In California, violating a restraining order is a serious criminal offense. The potential penalties for this violation range from thousands of dollars in penalty fines to years of imprisonment. You could also lose spousal rights, child custody rights, and rights over some of your properties. Even if the protected individual allows you to visit, California law does not recognize this as a legitimate ground for violating a restraining order. If you face accusations of violating an active restraining order, you need to seek the services of a competent criminal defense attorney. The experienced attorneys at the Los Angeles Criminal Attorney can help you create the best defense to fight your charges.

Restraining Order Under California Law

In California, a restraining order is also known as a protective order, outlined under Penal Code 273.6. This legal order prohibits you from approaching or contacting the issuing/protected person. A restraining order also prohibits contacting the protected person via phone calls, messages passed via another person, and messages through text, email, or social networking sites.

Often, people facing different forms of abuse in California use this legal order to protect themselves from their abusers. If you abuse your spouse or someone else, he/she can request a permanent or a temporary restraining order based on several factors. You will be the restrained person, while the victim issuing the order is the protected person. California courts often provide domestic violence or a civil harassment restraining order for various criminal and civil matters, including stalking, domestic abuse, and physical abuse.

When the judge decides to grant a restraining order, he/she sets the date and time for the restraining order hearing. Once the judge sets the hearing, you will be served with the restraining order papers. The restraining order papers notify you that a petition has been filed against you. Typically, the order papers contain a statement of the action requested, the date and time of the hearing, and any necessary document the victim could have filed with the court that supports their petition.

Once you obtain the order papers, you will have 10 to 20 days before the hearing date to respond to your accuser's statement. The court cannot issue a restraining order against you if you have not been served with the order papers through the right channel. A process server or a law enforcement officer can serve you with order papers but not through the mail.

Types Of Restraining Orders In California

Several restraining orders are available under California law. Understanding the specific principles of these restraining orders assists the victim in choosing the best restraining order that suits their case. Usually, the type of restraining order a victim requires varies based on their circumstances. All the restraining orders available in California work differently. Some restraining orders can only work for some specific people, situations, and workplaces.

On the other hand, if you are under a restraining order, you must understand its provisions.

Workplace Violence Restraining Order

California employers can issue this restraining order to protect their employees from abusive co-workers.

Civil Harassment Restraining Order

This type of order is issued to an abuser to whom the protection is not related. This order applies to restricted acquaintances, neighbors, or friends.

Dependent Adult Restraining Order

Any adult aged 18 years and above in California is allowed to fill this type of order. This order shields protected individuals with mental or physical impairment.

Domestic Violence Restraining Order

This order is issued against the victim’s cohabitant, spouse, or live-in partner. Children 12 years old and above in California can file this type of restraining order for themselves.

Elder Restraining Order

Older persons aged 65 years and above are allowed to file this restraining order in California.

Levels Of Protection For Criminal Restraining Orders In California

Various levels of restraining orders are available under California law. They include:

  • A temporary restraining order (TRO)
  • A permanent restraining order (PRO)
  • Emergency protective order (EPO)

Temporary Restraining Orders (TRO)

Often, this type of order is effective for a temporary period. A temporary restraining order does not exceed 20 days. However, the judge can order a shorter or longer period based on the case. A TRO aims to offer the abused immediate protection from their abuser. The TRO will prohibit you from coming near or contacting the protected.

The judge will impose a temporary restraining order on you if the alleged victim is facing immediate harm before a court trial happens. The judge could also issue a TRO against you if there is evidence that you are sending threats to the victim before the court trial. The abused should file a lawsuit against you within the limited protection time during the TRO period.

Permanent Restraining Orders (PRO)

A permanent restraining order has an indefinite period. Once the court issues this order against you, you are not allowed to come near or contact the protected. Under California law, only the judge can award the PRO.

In California, this is the highest level of protection the judge can grant to the abused. The judge only gives this order after the abused testifies in court and presents the necessary evidence. The judge will decide after reviewing the charges against the defendant.

If the case involves married partners, the judge can only allow you to visit your child or children under close police supervision based on the nature of abuse to your partner. However, the judge could also prevent you from seeing your child or children altogether.

The protected must meet the following elements before the judge issues a permanent restraining order in California:

  • He/she must be closely related to the abuser, whether by blood or personal relationship
  • Obvious signs of threat, abuse, or both should be evident

Additionally, apart from supervised distance from the protected, physical restrictions, and visitation rights, you could also face the following:

  • Lose legal rights over child custody
  • Lose personal properties, and
  • Spousal rights

Emergency Protective Orders (EPO)

The responding law officer in California grants emergency protective orders to domestic abuse victims. This is a short-term restraining order issued in response to an emergency. Often, the EPO takes seven days while the restricted case is ongoing. Based on the case evaluation, the court can order a permanent or lengthy temporary restraining order once the EPO is lifted.

