Someone may request a restraining order if he/she feels threatened by another person or fears for his/her safety or the safety of other family members. The threatened person may request a California court to issue a restraining order against the alleged defendant. If the court issues a restraining order against you, you will not be free to visit certain specified places in the court order. By restraining you from being in certain areas and from being around certain people, the order could affect your day-to-day activities. It is a criminal offense to go against the requirements of a restraining order. A violation could lead to penalties like imprisonment or hefty fines. If you have violated a California restraining order, the Orange County Criminal Lawyer could assist you in fighting any charges.
Understanding the Basics of a Restraining Order
When the court issues a restraining order against you, it is imperative to understand the new limitations on your way of life. You should take the time to understand the restraining order and its requirements. If you understand the order, you could defend yourself if the plaintiff accuses you of violating the terms of the order. Immediately you are accused of violating a restraining order; you should contact a competent attorney. Your attorney could help you understand the legal defense options available.
According to California statute, PC 273.6, it is a crime to violate a restraining order intentionally. Therefore, if you did not act intentionally while violating the restraining order, you might evade charges. It is important to understand that violating the restraining order does not imply that you are formally guilty. Before convincing the court that you are guilty, the prosecutor must prove various elements of the crime.
For instance, the prosecutor must prove that the said restraining order is legal. The prosecutor must also convince the court that you were aware of the existence of the restraining order. Lastly, it should be apparent that you acted intentionally at the time of violating the restraining order. Therefore, you cannot face charges if you were not aware that a restraining order against you existed. you cannot be guilty if you did not intend to violate the restraining order. For instance, you could have violated the restraining order accidentally by visiting a place you would not expect the other party to be.
A Legal Restraining Order
A restraining order has to meet specific requirements to be legal and valid. You cannot be guilty of violating an illegal or invalid restraining order. A judge should issue a legal restraining order, and the order should have a probable cause. Some of the probable causes that could trigger a restraining order include violent behavior towards the victim or threatening them.
Knowing that a Restraining Order Exists
You cannot violate a restraining order unless you know it exists. How does the court determine whether you were aware of the restraining order’s existence? The court may consider you know the existence in various ways, including:
- You were present at the time of issuing the restraining order. Usually, the judge issues a restraining order during a court hearing. At the hearing, both the victim and the defendant might be present together with their attorneys. At the hearing, the judge explains to the defendant that a restraining order has been issued against him/her. The judge also explains the requirements or the conditions of the order, which the defendant should follow. If you were present during the issuing of the restraining order, you can't claim that you did not know the order existed.
- You received a copy of the restraining order. You cannot claim that you didn't know about the existence of the restraining order if you received a copy of the order. Typically, a defendant gets a restraining order through his/her most recent address on file. Upon sending a First Class mail to your address, the court assumes that you know about the restraining order.
- A law enforcement officer informed you about the restraining order verbally. A law enforcement officer who may have been present when you committed a violation against the victim could tell you about the issuance of a restraining order against you.
In some instances, you may not have been present in court during the issuance of the restraining order against you. In addition, you might not have received any mail or notice informing you about the order.
If you happen to be near the protected person, who, in turn, calls the police, the police will take specific steps. When the police show up, they would determine that you were not aware that a restraining order existed. The police can verbally inform you about the restraining order and its conditions. Upon gaining this knowledge, the law will consider you aware of the restraining order. Therefore, if you commit subsequent violations, you will be guilty. However, you will not be guilty of violating the restraining order if you had no knowledge.
Other than being aware that a restraining order existed, you should also have had an opportunity to read the contents of the restraining order. It should be apparent that you had ample time to read the contents of the restraining order. However, this requirement does not imply that you must have read the entire restraining order. The court will assume that you had read the restraining order as long as you had the time.
Intentionally Violating a Restraining Order
As outlined earlier, you can only be guilty of violating a restraining order if it’s intentional. There are many instances where you could inadvertently violate a restraining order. However, you will not be guilty if you take neccessary actions to rectify the situation. For instance, if you come across a protected person in a public place like a zoo or a restaurant, you should leave immediately. If you continue staying around the protected person, it might be hard to prove that the violation was accidental.
