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Domestic Violence Restraining Order Laws

California’s Domestic Violence Restraining Order Laws

What Is A Restraining Order?

A restraining order is issued by a court and is ultimately designed to protect an individual from any harassment, threats, stalking, or physical harm caused by the person named in the order. The protective order can have certain terms and conditions that prohibit specific actions such as making contact or entering a property. Intentionally ignoring the provisions of that restraining order is strictly prohibited.

What Does It Mean to Violate A Domestic Violence Restraining Order?

California’s Penal Code 273.6 PC makes it a crime to violate a domestic violence restraining order. A California restraining order is issued by a judge and the terms or conditions cannot be intentionally violated without consequence. A restraining order is synonymous with a protective order or a stay away order and the act of violating such an order is illegal.

When facing charges of violating a domestic violence restraining order, Penal Code 273.6 PC, it’s recommended that you find strong legal representation. A criminal defense attorney who is familiar with the punishments and penalties associated with violating a domestic violence restraining order can help inform you on the best possible course of action. The following are a few examples that demonstrate what it means to violate a domestic violence restraining order.

Examples

The restraining order the judge put in place states Zachary must stay away from his ex-wife’s home and workplace. Zachary ignores the restraining order and breaks the taillights on his ex-wife’s car while she is at work. He later goes to her home and smashes the back window of her car with a brick.

The judge issued a protective order stating that Danny could not own or possess any firearms. The order stated that he was obligated to relinquish his handguns and rifles to the necessary authorities. Instead, he moves them into his garage and refuses to relinquish them for the length of the order.

Similar Protective Orders

California has several types of protection orders that are covered under the same statutes as domestic violence restraining orders and they are:

Elderly or dependent adult abuse restraining orders are designed to protect the elderly, 65 years or older, as well as adults 18 to 64 years old who are suffering from disabilities. This protection order is usually issued to protect them from emotional, financial, and/or physical abuse and/or neglect.

Civil harassment restraining orders are designed to protect people who are not considered an intimate partner, such as colleagues, neighbors, and other individuals who are not related/close to you.   

Workplace violence restraining orders are designed to protect an employee from the threat of violence or actual violence in the workplace and may be requested by the employer.

Different Levels of Protection

There are three levels of protection within a restraining order that can be issued by a judge.

Emergency Protective Orders are put in place in emergency cases and last for up to seven days. For example, when a police officer is called to a domestic violence situation and they suspect the alleged victim is in danger they can contact an on-call judge to issue the order.

Temporary Restraining Orders commonly last two to three weeks and are typically issued in situations where an individual is the victim of harassment or an emergency protective order has expired.

Permanent Restraining Orders can be issued in cases where the individual who applied needs extended protection. They can last for up to three years and even longer if the judge determines an extension is necessary.

Related/Associated Offenses

California Penal Code 243(e)(1) PC domestic battery

This is defined as the intentional and unlawful touching of an intimate partner that was either harmful and/or offensive.

California Penal Code 273.5 PC domestic abuse;

Causing corporal injury to another person whom you were in intimate relations with is considered domestic abuse.

California Penal Code 646.9 PC stalking;

This law prohibits the harassment or threats towards another individual to the extent that this person fears for their safety or the safety of their loved ones.

California Penal Code 422 PC criminal threats;

This is defined as any threat(s) made to another person with the specific intent to make them fear for their physical safety or the safety of their family.

The Prosecution

Violating a domestic violence restraining order is also referred to as being in contempt of court. In order for the prosecution to get a conviction for Penal Code 273.6 PC, they must first prove the following elements of the crime.

The domestic violence restraining order was lawfully issued by a judge,

The defendant had prior knowledge of the court order,

The defendant was fully capable of following the legal protective order, yet

The defendant intentionally/willfully chose to violate that order.

Who Can Be Charged?

The following are situations that demonstrate who can be charged with violating a domestic violence protective order.

A protective order was put in place stating Amanda was not permitted to contact her ex-girlfriend. Contact means no communicating via phone, text, email, or personal contact. It also encompasses messaging through social networking sites or taking any video/photographic surveillance.

Amanda ignores the legal protective order and begins sending text messages and private messages through social media. Amanda could be charged with violating a domestic violence protective order that specifically prohibited any contact with her ex-girlfriend.

A restraining order is placed against Jared stating he may not use physical violence or force against his spouse and cannot come to their family home. He ignores the order and violates it by entering their family home. He hides in the bedroom, waiting for his wife to come home from work. Once she enters the bedroom, he aggressively grabs and pushes her against the wall. He threatens to break her fingers unless she agrees to drop the restraining order and take him back.

Jared will face charges for violating a domestic violence restraining order and could face additional domestic violence charges. This may include charges for Penal Code 243(e)(1) PC domestic battery because he violently grabbed her, pushed her, and threatened to cause her physical injury. If it’s discovered that he caused her any corporal injury, he could face felonious charges which carry more severe penalties.

