Violating a Restraining Order

Being accused of violating a restraining order placed against you is a matter which should be taken seriously. Especially because the underlying facts and circumstances surrounding the restraining order are already severe enough. Restraining orders are typically filed in connection with domestic violence cases or similar cases of that nature.

It’s challenging to attempt to fight these offenses alone. The many facets surrounding this law are not commonly known. Getting the expert legal advice of a professional is very much recommended. Find a criminal defense attorney who is familiar with the details and potential consequences of breaking this law.

For a more critical understanding of this statute, we must first break it down through defining the terms.

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Penal Code 273.6 - Definitions

Defining ‘Restraining Order’

In order to violate a restraining order, you must first know what one is. A restraining order, also known as a protective or a stay away order, is a court order to stay away from an individual(s). This type of order was specifically outlined to safeguard someone from the person named in the order. It’s designed to protect an individual from harassment, stalking, criminal threats, or other psychological and/or physical harm.

A stay-away order will oftentimes layout conditions which limit and/or prohibit certain actions. For instance, one could be barred from entering a property, contacting, or coming within a certain distance of another person.

Purposely ignoring what is outlined in the protective order is strictly prohibited by the court. The lawful document was issued by a judge and stipulates harsh consequences in the event the order was intentionally disregarded.  

Related Protective Orders

Restraining orders are not singularly designed for victims of domestic violence. They are also imposed because of general harassment, abuse, or assault. The list below provides further details and a closer look at what makes these provisions so different.

Civil harassment restraining orders;

Everyone who is not defined as a domestic or intimate partner is covered under this law. This refers to persons such as acquaintances, co-workers, neighbors, and/or other individuals whom you are not intimate with, close or related to.  

Elderly or dependent adult abuse restraining orders;

Taking advantage of or bullying people who cannot fully defend themselves is considered overly immoral. The law places emphasis on this fact by addressing the elderly and individuals who are 65 years or older with disabilities.

It specifies they should be provided protection from mental, financial, physical, or neglectful abuse. For instance, a personal care assistant who unlawfully takes some of their elderly client’s cash.

Workplace violence restraining orders;

The workplace is supposed to be one of the safest environments from harassment, mental/physical abuse, or other forms of unlawful acts.

This provision could be requested by the employer and is meant to provide protection for an employee from any threat of violence or actual violence in the workplace.

Levels of Protection

A judge can order different levels of protection based on the circumstances surrounding each case. The three levels are explained below.

Emergency Restraining Orders;

These situations require special circumstances, like a victim of a serious crime who is thought to be in immediate danger. This order can be put into place in such emergency cases and might last for up to one week (7 days).

Example - A known stalker graduates to breaking and entering an alleged victim’s home, promising threats of unknown violence. Unable to capture this stalker for the crime of breaking and entering, a detective suspects the threats are credible. After contacting a judge, the stay-away order is placed on the known suspect.

Temporary Stay-Away Orders;

This order is usually issued under conditions such as someone is the current victim of harassment and/or when the expiration of an emergency restraining order has occurred.

It might begin right after an emergency one lapsed and lasts for up to three weeks. With that in mind, depending on the circumstances of a case or if it’s an on-going investigation, a judge can have the length of the order increased if it’s deemed necessary.

Permanent Restraining Orders;

Unfortunately, there are cases that warrant a permanent order be issued. If someone applies for a long-term protective order, the judge looks at the details of the case under closer scrutiny.

If the judge decides that the provision for the alleged victim is necessary, they can issue the request. A permanent protective order can last up to five years and the judge is able to extend it, should the situation call for it.

Closely Related Offenses

Restraining orders are oftentimes filed in conjunction with the initial crimes that made it necessary in the first place. The four statutes below represent the most common charges associated with protective orders.

Penal Code 273.5 domestic abuse;

Abusing or causing corporal injury to another person with whom you are in a relationship with, related to and/or living under the same roof as is a crime.

Penal Code 243(e)(1), domestic battery;

Offensively and deliberately touching someone in a harmful manner, and the individual is your intimate partner, is related to you, and/or living in the same home as you are considered criminal acts.

