Violation of Restraining Order Explained by Experienced Restraining Order Lawyers – (273.6 PC)
Are You Accused of Committing a Violation of Restraining Order?
Restraining or criminal protective orders are court-issued mandates that are used to protect victims from being physically abused, intimidated, stalked or harassed. Restraining orders forbid individuals from making any type of contact with the alleged victim, including phone calls, text messages, emails and social media messages. Restraining orders also prevent indirect communication, such as sending messages through a third party. If you are accused of committing a violation of a restraining order, you should speak to an experienced restraining order lawyer right away.
Read below for more information on restraining order laws or simply pick up the phone and call (877) 466-5245 for free, immediate advice from an expert restraining order lawyer at Wallin & Klarich.
Why Hire Wallin & Klarich?
The success of our restraining order violation defense firm has helped us achieve the highest of honors, including a 5 out of 5 AV rating on Lawyers.com, a 10 out of 10 rating from AVVO.com, and an A+ rating from the Better Business Bureau.
For more than 35 years, our restraining order violation attorneys at Wallin & Klarich have helped many people like you get the best possible results in their restraining order matters. Here are just a few testimonials provided by some of our previous clients who wanted to share their stories:
“My cousin served me with a civil harassment restraining order she filed against me in Orange County court. The allegations were untrue and her story was full of lies, accusing me of assaulting her when I only acted in self-defense. I was facing a restraining order being granted against me, which would jeopardize my job I have had over 30 years. Thankfully my Wallin & Klarich attorney believed my side of the story and found several inconsistencies in my cousin’s accusations. He was able to get a mutual agreement to stay away from each other and had the restraining order dismissed. Thank you, Wallin & Klarich!”
“I was breaking up with a difficult girlfriend, who surprised me with an unfounded temporary restraining order. Her allegations were completely untrue. Instead of rolling the dice and possibly getting an untrue finding of domestic violence against me, not to mention incurring the cost of a trial, my Tustin restraining order lawyer from Wallin & Klarich arranged for the matter to be handled out of court with a written agreement between myself and my ex. Everyone was happy!”
“I was charged with a misdemeanor for violating a restraining order in Riverside, California. I was very concerned about the possibility of losing my job and having to deal with the stigma of a conviction for violating a restraining order. If convicted of this charge, I was also facing the prospect of three years of probation, a mandatory 52-week domestic violence program, jail time, and hefty court fines. I hired the law firm of Wallin & Klarich to represent me in my case. My Riverside restraining order lawyer was able to convince the district attorney to allow me to plead guilty to simple contempt of court with no probation, no domestic violence classes, and a total fine of $190. I was able to keep my job and I would recommend Wallin & Klarich to anyone facing criminal charges. Thank you!”
Call Our Restraining Order Violation Lawyers Wallin & Klarich Today
You can place your trust in Wallin & Klarich. Our knowledgeable restraining order violation lawyers are committed to defending your rights and your freedom. Call us today for immediate help on your case.
For more information on restraining order laws, read below or simply pick up the phone and speak to one of our skilled restraining order violation defense attorneys today.
Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free telephone consultation.
What is a Restraining Order?
A restraining order (also called a “protective order”) is a court order that is designed to protect victims from physical abuse, harassment and threats. If you have a restraining order issued against you, it typically means that you will not be allowed to contact the individual who the restraining order is protecting at all.
The exact type of behavior that is prohibited by the restraining order will be dictated by the order itself. In most cases, the restraining order will include provisions designed to prevent you from making “contact” with the protected individual, including:
- Making you stay a certain distance away from the protected individual at all times
- Preventing you from making phone calls or sending text messages to the protected individual, AND/OR
- Prohibiting you from sending emails or social media interactions to the protected individual
If you fail to comply with any of the provisions of the restraining order against you, you could be accused of violating your restraining order under California Penal Code Section 273.6.
Restraining Order Types in California
Not all restraining orders have the same provisions. There are different types of restraining orders that could be issued by California courts. Protective orders in California fall into four different categories:
- Domestic violence restraining orders – Domestic violence restraining orders protect individuals from abuse or threats of abuse from someone with whom they have a close relationship. Domestic violence restraining orders may be filed by married or registered domestic partners, spouses, significant others, former spouses and significant others, and co-habitants. Children who are 12 years of age or older can file a restraining order on their own. Domestic violence restraining orders may also be filed by someone else on behalf of a child.
