic violence. It requires the criminal defendant to stay away from the alleged victim and/or potential witnesses in the case. The application for the order usually comes from the district attorney prosecuting the criminal case, rather than the person seeking protection, as is the case with a restraining order.
If a person violates a stay-away order, rather than violating Penal Code section 273.6, they are held in criminal contempt of court, and can be prosecuted under Penal Code section 166 for violating a court order.
How Does a Prosecutor Prove Violation of A Restraining Order:
To prove a defendant is guilty of violating a restraining order, proscribed by Penal Code Section 273.6, the prosecutor has to prove these elements:
(1) A judge made an order imposing a legal protective (restraining) order; and
(2) The defendant is, or should be, aware of the order; and
(3) the charged defendant intentionally engaged in actions which violated that order.
As with most crimes, the prosecution must prove intent. A person cannot be convicted if the prosecution fails to show that the defendant intended to violate the restraining order.
Penalties For Violating Penal Code Section 273.6:
Violation of a restraining order is generally a misdemeanor. This means that under most circumstances a person cannot be sentenced to more than one year in jail. However, unlike most misdemeanors, there are special provisions for minimum jail time for a defendant who violates Penal Code section 273.6. There are also restrictions placed on anyone convicted of restraining order violations, preventing them from owning or purchasing firearms. Violating the firearm restrictions may actually result in the commission of a felony, which carries much heavier penalties.
For a first offense, Penal Code section 273.6 violation of a restraining order can result in the following penalties:
- 3 years Summary probation;
- Up to one year in county jail; and/or
- A fine of up to one thousand dollars ($1000.)
Probation may include additional requirements, such as mandatory counseling (including anger management classes, domestic violence counseling and substance abuse counseling,) Grant of probation may require payment of up to $5,000.00 to battered women's shelters and restitution to the victim for any reasonable counseling or medical expenses incurred as a result of the violation.
If the protected party suffers a physical injury, the defendant faces statutory minimum jail time of at least thirty (30) days in a county jail; though the court has discretion to waive this requirement if the defendant has already spent at least 48 hours in jail.
It is illegal to own, possess, purchase, or otherwise acquire a gun or other firearms while the restraining order is in effect and the restrained person must either relinquish their weapons to a local law enforcement agency or sell them to a licensed gun dealer as instructed on the face of the protective order. If the defendant knowingly owns or possesses a firearm while the order is in effect, they can be charged with a misdemeanor with the following penalties:
- 3 years Summary probation;
- Up to one year in county jail; and/or
- A fine of up to one thousand dollars ($1,000.)
If the defendant purchases, receives or attempts to purchase or receive a firearm while the order is in effect, they can be charged with either a misdemeanor or a felony. If the person is charged, with a misdemeanor, the same penalties listed above apply. If, however, they are charged with a felony, the following penalties:
- 5 years Formal probation;
- Sixteen (16) months, two (2), or three (3) years in state prison; and/or
- A fine of up to ten thousand dollars ($10,000.)
Repeat Offenses:
When a person is charged with repeatedly violating a restraining order within a one year period of a prior conviction, and the violation includes an act of violence or a credible threat of violence; the violation can be treated as either a misdemeanor or a felony at the discretion of the prosecutor. Which route a prosecutor chooses with largely depend on the facts of the case and the defendant's criminal history.
A misdemeanor can result in the following penalties:
- 3 years Summary probation;
- Up to one year in county jail; and/or
- A fine of up to one thousand dollars ($1,000.)
A felony can result in the following penalties:
- 5 years Formal probation;
- Sixteen (16) months, two (2), or three (3) years in state prison; and/or
- A fine of up to ten thousand dollars ($10,000.)
If the protected party suffers a physical injury as a result of the violation, the defendant faces a statutory minimum of at least six (6) months in county jail.
As with a first offense, the court has discretion to waive the minimum six (6) month jail time, provided that the defendant has already spent at least thirty (30) days in jail.
Defenses:
Lack of knowledge:
If the defendant was not aware that a restraining order had been issued, because they were not present in court at the time and had not received notice; then they can't be convicted of a violation. It is not necessary for the prosecution to prove that a defendant knew of the restraining order. Rather the burden is on the defendant to prove that they did not know. Also, even if a person can prove that they did not know of the existence of the restraining order, they can still be convicted if they should have known. If, for example, a person receives notice of the restraining order in the mail, but refuses to open the envelope; presenting the unopened envelope may prove they did not know of the restraining order, but they can still be convicted because they should have known, and would have known if they had opened the envelope.
Lack of intent:
If the defendant had no intention to see the protected person, but happened to be at the same location at the same time; then the defendant can't be convicted of violating the restraining order. The encounter must not be reasonably foreseeable. If, for example, the defendant was sitting at a coffee shop that they knew the protected person frequents; they will likely be in violation of the restraining order if the protected person shows up there, even if the defendant didn't know when the protected person would be arriving.
False allegations:
It is not unheard of for the protected person to make a false allegation as a result of anger, jealousy or any number of other potential factors. In such a case, an attorney can have the alleged incidents investigated to expose the truth.
Actual Case:
Everett and Sue had two infant children together. The couple had an on again, off again, relationship in which they would separate for some time and then come back to each other. There had been numerous acts of domestic violence each against the other. Frequently, when they were feuding, one of them would apply for a restraining order which often was granted. When Everett retained me he had been accused of violation of a court order, but after the accusation he and Sue had gotten back together. I was able to demonstrate to the D.A. that the couple was back together, that Sue did not want prosecution, and that Sue had voluntarily had contact with Everett. As a result, the District Attorney dismissed the charges.
How We can Help:
I, David Foos, have handled literally thousands of criminal defense cases and have usually achieved great results for my clients. I pride myself on working tirelessly for my clients and pushing their interests to the max. I have fostered relationships in the Courts of Northern California through my 40 years of experience as an attorney and a Judicial Officer. I will research and investigate your cases, and leave no stone unturned in zealously advocating for you. I have a history of proven results and many satisfied clients. My reviews on Google and Yelp are testaments to the many people I have helped. Call me and let me help you through this very difficult time and allow you to breathe easier. The initial consultation is at no cost to you. Call me at 916-779-3500, or reach me by email at Contact@foosgavinlaw.com.