Penal Code 646.9, stalking;

Constantly following, harassing, and/or threatening someone to the point that this individual might fear for their safety, or the safety of their family members and/or other loved ones is strictly prohibited under this law.

Penal Code 422, criminal threats;

Any threat made with the specific intent to cause another individual to fear for their safety, that of their family members, or other loved ones, is a crime.

The Prosecution

Depending on the nature of the initial crimes the defendant might have committed, the prosecution has been known to pursue maximum penalties for this violation. Especially when considering that you are going against a judge’s ruling by violating the restraining order. This could mean you would be held in contempt of court.

That said, the prosecution must still go through the facts of the crime before they can get an outright conviction.

The following factors must be proven beyond a reasonable doubt before they can pursue a conviction. Also referred to as the:

Elements of the Crime

A judge lawfully issued the stay-away order,

The defendant had full knowledge that it was in place,

The defendant had been deemed fully capable of abiding by this protective order, and

The defendant deliberately and willfully violated the restraining order despite the court issued restrictions set in place.

If the alleged victim suffered any harm due to the defendant violating the order, they could face enhanced penalties. Attempting to fight against these charges without help can seem paralyzing. Don’t face this alone. Get the advice you need by contacting a strong criminal defense lawyer.

Who Can Be Charged?

These examples can provide you with a broader perspective of who exactly could face charges for violating a protective order.

Example 1:

A protective order is placed against Sheila. She must keep her distance from her ex-girlfriend’s place of business, home, and school. Sheila ignores the judge’s orders and vandalizes the entryway of her ex-partner’s business. Worse yet, she goes to her college and follows her ex around between classes.

Example 2:

A protective order is issued for Don which prohibits him from contacting his ex-wife. The ruling specifically stated no communication whatsoever, which included phone, email, physical mail or letters, texting, other online messages, or anything of that nature. It also included GPS spying and photo/video surveillance.

Don violated the order by sending his wife photographs in the mail. The photos were of her going about her daily activities. He is guilty of violating the order by mailing something to her in the first place as well as following her around and taking photographs.

Example 3:

Daniel was required to follow all the provisions outlined in a restraining order. It specified that he could not purchase, receive, possess, or own any type of firearm. The judge ordered that all his weapons be cooperatively relinquished to the right authorities. Instead of giving them all up, he only parted with his hunting rifles. He attempted to hide his growing collection of handguns in his attic.

Legal Defense

There are many aspects to consider when reviewing all the details of this law. It’s not suggested that you try to fight against these accusations without help. The right legal representation has the expertise necessary to counter such allegations on your behalf.

Here are only a few examples of who cannot be charged with the crime of violating a restraining order under penal code 273.6. These are just some examples of the legal defense that are often used to combat such charges.

Is it a legal order?

A stay-away order must be approved and issued by an actual judge, otherwise, the defendant would not have to legally abide by it. It’s also possible that the restraining order could have been placed illegally. If those are the circumstances, then no one should be bound to follow it. In some cases, if the judge that issued the order was not lawfully authorized to place it, whether because they were out of their jurisdiction or for some other reason, then the defendant was not legally obligated to adhere to it.

Were you aware of the order?

In order to get a conviction for violating a restraining order, the defendant must have known that the order was in place. If you weren’t even aware that the protective order was in place, you cannot be found guilty of violating it.

Lack of Intent

If one did not intentionally mean to violate the terms and conditions of this law, then they should not be convicted of breaking the judges’ orders.

Example 1:

For instance, a man is grocery shopping at a store he uses frequently. His ex-boss has a temporary restraining order against him and happens to stop by the same store.

The man would not be guilty of violating the order because he did not intend on being in the same vicinity as his boss.

Example 2:

For instance, Sally was barred from contacting her ex-boyfriend, so she deleted his cellphone number. However, she didn’t remove his profile from her messenger APP. Sally’s daughter got a hold of it and continually attempted to facetime him several times in a row. He ignored the calls and reported that she violated the order.

Luckily, the daughter came forward and explained what she did. Still, because Sally didn’t intentionally contact him, she would not be guilty of violating the lawful order.