EPO aims to offer the abused immediate protection from the abuser. The EPO will prevent you from coming near or contacting the protected. Before the responding law officer issues an EPO, he/she must observe two key findings. These are:

  • The protected is facing imminent harm from the restricted
  • The EPO is necessary to avoid this harm

Under the Family Code 6250.3 of California law, an official judicial officer could issue an EPO after confirming the evidence of abuse according to Family Code 6251. Family Code 6251 also covers other forms of domestic abuse, although its primary reference is spousal abuse. This statute also mentions dependent person abuse, child abuse, elder abuse, and child abduction.

Penalties For Violating A Restraining Order In California

In California, violation of a restraining order is often charged as a misdemeanor crime under PC 273.6. However, violating a restraining order could also be a felony crime. You will face punishment based on the crime level. You could face the following penalties if the prosecutor charges you with a misdemeanor offense:

  • A fine that does not exceed $1,000
  • A jail term that does not exceed one year in a county jail or state prison

You could face the following penalties if the prosecutor charges you with a felony offense:

  • A fine that does not exceed 10,000
  • A jail term that does not exceed three years in a state prison

There are also situations when you could face wobbler offense charges. These situations could include:

  • If you have violated the restraining order twice
  • You attacked the protected person

Often, violation of a restraining order does not affect your immigration status. However, you could face deportation or inadmissibility into the United States if the court considers the crime an aggravated felony.

Penal Code 29825 of California law prohibits a restrained individual from owning, possessing, or buying a firearm. If you have an active restraining order, you will be required to surrender your firearm to the police.

It is a wobbler offense in California to possess a gun illegally under a court order. You could face misdemeanor or felony charges. The DA could charge the crime as a felony or misdemeanor, depending on the outcome of the investigation. If the DA charges the offense as a misdemeanor, you could face the following penalties:

  • A fine that does not exceed $1,000
  • A jail term that does not exceed one year in a county jail or a state prison

If the prosecutor charges you with a felony, you could face the following penalties:

  • A fine that does not exceed $1,000
  • A jail term that does not exceed three years in a county jail or a state prison

You could also face immigration repercussions if the police find you possessing a gun in California while under a restricted order. As a result, you could be deemed inadmissible or deported.

You can only recover your gun rights if the restraining order is lifted. However, you will be unable to recover gun rights if you own, buy, or possess a gun illegally while under a restraining order.

The good news is that you don’t have to face jail time after violating a restraining order. You could qualify for probation after a conviction of violating Penal Code 273.6 of California law. Probation allows you to serve a sentence out of jail as long as you adhere to the court's requirements. Some of the probation conditions include:

  • Filing regular reports with a probation officer
  • Community service
  • Paying restitution to the victim
  • Attending counseling or anger management classes

If you violate the above conditions, the judge could revoke the probation and subject you to a jail term. Penal Code 1203.2 of the California law highlights the penalties, legalities, and definitions behind a probationary order. According to Penal Code 273.6, once you complete probation, you could pursue an expungement of your charges. However, this is only possible if you are charged with misdemeanor charges. If you are charged with a felony crime, the law in California does not allow you to pursue expungement.

Legal Defenses Against The Charges Of Violating A Restraining Order

If you are accused of violating a restraining order in California, several legal defenses are available that you could use to challenge your charges. You require the counsel of an effective criminal defense attorney to devise an effective defense.

Your attorney will look into the details of your charges, identify the pain points and devise a strategy to counter the allegations against you. Some of the defenses you could use include:

  • False allegations
  • Lack of knowledge
  • Unlawfully issued restraining order
  • Lack of intent
  • Inability to follow the protective order

False Allegations

False allegations are some of the most frequent defenses for the charges of violating a restraining order. You can allege that the said victim accused you falsely of violating a restraining order. Under California law, this defense is valid if the alleged victim had a motive to lie against you. For example, your accuser could have a record of making false accusations or seeking revenge. The judge could drop your charges if you provide substantial evidence supporting your defense. Some evidence you could utilize in this case include emails, text messages, and witness testimonies.

Especially in domestic violence cases, the victim is often highly defensive. As a result, the victim could resort to formulating lies to malign you to gain an advantage over you. A competent attorney with experience in restraining order violations will know how to find and utilize this evidence in your favor.