- Civil harassment restraining orders – Civil harassment restraining orders are generally filed when the person involved is not eligible for a domestic violence restraining order. They may be filed against neighbors, roommates, co-workers or extended family members. These types of protective orders 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 orders – Elder or dependent adult 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 or deprivation can file for these types of restraining orders.
- Workplace violence restraining orders – Workplace violence restraining orders are filed by employers who wish to protect employees from violence or threatened violence in the workplace.
No matter what type of restraining order has been issued against you, you should seek the advice of an experienced restraining order lawyer to help you understand the provisions of your protective order.
Levels of Protection for Criminal Restraining Orders
In addition to the different types of restraining orders courts could issue in California, there are different levels of protection that apply to criminal protective orders. The three levels of protection offered to applicants who file restraining orders include:
- Emergency Protective Orders (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. These types of protective orders are commonly issued in domestic violence cases. Typically, a police officer responding to the scene will request an EPO. An emergency protective order lasts for seven days and can be replaced by a more permanent court order after its conclusion.
- Temporary Restraining Orders (TRO) – A temporary restraining order can be requested by the prosecution in a criminal case. If granted, a TRO 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 (PRO) 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 of the case.
Which level of protection will be granted in your case depends upon the level of danger the alleged victim is facing or believes to be facing.
The level of protection granted for a restraining order against you is very important. It could impact where you can go and who you can contact. That is why you should speak to an experienced restraining order lawyer right away if someone is seeking to obtain a restraining order against you.
How a Restraining Order is Served
When the court decides to grant a restraining order, a date and time for a hearing will be set. Once the hearing is set, the restraining order papers must be delivered (or “served) to the respondent. The reason for “serving” someone with restraining order papers is to put them on notice that a petition has been filed against them.
Restraining order papers 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 petition. Once served, the respondent generally has between 10 to 20 days before the hearing date in which to respond to the petitioner’s statements.
Without proper service to the respondent, the court cannot issue a permanent restraining order. A law enforcement officer or a process server can serve restraining order papers, but they cannot be served by mail.
What Happens if You Violate a Restraining Order? (273.6 PC)
If a restraining order has been granted against you and you fail to comply with the terms of the restraining order, you face serious consequences under 273.6 PC. However, the court must first find that you indeed violated your restraining order.
In order to do so, a restraining order violation hearing is held. At the hearing, the prosecution must prove all of the following elements in order for the court to determine that you did in fact violate your restraining order:
- A judge issued a restraining order against you
- You had knowledge that the restraining order was issued against you and you knew the terms and conditions contained in the order. It is important to note that the prosecution does not need to prove that you read the terms and conditions of the restraining order, only that you were familiar with those terms and conditions.
- You had the “present ability” to follow the order. The court order must be tailored in a reasonable fashion that avoids placing unjust or prejudicial restrictions on your liberty. Therefore, if the terms of the restraining order make it impossible or impractical for you to comply, then you can challenge the legality of the restraining order terms by hiring an experienced restraining order lawyer.
- You intentionally violated the restraining order. In order for a court to rule that you violated a protective order, the court must show that you knew of the order’s terms and chose to violate them anyway. An accident or inadvertent violation of a restraining order is not enough to convict you of a restraining order violation under 273.6 PC.
Penalties for Violation of Restraining Orders (PC 273.6(a))
If it is determined that you violated a restraining order against you, you could face criminal charges. Under 273.6 PC, a violation of a restraining order is considered a “wobbler” offense in California, which means it could be charged as a felony or a misdemeanor. How you will be charged depends upon the facts of your case and your criminal history.
You face up to 364 days in county jail and up to $1,000 in fines if you are convicted of a misdemeanor restraining order violation. A felony restraining order violation carries 16 months, two or three years in county jail and fines of up to $10,000.
There are also other additional factors that will be considered when determining your punishment for violating your restraining order, including whether the victim sustained injuries and whether you have previously been convicted of a crime or violation of restraining order.
