A restraining order is generally sought in cases where one person claims to be abused by the other. Once someone else files this kind of order against you, your life could significantly be impacted since you may be required to adhere to strict terms and conditions like not contacting your loved ones. It takes a lot of effort, self-control, and self-discipline to adhere to all the terms of a restraining order. You could be tempted or duped into violating the order by doing what it prohibits.
However, sometimes you may make all the effort and have the necessary discipline and self-control not to break the restraining order terms and conditions but still be accused of doing it. For example, the victim may dupe you into violation by meeting with you and call the police on you. Note that despite the victim tricking you into violating the order, you are the one in trouble with the law and may face criminal charges.
If you're alleged to have violated a court-issued restraining order, you need to reach out to a lawyer right away, as you could be facing wrongful accusations. If you're facing charges in Bakersfield, CA, at Koenig Law Office, we are readily available to help you. We have restraining order defense attorneys with extensive knowledge and understanding of California laws. We will fight to achieve the most favorable outcome for the case against you. Even if it isn't a false accusation, our lawyers will study your case for facts and reasons that resulted in your charges and build a solid defense strategy.
What’s a Restraining Order?
Also called protective orders, restraining orders are court orders sought to protect people (the protected individuals) from being physically/sexually abused, stalked, threatened, or harassed by others (the restrained individuals). In California, protective orders may include:
Residence exclusion orders—these orders are also called move-out or kick-out orders. They order the restrained individual to move out of the home where the protected individual lives. The orders permit the restrained person to remove only his/her personal belongings and clothing until the court hearing.
Stay-away orders—a stay-away order orders the restrained individual to maintain a particular distance or space from the victim and stop going to the various locations they frequent. These locations include but aren't limited to the victim's home, workplace, vehicle, and child care or school that the protected individual's children attend.
Personal conduct orders—a personal conduct order is meant to prohibit the restrained individual from committing given acts against the alleged victim. It may include several protected individuals, for instance, members of the same family or people residing in the same household. Examples of actions that the restrained person may be directed to stop are:
Harassing, threatening, stalking, or physically/sexually assaulting the protected party.
Making any kind of contact with them, including messaging, emailing, or calling them.
Destroying their property.
Disturbing the peace. Disturbing the peace is a broad concept that includes acts like continued harassment and contact or coming to the protected individual's home and making a scene.
There are four kinds of protective orders, namely:
Workplace violence protective orders — these types of orders are meant to protect workers from violence, threats of violence, or harassment at the place of work. The employer has to ask for this form of restraining order to protect their worker.
Civil harassment protective orders — these orders are issued to protect people being abused, threatened, or stalked by individuals with whom they don't have any close relationship as what's required to constitute domestic violence. The restrained individual could be a relative such as an aunt, uncle, nephew, niece, or cousin. This kind of protective order could also be issued against an acquaintance, neighbor, or roommate.
Dependent adults/elders abuse protective orders—any person 65 years and above or a person over eighteen years with physical or mental disabilities that prevents him/her from being incapable of protecting or taking care of themselves can seek a protective order. The order protects them from any abandonment, neglect, financial harm, mental abuse, physical abuse, or poor treatment by a caregiver denying them basic services or needs.
Domestic violence protective orders (DVROs) — DVROs are used whenever the restrained individual is someone the protected individual has a close relationship with and has abused them. It could be a domestic partner or spouse, a person with whom the protected party had a child or romantic relationship, or someone who is otherwise closely related ( family member)
Regardless of what kind of protective order is issued, you ought to seek advice from a skilled restraining order attorney to assist you in understanding the terms and conditions of your restraining order.
Protection Levels for Restraining Orders
Apart from the different kinds of protective orders that courts may issue, different protection levels apply to restraining orders. There are three protective levels provided to persons that request protective orders, including:
Permanent Restraining Order (PROs) — a permanent restraining order restricts you from coming into contact with the alleged victim and can last for as long as five years. A permanent court order significantly restricts your freedom. For this reason, it is a requirement that the court schedules a hearing which allows the defense (you) and the DA to present your cases. Afterward, the judge weighs the evidence against and supports issuing the order and conditions of that based on the facts forming the case.
Temporary Restraining Orders (TROs)—a TRO can be sought by the prosecutor in criminal cases. If granted, this order remains valid until the case ends. A TRO temporarily protects a person until a court hearing to decide whether or not a permanent court order should be issued is conducted or until the case ends.
Emergency protective order (EPO) — an EPO provides interim/short-lived protection to the victim while they're in the process of applying for a PRO. These kinds of restraining orders are common in domestic violence cases. Generally, an officer responding to the scene requests an EPO. An EPO is good for seven days, and the victim can replace it by seeking a permanent court order when it expires.
The kind of protection level granted is dependent on the extent of danger or threat the supposed victim faces.
The protection level granted for an order is crucial. It may significantly impact who you can interact with and the places you can go. That's why you ought to reach out to a knowledgeable restraining order attorney immediately if anyone is looking to acquire a protective order against you.
Restraining Order Violation
When a judge issues a protective order against you and you violate it, you can face criminal charges. The crime of restraining order violation is set forth under PC 273.6 and is often charged in connection with domestic violence. Per this law, it's an offense to knowingly and intentionally violate a legally issued restraining order.
You violate a restraining order by doing the acts it prohibits you from doing. For instance, if the order dictates that you shouldn't contact the victim, but you continue to call or send them text messages, you would have violated the protective order law. The same goes for if the order prohibited you from using threats and force against the victim, but you threatened them to terminate the order.
Elements of the Crime
Elements of the crime are the facts the prosecuting attorney must prove beyond any reasonable doubt for a conviction to occur. In this case, therefore, the DA has to substantiate the following facts to be convicted of restraining order violation:
A court did issue a protective order stating you have to stay away from a specific person or refrain from a particular act.