Lack Of Knowledge

You can raise this defense in court if you are unaware of the restraining order or do not understand the conditions of the restraining order. You must fully understand your limitations once the court issues the restraining order. Your attorney must explain in simple language what you can and are not supposed to do under legal supervision. Your attorney must discuss with you the conditions highlighted in the restraining order.

If you are accused of breaching a restraining order, you should consult an experienced criminal defense attorney. Your attorney can provide evidence of your lack of knowledge by showing that the protected person did not serve you with a restraining order notice. The restraining order could have been sent to someone else. The judge could drop your breaching charges and waive the penalties in this case.

Unlawfully Issued Restraining Order

Under California law, a restraining order needs the alleged victim to prove some elements before requesting a restraining order against you. You or your attorney can allege that the restriction order was illegal if you believe that the proper jurisdiction was lacking.

Your attorney could also present a convincing defense by studying the restraining order carefully and thoroughly investigating your charges. A competent criminal defense attorney knows how to obtain the right evidence and witnesses to support your argument. The court will drop the charges against you and the restraining order if your attorney succeeds in proving this evidence.

Lack Of Intent

You can allege that you did not intend to violate the conditions of the restraining order. You can present this defense before the court if you can provide sufficient evidence that you were not aware of the restraining order or you did not understand the conditions of the restraining order.

 Under California law, the element of intent is crucial in every criminal case. The presence of intent differentiates a civil case from a criminal case. A civil case is defined as negligence. For example, you could be restricted from being within one kilometer of the protected individual. Unfortunately, one day you go to a bar and meet the protected individual unexpectedly. Since you did not know the protected individual was visiting the same place, the judge will not consider the event a restraining order violation. Your charges could be dropped once the judge identifies your conduct as an honest mistake.

Inability To Adhere To The Restraining Order

You will have a valid defense under California law if you cannot adhere to the restraining order because it is generally hard to do so. In this situation, the judge could drop your charges for your inability to adhere to the restraining order. For example, the restraining order could order you not to use the same road as the protected individual. However, you and the protected individual often use the same route while going to work, and there is no optional road for you.

There are also situations where disability cannot allow you to adhere to the restraining order. You could utilize this defense in court if you cannot follow the order because of disability or other situations. If you consult an attorney, the attorney will assist you in clarifying these conditions. The judge could adjust your restraining order to cater to your needs or impairments.

Related Offenses

Several crimes under California law are closely related to violating a restraining order. They include:

Contempt Of Court — Penal Code 166

Penal Code 166 of California law defines the crime of contempt of court. Some of the behaviors that this statute prohibits include:

  • Willful disobedience of the terms of a lawful injunction
  • Willfully disobeying a lawful written order of the court
  • Publishing a false account of court proceedings
  • Refusing to be sworn in as a witness
  • While serving as a witness, refusing to answer any material question when there is no legal exception

Under California law, contempt of court is a misdemeanor offense. You could face the following penalties:

  • A fine of up to $1,000
  • A jail term of six months in a county jail

It could also be possible for you to do community service instead of the fine. However, other circumstances could attract severe penalties. These include:

  • If you own or possess a gun in violation of a court order
  • Violating the terms of the domestic violence protective order
  • Violating a protective order when you have a prior stalking conviction

You can challenge your charges using the following defenses:

  • False allegations
  • No willful violation of court order
  • No disorderly behavior

Elder Abuse — Penal Code 368

Penal Code 368 defines the offense of elder abuse in California. It is a crime under this statute for anyone to direct abuse to any person who is 65 years and above. The abuse could include:

  • Financial exploitation
  • Physical abuse
  • Neglect and endangerment
  • Emotional abuse

Several resources are available in California for victims of elder abuse. Some of these are:

Violation of Penal Code 368 could be a misdemeanor or a felony. If the prosecutor charges you with a misdemeanor, you could face the following penalties:

  • Restitution to the victim
  • A jail term that does not exceed one year in a county jail
  • A fine that does not exceed $6,000

If the prosecutor charges you with a felony, you could face the following penalties:

  • Restitution to the victim
  • A jail term that does not exceed four years in a state prison
  • A fine that does not exceed $10,000

You can use the following legal defenses to fight elder abuse charges:

  • Falsely accused
  • No willful act
  • No abuse

Find a Criminal Defense Attorney Near Me

If you or a loved one faces charges for violating a restraining order, you need to consult an experienced criminal defense attorney as soon as possible. Your attorney can guide you on your legal rights. In addition, the attorney will represent you during the trial or even enter a plea deal with the prosecutor. At the Los Angeles Criminal Attorney, our esteemed team of attorneys has assisted countless victims fight for their justice. Call us at 424-333-0943 and talk to one of our attorneys.