For example, if your restraining order violation resulted in physical injury being caused to the victim, you could face a mandatory minimum of 30 days in jail.
Can You Own a Gun if You Have a Restraining Order Against You?
If you have a restraining order in effect against you, it is illegal for you to own, possess, buy or otherwise obtain a firearm. If you own weapons, you will be required to either surrender your weapons to a local law enforcement agency or sell them to a licensed gun dealer in order to be in compliance with the protective order.
Knowingly possessing a firearm while a restraining order is in effect against you could lead to serious criminal charges under California Penal Code Section 29825. This type of restraining order violation is a wobbler offense. If you are convicted of a misdemeanor, you face up to 364 days in county jail and a $1,000 fine. A felony carries a sentence of up to three years in prison along with the same fine.
Can You Get Probation for Violating a Restraining Order?
You may be eligible for probation if it is found that you violated your restraining order. During your probationary period, you must not violate any law (other than traffic infractions). You will also have to follow some strict terms and conditions, which could include:
- Making frequent required visits with a probation officer
- Performing community service
- Reimbursing victims for expenses resulting from your violation
- Undergoing mandatory counseling, and
- Making payments to a battered women’s shelter or paying restitution to the victim for medical expenses that were incurred as a result of the offense
Failing to comply with any of the terms and conditions of your probation could result in your probation being revoked and you being sentenced to the maximum custody time allowed under the law.
Restraining Order Violation Defenses
If you are accused of violating a restraining order, you should contact an experienced criminal defense attorney immediately. Our skilled lawyers at Wallin & Klarich have been successfully representing clients in restraining order matters for more than 35 years. We understand the valid legal defenses to an accusation of a restraining order violation.
Here are some of the defenses our restraining order lawyers have used to successfully defend clients who were accused of violating a protective order:
Defense to Violation of Restraining Order: Lack of knowledge
To convict you of violating a restraining order, the prosecution must prove that you had knowledge about the existence of the protective order. If you did not know that a restraining order was issued against you, you cannot be convicted of intentionally violating it.
This defense applies to cases where you were not present when the restraining order was issued. Your restraining order lawyer can attempt to prove lack of knowledge by showing that you did not receive notice that the restraining order was issued against you. For example, if the protective order was erroneously served to someone else, you cannot and should not be penalized for violating the restraining order.
Defense to Violation of Restraining Order: Lack of intent
To be found in violation of a restraining order against you, it must be proven that you intentionally violated the restraining order. Therefore, it is a valid legal defense if you accidentally or inadvertently violated a term of your restraining order.
How can someone violate a restraining order by accident? Let’s say the protective order prohibits you from being within 100 yards of the protected person. You go to see a movie one night without any knowledge that the protected individual is also going to the same theater. Under these facts, you should not be found guilty of violating a restraining order because you did not intentionally come within 100 yards of the protected person.
Defense to Violation of Restraining Order: Inability to Follow the Protective Order
Sometimes the court will impose terms of a restraining order that are virtually impossible for the restrained individual to follow. That is why you cannot be convicted of violating your restraining order if you did not have the “present ability” to follow the court order.
For example, the court issues a restraining order that requires you to avoid a certain road that passes through the alleged victim’s neighborhood. However, this is the only road available to reach your residence and you cannot gain access to the highway except through its use. It is unreasonable and unfair to require you to avoid the only access route. Thus, the court will likely rule that you did not have the present ability to comply with this term of the restraining order.
In this type of circumstance, your criminal defense attorney can argue for the restraining order violation charges to be dismissed and the terms of the restraining order to be revised.
Defense to Violation of Restraining Order: The Restraining Order was Issued Unlawfully
The prosecution must prove that the restraining order was issued lawfully in order to convict you of violating your restraining order. Your restraining order lawyer may be able to argue that the protective order is invalid because the court lacked the jurisdiction to issue such an order, or that the facts on which the order was based are clearly false or misleading.
If the court lacked jurisdiction to issue the restraining order or issued the order based on false or misleading information, it could be considered invalid, and if so, you would not be bound by its terms.
Defense to Violation of Restraining Order: False Allegations
If you have been wrongfully accused of violating a restraining order, you should contact an experienced criminal defense attorney to fight the allegations aggressively.
