Restraining Order Violation in California under Penal Code 273.6 PC
What is a restraining order in California?
Restraining or criminal protective orders are court-issued mandates, which are used to protect victims from being physically abused, intimidated, stalked or harassed. The restraining orders forbid individuals from making any type of contact with the alleged victim, including phone calls, text messages and emails. Restraining orders also prevent indirect communication such as sending a message through a third party. However, the no-contact order does permit a person’s lawyer to retain the services of an investigator and contact the protected individual for interviewing him or her as part of the defense.
Have You Been Issued a Restraining or Criminal Protective Order?
If you have been issued a restraining order, it is important that you make no attempt to contact the victim – including email, snail mail, texts or messenger service. If you have been accused of a protective or restraining order violation under California Penal Code Section 273.6, it is important that you contact an experienced California criminal defense lawyer who will fight the charges, ensure that your side of the story is heard, and help protect your rights every step of the way. For over 30 years, our attorneys have helped thousands of individuals accused of violating a restraining or protective order in California. You can speak to one of our lawyers experienced in handling cases pertaining to restraining order violations today by dialing (877) 4-NO-JAIL or (877) 466-5245.
How Can You Be Found Guilty of Violation of a Restraining or Protective Order?
A person who is facing a court issued restraining order or a protective order may be charged with a violation of that order under California Penal Code Section 273.6, if he or she fails to comply with the terms and conditions of that order. To obtain a conviction, the prosecutor must prove several elements:
- A judge issued the restraining order against the defendant.
- The defendant had knowledge that such an order was issued and knew about the terms and conditions contained in the order. However, the prosecution does not need to prove that the defendant actually read the court order to show that he or she became familiar with its contents. The defendant can obtain knowledge of the court order through an alternate source that conveys the essence of the order’s terms.
- The defendant had the “present ability” to follow the order. This means that the court order must be tailored in a reasonable fashion that avoids placing unjust or prejudicial restrictions on a defendant’s liberty. If the terms of the restraining order make it impossible or impractical for him or her to comply, then that person cannot be convicted for a violation of these unreasonable terms.
- The defendant intentionally violated the restraining order or protective order. This means that he or she knew of the order’s terms and chose to violate them anyway. However, an accidental or inadvertent violation is not enough to convict the person of violating a restraining order under California Penal Code Section 273.6.
Types of Restraining Orders in California
Protective orders issued by California courts fall under four categories:
- Domestic violence restraining orders: These types of restraining orders protect individuals from abuse or threats of abuse from someone with whom they have a close relationship. These types of restraining orders may be filed by married or registered domestic partners, spouses, former partners or spouses, boyfriends or girlfriends and co-habitants. They may also be filed on behalf of a child. A child who is 12 or older can file a restraining order on his or her own.
- Civil harassment restraining order: These restraining orders may be filed against neighbors, roommates, co-workers or extended family members. They may be filed in cases where there is unlawful violence such as assault and battery or stalking or where there is a credible threat of violence.
- Elder or dependent adult restraining order: These types of restraining orders may be filed by individuals who are 65 or older or by those between the ages of 18 and 64 who have mental and physical disabilities that prevent them from living a normal life. Elderly or dependent individuals who are victims of abuse, neglect, hurtful treatment and deprivation can file these types of restraining orders.
- Workplace violence restraining orders: These are filed by employers who wish to protect employees from violence or threatened violence in the workplace.
Levels of Protection
Anyone who has obtained one of these four types of restraining orders can seek different levels of protection depending on the specifics of their case, their particular circumstances and the level of danger they face or believe they face. There are three levels of protection offered to applicants who file for restraining orders:
- Emergency Protective Order (EPO): The purpose of an emergency restraining order (EPO) is to provide short-term or interim protection to the victim while he or she is in the process of applying for a permanent restraining order. Typically, a police officer responding to the scene will request an EPO. These types of protective orders are commonly issued in domestic violence cases. An EPO lasts for seven days and can be replaced by a more permanent court order after its conclusion.
- Temporary Restraining Order (TRO): A temporary restraining order can be requested by the prosecution and if granted, stays in effect until the conclusion of the case. The purpose of a TRO is to provide temporary protection to the victim until a hearing on the merits of a permanent restraining order can be held or until the conclusion of the criminal case.
- Permanent Restraining Order (PRO): A permanent restraining order restricts you from making any contact with the victim and can last for up to five years. Since a PRO significantly restricts your liberty, the court must conduct a hearing and allow the prosecution as well as the defense to present their cases. The judge will weigh the evidence for and against issuing the restraining order and make a determination based on the facts.
Serving a Restraining Order in Orange County
Once a court grants a temporary restraining order and a hearing date, the order papers must be delivered, or “served” to the respondent, putting the person on notice that a petition has been filed against him or her. The order papers will typically contain the date and time of the hearing, a statement of the action requested, and any document the petitioner may have filed with the court in support of his or her position. The respondent will generally have between 10 to 20 days before the hearing date in which to respond to the petitioner’s statements. If the proper procedure of “serving” the respondent has not been followed, the court cannot issue a permanent restraining order. A law enforcement officer or a process server can serve the restraining order, but it cannot be mailed.
Speak to an Experienced Restraining Order Attorney
If you have been charged with restraining or protective order violation, you can speak to one of our attorneys experienced in restraining orders who can better inform you of your options. For over 30 years, our attorneys at Wallin & Klarich have helped clients who have faced situations similar to yours. We will work hard to ensure that your rights and interests are protected. With offices in Orange County, Los Angeles, San Diego, San Bernardino, Riverside, Ventura, and Victorville, our defense lawyers have successfully represented Southern California residents through their entire restraining order process.
We are available 24/7 to answer any questions you may have and are committed to building the best possible defense in your case. Please contact our skilled and professional defense attorneys today at (877) 4-NO-JAIL or (877) 466-5245. We always offer free consultations and comprehensive case assessments.