Legal Defense

Retaining a criminal defense lawyer could make a huge difference in the outcome of your case. This is because they understand the intricacies of restraining orders and the most common legal defenses used when fighting charges for violating a domestic violence restraining order. Such as:

Was it a False Accusation?

False accusations can happen, especially in tough situations like a separation or divorce. For instance, Marley had a restraining order issued against him, stating he must not go to the family home to see his wife. While grocery shopping one night, he runs into his wife in one of the aisles. She gets scared and leaves, accusing him of violating the domestic violence restraining order.

Was the order intentionally violated?

If the order was not intentionally violated you did not actually violate the judge’s order. Edward, for example, had a protective order issued against him stating he could not contact his girlfriend. When checking his social media messages he came across a comical chain letter and decided to send it to the contacts on his friend's list. He had forgotten his girlfriend was on his friend's list and did not intend to actually violate the protective order.

Did you even know about the protective order?

There can be some confusion with violating a domestic violence restraining order if the defendant did not know that one was issued in the first place. If the notice was issued when the person named on the order was not present or did not receive the order, then they did not intentionally violate a legal protective order.

Was the restraining order legally issued by a judge?

If the protective order was not issued by an actual judge then it was not legally binding. Other instances where the protective order may not be applicable are in cases where the judge that issued it did not have the jurisdiction to do so. If it was an illegal protective order, where there was no legal basis for the restraining order to be issued, you are not obligated to follow that order.

Penalties

The consequences for being convicted of violating a domestic violence restraining order depend on whether this was the first offense, subsequent offense, or if the alleged victim suffered any physical injury. Violating a legal protective order is usually considered a misdemeanor.

If convicted of a misdemeanor, penalties include:

A maximum fine of one thousand dollars, and

Up to one year in the county jail.

California law states that if there is a restraining order issued against you it is illegal to acquire, buy, possess, or own a gun as long as the order is in place. If you do not relinquish your firearms to the proper authorities, you could face misdemeanor penalties. These penalties include fines up to one thousand dollars and a maximum of one year in the county jail.

The case could become a wobbler case if the defendant attempted to purchase or receive a gun while the restraining order is in effect. A wobbler means the offense could be charged as a misdemeanor or as a felony. If convicted of a felony, you face up to one thousand dollars in fines and up to three years in a California state prison.

Additional punishments can apply when a judge who grants probation determines the terms and conditions of the probation. These may include:

Mandatory anger management, domestic violence, or substance abuse classes,

Mandatory counseling,

Payments made to a battered women’s shelter, and/or

Restitution to the victim for any counseling and medical expenses accrued as a result of the offense.  

However, in cases where violence or the threat of violence was involved, it could be charged as a wobbler. If the protected party named in the restraining order suffers any physical injury as a result of you violating the order you could face a minimum of thirty days in county jail.

If convicted of a felony, penalties include:

Probation and

Up to one year in county jail,

Or

16 months, 2, or 3 years in a California state prison and

A maximum of ten thousand dollars in fines.

It can also be charged as a wobbler if this is your second conviction for the crime within one year and if the protected party suffered any physical injuries.

Second Conviction: Misdemeanor;

Six months to one year in jail.

Second Conviction: Felony;

Probation and

Up to one year in the county jail,

Or

16 months, 2, or 3 years in county jail.

Penalties for Related Offenses

California Penal Code 243(e)(1) PC domestic battery;

Misdemeanor;

A maximum of two thousand dollars in fines and

Up to one year in the county jail.

California Penal Code 273.5 domestic abuse;

Misdemeanor;

Maximum fines up to six thousand dollars,

Up to one year in the county jail, and/or

Summary probation.

Felony;

Fines up to six thousand dollars,

2, 3, or 4 years in a California state prison, and/or

Formal probation.

California Penal Code 646.9 PC Stalking;

Misdemeanor Penalties;

Maximum fines of one thousand dollars and

Up to one year in the county jail.

Felony Penalties:

Maximum fines up to ten thousand dollars and

Up to three years in a California state penitentiary.

California Penal Code 422 PC Criminal Threats;

Misdemeanor;

Fines up to one thousand dollars and

Up to one year in the county jail.

Felony;

Fines up to ten thousand dollars and

Up to three years in a California state penitentiary.

Who Can Help

If you or someone you know is facing charges of violating a domestic violence restraining order or any of the aforementioned protection orders, do not hesitate to contact a criminal defense attorney today. If you are located in the greater San Diego area, Orange County or Los Angeles consider the Law Offices of Anna R. Yum for top quality legal defense. As a premier criminal defense lawyer, you can expect an aggressive fight for your rights.   

For more information or a free consultation, contact us online or by calling 619-233-4433. 

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