Our lawyers see false allegations of restraining order violations very often when the client is going through a contentious divorce or child custody matter. The protected person may falsely claim that the restrained individual violated the order as a way to get revenge on the person or to get a leg up in the child custody matter.
FAQs Regarding Restraining Order Violations
Will I have to move out of my house if a restraining order is issued against me?
If a restraining order is issued against you, it likely states that you must stay a certain distance away from the protected person. If you live with the protected individual, it means you or the protected person will have to move out for as long as the restraining order is in effect.
I have been served with a restraining order. What happens if the victim contacts me?
If the terms of your restraining order forbid you from making contact with the victim, you should try to avoid any contact with the protected person at any cost, even if it is the victim who is contacting you. A restraining order is aimed at restricting your conduct, not the victim’s conduct. Thus, only you can be convicted of violating its terms under 273.6 PC.
If the victim wishes to remove the restraining order, he or she must contact the court and request that the order be lifted. You should never speak or communicate with the alleged victim in any way until you have verified that the restraining order has been officially lifted by the court.
If I think that a restraining order is invalid should I just ignore it?
No, you should never simply ignore a restraining order issued by the court. All orders issued by the court must be obeyed, even if you believe the orders are invalid. If you fail to obey a court order, you could face criminal penalties.
If you believe that a restraining order is invalid, based on false information or was improperly served, you should contact an experienced restraining order lawyer who can advise you on how to proceed without being in violation of the restraining order.
Does sending someone a message on Facebook violate a restraining order?
Yes, if the court has ordered you to make no contact at all with the protected person, it includes making contact via social media. You should not only refrain from messaging the individual on Facebook, Twitter, Snapchat and all other social media networks, but you should also avoid mentioning the protected person at all in your own status updates and “liking” the protected person’s posts.
Is violating a restraining order charged as a misdemeanor or felony in California?
Typically, violating a restraining order is charged as misdemeanor if it is your first violation. However, if you have previously been convicted of violating a restraining order within the past year or the alleged victim sustained physical injury as a result of the offense, your violation can be charged as a felony restraining order violation. The offense can also be charged as a felony if it is your second violation within seven years and involves violence or threats of violence.
Who can lift a restraining order?
Only a judge can lift a restraining order. However, you may be able to request that the court lift the restraining order against you. For the court to grant this request, your restraining order lawyer must show that you are no longer a threat to the person who obtained the restraining order.
Additionally, the protected person could file a motion with the court to have the restraining order lifted if he or she believes the protective order is no longer necessary.
What happens when a restraining order expires?
Domestic violence restraining orders may last for as long as five years. When the restraining order is nearly expired, the protected person can ask the court to renew the restraining order for another five years or permanently. The court will decide whether to renew the restraining order based on whether or not there has been any more violence or threats of violence.
Do employers have the ability to see that a restraining order was issued against me?
Restraining orders are public record, which means anyone can access such information if he or she knows where to look. However, employer background checks conducted on potential employees vary in terms of their thoroughness and the type of information the individual employer is attempting to access.
Luckily, restraining orders are not considered a criminal conviction, and thus will not appear on a background checks aimed solely at discovering your criminal history. In addition, civilly issued restraining orders are unlikely to appear during a background check as most employers do not attempt to access your family law or civil records. Nonetheless, there is no law that prevents employers from accessing restraining order information if they so desire.
Where Can I Find an Experienced Restraining Order Lawyer Near Me?
Having a restraining order issued against you can affect where you can be and it could make your life more difficult. You face severe consequences for a violation of restraining order, including potential jail time and expensive fines. That is why you should contact an experienced restraining order lawyer immediately if you are accused of violating a restraining order.
At Wallin & Klarich, our skilled and knowledgeable attorneys have more than 35 years of experience successfully representing clients in restraining order matters. We can help you now if you have been accused of a restraining order violation.
With offices in Orange County, Riverside, San Bernardino, Victorville, West Covina, Torrance, Los Angeles and San Diego, there is an experienced Wallin & Klarich restraining order lawyer available to help you no matter where you work or live.
Contact our restraining order law firm at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation regarding your case. We will be there when you call.