False Accusations

There are cases where fear or anger can fuel a false accusation. It’s also not unheard of to misidentify someone out of fear. A simple, reactionary allegation should not be enough of a reason to be charged with violating the court issued restrictions.

Examples:

Martha had a restraining order placed against her ex-roommate, Jen. When she found out that Jen had started dating her ex-boyfriend, she got angry. Martha falsely reported that the order had been violated.

Georgie had a protective order issued against his former neighbor. While bringing groceries inside his home, he spotted his neighbor driving down the street. Out of fear, he ran inside and quickly reported that the order had been broken.

It turned out the person driving was the neighbor’s brother and he bore a slight resemblance to the accused.

Penalties for Violating a Restraining Order

The punishments for breaking this law depend on whether this was a first or second offense. In most cases, this is typically charged as a misdemeanor.

However, if the alleged victim suffered any harm or great bodily injury, the consequences are more severe.

Misdemeanor;

Fines of up to one thousand dollars, and

As long as one year in the county jail.

2nd Offense, Misdemeanor;

Six months to one year in jail.

This case can become a wobbler, which means it could be charged as either a misdemeanor or a felony if:

This is the defendant’s subsequent offense for the same crime within a year, or

The victim suffered injuries as a result of your violation,

  • it’s an automatic thirty days to be served in the county jail.

Felony;

Probation, and

Up to one year in the county jail, OR

16 months, 2, or 3-year sentence in the state prison, and

Up to ten thousand dollars in fines.

2nd Offense, Felony;

Probation, and

Up to one year in the county jail, OR

16 months, 2, or 3-year county jail sentence.

Additional Consequences

Further punishments could be applied at the judge’s discretion including the terms, limits, and conditions of probation. The defendant may be ordered to take:

Mandatory anger management, domestic violence, or substance abuse classes, and counseling.

They could possibly have to make regular payments to a battered women’s shelter, and/or

Pay any restitution to the victim.

This includes any medical/counseling bills or loss of wages that occurred as a result of your contemptible actions. 

Relinquishing all firearms to the proper authorities.

In California, it’s against the law to get, purchase, receive, trade, acquire in any way, or own a firearm if you are named in a protective order. Refusing to respect this ruling will result in more misdemeanor charges. This includes another possible one year stay in the county jail and up to a thousand dollars in fines.

Penalties for Related Offenses

Penal Code 273.5 domestic abuse;

Misdemeanor;

Summary (informal) probation,

Fines of up to six thousand dollars, and/or

Up to one year in the county jail.

Felony;

Formal probation,

Up to six thousand dollars in fines, and/or

2, 3, or 4 years to be served in state prison.

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

Misdemeanor;

Up to two thousand dollars in fines, and/or

A potential one-year sentence in the county jail.

Penal Code 646.9 stalking;

Misdemeanor;

Maximum fines of one thousand dollars, and

Possibly up to one year spent in the county jail.

Felony;

Fines of up to ten thousand dollars, and

As much as three years in state prison.

Penal Code 422 criminal threats;

Misdemeanor;

Up to one thousand dollars in fines, and

A county jail sentence of up to one year.

Felony;

Maximum fines of up to ten thousand dollars, and

Up to three years in state prison.

Having a criminal record will have a negative impact on any future academic, business, travel, or residency goals. It’s also important to note, multiple felony convictions, particularly with crimes involving aggravating factors could result in a strike under California’s Three Strikes Law. Under this law, the prison time could significantly increase to possible life in prison.

Get Legal Help Today

Acting swiftly against these charges means getting the help you need by finding an aggressive criminal defense lawyer. At the Law Offices of Anna R. Yum, you can expect an effective fight on your behalf.

As a top-rated lawyer and former prosecutor, Attorney Yum understands what it takes to oppose these charges.

If you are located in the greater San Diego area, Orange County, Los Angeles, or the state of Illinois, and need legal advice, don’t hesitate to our San Diego criminal lawyer for a free consultation at 619-233-4433.

You can click here for more information on violating a restraining order or any other similar offenses.

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