Seeking a Restraining Order
Certain people may apply for a restraining order if they feel that they are at risk. A restraining order could protect:
- A spouse from the abuse by the other spouse
- An ex-spouse from abuse by the other party after separation or divorce
- An intimate partner from abuse from a boyfriend or girlfriend
- A child, or children against the abuse from parents or other relatives
Sometimes, the court could issue a restraining order even if you do not know the plaintiff. A restraining order could protect persons from parties with whom they did not share an intimate relationship. For instance, the court may issue a restraining order to protect neighbors or co-workers.
The court may issue a restraining order if the victim reports certain types of behavior from the defendant:
- Physical Abuse
Physical beating and other behavior like destroying the victim’s property could prompt the court to issue a restraining order against you. The court might also issue a restraining order if you keep calling the victim repeatedly to threaten him/her. Other conducts that could lead to the issuance of a restraining order include harassing the victim at social gatherings or work.
In most cases, restraining orders arise from stalking. You could be guilty of stalking if you follow the victim or often visit the victim’s house and peek into windows. You might also be guilty of stalking if you send unwanted gifts or objects to the victim. Other intrusive behavior like stealing the victim’s mail and hanging out at the protected person’s place of work could qualify as stalking.
With the development of modern communication, stalking could take place through sending emails or text messages to the victim. A defendant could also post false or embarrassing incidents about the victim on social media platforms.
If the court issues a restraining order against you, you have to stop contacting the victim, meeting the victim in person, or posting the victim’s information on social media platforms. Failing to abide by the requirements of a restraining order could lead to an arrest on the grounds of contempt court.
Types of Restraining Orders
There are three types of restraining orders under California law. Violation of any of the three restraining orders will lead to charges under PC 273.6. The restraining orders are:
- Emergency Restraining Order- This order mainly applies to domestic violence incidents. When a victim contacts the law enforcement officers after an assault by the defendant, the officer may call the judge and request an emergency protective order. The order will limit further contact between the alleged defendant and the victim. In most cases, an emergency restraining order lasts for seven days.
- Temporary Restraining Order-After the seven days of an emergency protective order, a victim has to apply for a temporary restraining order. All the victim has to do is fill an application form and demonstrate what he/she is experiencing. For instance, the victim could demonstrate that he/she is experiencing a threat of violence or harassment from the defendant. The victim could also apply for a restraining order based on annoying behavior without legitimate purpose from the defendant. As long as the defendant is making the victim experience circumstances that could make a reasonable person experience emotional distress, the court could issue a restraining order.
- Permanent Restraining Order - The court cannot issue a permanent restraining order before holding a hearing. The defendant should be present during the court hearing. At the hearing, both the victim and the defendant will have a chance to tell their sides of stories in court. The court considers the conduct of the defendant and the harm or emotional distress experienced by the victim. If the court decides to issue a restraining order, the court decides on the duration and the conditions of the order. A permanent restraining order could last for up to three years. The court might decide to extend a restraining order if necessary.
After the issuance of a restraining order against you, you will have no further contact with the victim, either physical or electronic. You also have to maintain a certain distance, set by the court, between you and the victim or any other person protected by the restraining order. The court might require meeting the victim’s attorney fees. Other conditions could include paying restitution to the victim. A restraining order against you could relinquish ant firearms that you own or possess. The law could prohibit you from possessing or acquiring new firearms.
Consequences for Violating a Restraining Order
The offense of violating a restraining order could be a misdemeanor or felony, depending on certain factors. Some of the factors that the prosecutor considers while assigning charges include your criminal record. If you have a history of committing violent crimes, the court could assign felony charges. The court will also consider if you have prior violations of a restraining order and whether the victim suffered injuries due to the violation.
The first violation of a restraining order is a misdemeanor offense. The consequences for this offense include jail time not exceeding one year in county jail. Other consequences include probation or fines not exceeding $1,000.
The judge has the discretion of recommending other penalties like attending anger management classes and domestic violence courses. If you commit the violation due to drug use or intoxication, the judge might recommend substance abuse counseling. Other penalties might include a contribution to battered women’s shelter and paying restitution to the victim.
If you violate a restraining order and inflict harm on the protected person, penalties will include a minimum of a one-month sentence in the county jail. However, the court can waive the mandatory one-month sentence after you serve the first 48 hours in jail. The court will give this waiver in the interest of justice and other valid reasons
When granting the waiver from mandatory jail-time, the court will consider the nature of the violation and the safety of the victim. The court might also consider the efforts you are making to continue with counseling. Other factors the court will consider are whether you have violated other terms of the order and whether you have completed the counseling.