You knew the order existed.
You were capable of complying with the order.
You willfully disobeyed the order.
As it pertains to knowledge, you must've known that the court issued an order for you to be guilty of its violation. This entails having a chance of reading the protective order (regardless of whether you read it or not). You commit an act willfully when you do it on purpose/willingly.
Remember that when you break another law while violating a court-issued protective order, the judge can convict you under both the protective order violation statute and the law governing that other offense.
Legal Defenses to PC 273.6
If you're accused of protective order violation, your defense lawyer may help you obtain the best possible charges by arguing the following legal defenses:
If you've been wrongfully/falsely accused of violating the terms of a restraining order, your lawyer should fight those allegations aggressively. Wrongful accusations are very often in child custody and divorce cases. The victim may wrongfully claim that you violated the protective order to take revenge on you or have the upper hand in the custody matter.
The Protective Order was Unlawfully Issued
The DA has to show that the protective order was lawfully issued for the judge to find you guilty of violating it. Your protective order attorney may argue that the order is invalid since the facts on which the order was based are misleading or false, or the court didn't have the jurisdiction to issue you the order. If the court didn't have the authority to issue a protective order or did issue an order based on misleading or false info., it may be deemed invalid, and if that's the case, you wouldn't be bound by its terms.
Inability to Comply With the Order's Conditions
At times a judge imposes protective order conditions that are impossible to follow. That's why you can't be punished for restraining order violation if you were incapable of complying with the order requirements.
For instance, a judge might issue an order that needs you to stop passing a given route that passes via the victim's neighborhood. Nevertheless, that's the only available roadway to take you to your home, and you can't access the main road unless you use it. It's unjust and unreasonable to order you not to use the only route. Therefore, the court is likely to understand that you were incapable of adhering to this term of the order.
Under these circumstances, your lawyer could fight to have your charges dismissed and new terms set.
For you to have violated a protective order, the prosecution has to demonstrate that you intentionally violated that order. Thus, it's a valid defense if you inadvertently or accidentally violated any term or condition of the order.
How can you accidentally violate the order? Suppose the order forbids you from being anywhere within a hundred meters close to the victim. One night you decide to go to the movies without knowing the protected person is also there. Under these circumstances, the judge shouldn't find you guilty under PC 273.6 since you didn't deliberately come within a hundred meters of the protected individual.
You Didn't Know
For the judge to find you guilty under PC 273.6, the prosecutor has to show that you knew the order existed. If you weren't aware that a court issued a protective order against you, you're not guilty of intentionally or knowingly violating it. Your attorney can argue your lack of knowledge by demonstrating that you weren't notified that the court issued a protective order against you. This legal defense is used in a situation where you weren’t present when the judge issued the order. For instance, if the order meant for you was mistakenly served to another person, you can't and shouldn't be punished for violation of the order.
Possible Penalties for Restraining Order Violation
Violating a protective order is mostly a misdemeanor crime. Its punishments include up to $1,000 in fines and a period not exceeding a year in jail. Note, however, that this criminal offense turns out to be a wobbler offense if it's your second offense for a protective order violation and that violation involved a violent act. Wobblers are criminal offenses that the DA can charge either as a felony or misdemeanor. If guilty of a felony, you will be subject to a fine of not more than ten thousand dollars and a period not exceeding three years in California State prison.
Probation for Violation of a Protective Order
You could be sentenced to probation instead of a jail sentence if you're found guilty of violating a protective order. During the probation period, you mustn't violate any statute (apart from traffic infractions). You'll also need to obey various strict requirements. These requirements could include:
Making frequent necessary visits with a probation officer.
Undergoing compulsory counseling.
Making payments to a battered women's shelter.
Failure to comply with these requirements could make the judge cancel your probation sentence and reinstate the original sentence you would have faced per the law.
Owning a Gun If You Have Been Issued With a Protective Order
When you have a protective order against you, it's unlawful to possess, buy, own, or otherwise acquire a gun. If you possess or own weapons, the court will require you to either sell them to a licensed firearm dealer or surrender them to a local law enforcement agency to adhere to the restraining order.
Knowingly owning a gun while there's a protective order against you may lead to severe criminal charges per PC 29825. This kind of protective order violation is charged as a wobbler. If it’s a misdemeanor conviction, you'll be subject to a maximum of one year in jail and up to $1,000 in fines. A felony is punished by a prison sentence of a maximum of three years and up to $1,000 in fines.
In many cases, violating a restraining order won't affect your immigration status. There are instances when a conviction of a crime makes an immigrant defendant deported from the United States or labeled as inadmissible to the United States, for example, when the accused is guilty of an aggravated felony. Violating a court-issued protective order, however, isn't generally considered this kind of crime.
Protective Order Violation and Background Checks
Protective orders usually don't appear on criminal background checks because they're practically civil matters. However, if you violate the order, the violation will show up in criminal background checks.
Find a Bakersfield Criminal Defense Attorney Near Me
Note that a court-issued protective order always protects the victim. Thus, you need to comply with all its terms even if the victim tricks you into violating it because it is you who will be in trouble with the law. Upon conviction, the penalties for violating a protective order aren't lenient. Thus, you need help from an experienced defense lawyer once charged to increase your chances of avoiding a conviction.
If facing these charges in Bakersfield, CA, at Koenig Law Office, we will help you. For several years, we've helped thousands of people obtain favorable results in their criminal cases, protective order violation cases included, thanks to our knowledge of California law and the capability to develop a world-class defense. Contact us at 661-793-7222 for a free case evaluation and consultation.
Dial (661) 793-7222 now to begin planning your defense.