Subsequent Violations of a Restraining Order
When you commit a subsequent violation of restraining order within seven years from the first violation, the offense becomes a wobbler. Therefore, the prosecutor has the discretion to charge the offense as a felony or misdemeanor. If charged as a misdemeanor, the consequences will include a jail time not exceeding six months. Other consequences include a fine not exceeding $1,000.
If the offense is a felony, penalties include imprisonment in a state prison in California. The imprisonment period could be 16 months, two years, or three years. Other penalties include a fine not exceeding 10,000. The court might also recommend probation and jail time of up to one year in county jail.
You have no authority to possess or own a firearm if you are under a restraining order in California. If you owned or possessed a firearm before the order, the law requires you to relinquish the firearm to the law enforcement officers. You could also sell the firearms to a licensed dealer. If you choose to hide and retain the firearm while under a restraining order, you will get misdemeanor charges.
It is a wobbler offense under California law to buy or attempt to buy firearms while you are under a protective order. If the prosecutor charges this offense as a felony, you could serve a jail term of up to three years in a state prison in California.
Common Legal Defenses
Upon accusation for violation of a restraining order, you should contact an attorney immediately. An attorney can examine your case and help you come up with a valid defense. Some of the common legal defenses that you can employ include:
You Did Not Know That The Order Existed
You can only be guilty of violating a restraining order if you were aware that the order existed. This defense could apply if you did not attend the restraining order hearing and if you did not receive a serving of the order through the mail. The defense could also apply if a law enforcement officer has not informed you about the order. For instance, the order could have been sent using the wrong address or to the wrong person.
The Violation Was Not Intentional
You should have violated a restraining order intentionally for you to face charges. If you did not act intentionally, you can't be guilty of this offense. If you met the victim accidentally, you could assert that the violation was accidental. However, you have to leave the scene immediately after spotting the protected person for this defense to apply. Continuing to remain at the scene could lead to a further violation and render this defense ineffective.
Sometimes, the victim may try to set you up. For instance, the victim could contact you via phone or through other channels requesting for reconciliation or requesting that you should meet and discuss the situation. However, it is not advisable to comply with such requests. You should only agree to any form of contact with the victim after the court lifts or terminates the restraining order.
At times, the protected person could accuse you of violating a restraining order through surveillance, stalking, or other action while you are innocent. With the help of an attorney, you can fight negative allegations against you. The victim will require convincing evidence and testimony to prove that you violated the restraining order. If there is no proof beyond doubt that you indeed violated the restraining order, you cannot face charges.
The Restraining Order is not Legal
Under California law, you should only get charges for violating a restraining order if the order is legal. For a restraining order to be legal, it should have been issued by a qualified court judge and should have been served to the defendant. If you prove that the order is illegal, the court could dismiss your charges.
You Had no Time to Read the Order
You might also fight charges for violating a restraining order by pointing out that you did not have time to read the order and to understand its contents. The court requires the defendant to get a copy of the order and to have ample time to read it. However, if you had time to read the order, but you failed to read it, you will be guilty of this violation.
Violation of Your Constitutional Rights
You can put up the defense after violating a restraining order if you feel that the police violated your constitutional rights. The police could have violated your constitutional rights if they arrested you without a probable reason. If the police mishandled or harassed you at the time of arrest, you could use it as a basis for your defense.
Expungement of the Offense
You could apply for the expungement of your violation of a restraining order offense if the court did not impose time in state prison. After expungement, the offense will no longer appear on your public record and will not be accessible to the public. However, the FBI and other law enforcement officers will still be able to access the record.
Your attorney can assist you in applying for an expungement. An expungement is beneficial because the offense will not show up on your background checks. Therefore, when applying for licensing or employment, the criminal record will not be a hindering factor. You do not have to disclose the offense when making a rental application as well.
Other than not serving time in state prison, you need other qualifications for an expungement. You should have completed all the requirements of your probation and sentence. You should not have committed new or additional offenses. The court takes time to review your criminal record and your need for expungement before granting the expungement request.
Find an Orange County Criminal Lawyer Near Me
The consequences of violating a restraining order could be devastating and might affect many areas of your life. You need an experienced attorney to help fight for your charges. Orange County Criminal Lawyer can evaluate your case and offer the best legal counsel. Reach us at 714-262-4833 and talk to a competent attorney.