A restraining order or protective order is a court-issued mandate intended to protect victims from being harassed, intimidated, stalked, or physically abused by an individual who is mentioned in the order. Typically, the restraining order prohibits a person from making any type of contact with the victim, including emails, text messages, phone calls, or coming within a certain distance of the person. Restraining orders also forbids using a third party to make indirect communication. If the order has your name as the restraining party and you deliberately disregard the terms of the order, you can be charged with a violation of a restraining order as described under California Penal Code Section 273.6 PC. Violation of PC 273.6 is also known as contempt of court. If you are facing these charges, you need to retain an experienced restraining order attorney immediately. Contact the skilled and experienced attorneys at Justin Lo Law at 310-284-7385.
Generally, there are four types of protective orders or restraining orders that can be issued by the courts:
- Domestic violence restraining orders: These restraining orders are issued to protect victims who have suffered abuse or threats of abuse from a person they are closely related to. These types of restraining orders are mostly filed by spouses, former partners or spouse, married or registered domestic partners, boyfriends or girlfriends. Also, the protective order may be filed on behalf of a child.
- Civil harassment restraining order: These orders may be filed and issued against co-workers, roommates, neighbors, extended family members, and any other person with whom you are not close. These types of restraining orders may be filed in cases where there is unlawful violence such as stalking, threat of violence, assault, and battery.
- Elder or dependent adult abuse restraining orders: Requested and issued to protect individuals who are 65 or older or those adults between 18 and 64 who have mental and physical incapacities and cannot take care or protect themselves. Independent individuals or elderly adults can file these types if they are victims of hurtful treatment, neglect, abuse, and deprivation.
- Workplace violence restraining orders: In this category, the request is made by an employer who wants to protect employees from workplace violence.
Individuals who have requested and obtained any type of protective order can request for different levels of protection depending on the level of danger they believe they face, their particular circumstances, and specific facts of their case. Restraining orders come in three categories:
Emergency Protective Order (EPO): Just as the name suggests, these orders are issued in an emergency. The purpose an EPO is to provide short-term protection to the victim while the case is being investigated. Typically, these types of orders are requested by the police responding to a domestic violence call. If the police officer has reasonable belief or evidence that someone is in danger, he or she will get hold of a judge who is on call requesting for an emergency protective order. Once the EPO is issued, it takes effect immediately and the officer will inform the offender of its presence. This order only lasts for up to 7 days and upon its expiry, you will need to appear before a judge to request an extension, which may be temporary or permanent order.
Temporary Restraining Orders (TRO): TROs are restraining orders requested after the expiry of an emergency protective order or by individuals who are victims of harassment. “Harassment” in this case refers to any behavior that would cause or has caused an individual to suffer substantial emotional distress, behavior that alarms of annoys another individual, or any act of violence or threat of violence. A TRO can also be requested by the prosecution and stays in effect until the case is concluded. Before a temporary restraining order expires, a hearing will be held in court in order to determine if a permanent restraining order should be issued.
Permanent Restraining Order (PRO): If after the hearing, the court believes that the person applying for the order is in danger and needs extended protection, a Permanent Restraining Order will be issued. However, before that happens, the court will hear from both the alleged victim and the defendant. The judge will determine the specific types of restrictions to include in the order as well as the length of the order. Typically, a TRO can last for up to 5 years and restricts the person named in the document from making any contact with the victim. Once the order starts to take effect, the restrained individual will be required to secure a new residence, maintain a certain distance from the protected party, refrain any contact with the protected party, turn in any weapons and not acquire new ones, and in some case, pay the attorney’s fees of the alleged victim.
When the court issues a protective order against you (the restrained person), you are required to adhere to its every terms and conditions. Prosecutors may charge you with a PC 273.6 violation if you knowingly violate any of the terms and conditions. To prove you guilty of violating a restraining order, the prosecutor must show that:
- A judge issued a legal protective order
- You knew that a protective order was issued against you;
- willfully and intentionally disregarded the terms of the order
Let’s examine the elements more closely.
Legal protective orders are supposed to be followed to the letter. The prosecutor is required to prove that the order was legal for you to be convicted. However, some restraining orders some restraining orders can be illegal. This means that either there was no legal basis to issue the order or the judge who issued the order did not have the jurisdiction or authority to issue it. You are therefore not bound by the terms and conditions of an order if it is illegal. If you believe that the order is illegal or invalid, contact an experienced defense attorney who can help you challenge its existence as it’s much easier to persuade the court before you are arrested for failing to obey a judge’s orders.
The prosecutor is also required to prove that you knew that there is a restraining order against you. In California, one must be served with the order papers in order to notify them that a restraining order has been filed against them. The orders will contain the date and time when the petition was filed and when the hearing was conducted, and a statement of the action requested. This notice may be served verbally by a police officer, in writing by a third-party, or orally by the judge in court if the person to be restrained is present. Important to note, service cannot be mailed and the order is invalid if the service was not properly done, or the individual to be restrained never receives any notification.
Acting willfully means doing something on purpose or intentionally. If you know that you are required to refrain from making any contact with a certain individual and you choose to violate the terms of the protective order on purpose, you are guilty of PC 273.6 violation. For example, if you accidentally run into your ex-girlfriend at a shopping mall, you are not considered to have intentionally violated the terms of the order. On the other hand, if you send a friend to tell her how sorry you are, you're intentionally violating the order given that you are not supposed to make any form of contact.
Violating a protective order or restraining order under PC 273.6 is typically a misdemeanor. If convicted, you can face a fine of up to $1,000 and a maximum of one year in county jail. Moreover, the judge may impose additional penalties which may include restitution to the victim for medical expenses and counseling incurred as a result of your behavior, court fines, payments to a battered woman’s shelter, and mandatory counseling including domestic violence classes, anger management, etc. You may also be required to turn in any weapons and not acquire new ones for as long as the order is in effect. A violation of an order of no firearms can result in an additional charge.
Fortunately, a variety of legal defenses may be used to defend against the charges of violating a restraining order as described in California Penal code 273.6 PC. A skilled and experienced criminal defense attorney could assert these defenses to your advantage. Some of these defenses include:
- Lack of Knowledge
If you have been named in the restraining order, you must be notified. You cannot be found guilty of violating a restraining order if you were unaware of its existence. This defense works better if the defendant was not present when the order was issued in court or when an officer told the victim that he/she has an emergency protective order at the scene. Since service of a restraining order can be issued by a police officer or another third-party, it is possible for the wrong person to be served. Your attorney can assert that you are not responsible for violating the order since you were never aware of it.
- Lack of Intent
You can claim this defense if you violated the terms of the order inadvertently or accidentally. If for instance, you unwittingly bump into the protected person at a social function, you shouldn’t be held criminally liable for violation of the order. However, it is important to note that you can be deemed to have violated the order if the protected person contacted you and you agreed to meet up. It’s only the judge who has the discretion of lifting the terms of an order. This means that even if the victim has withdrawn the orders, you must nevertheless comply until the judge terminates it.
- False allegations
A restraining order may be issued in the midst of a child custody, divorce or any other contentious battle. False accusations may also be brought about by motives such as anger, jealousy, or the need for revenge. On that note, the protected individual may raise false allegations claiming that you violated the order for instance by stalking him/her, calling, or any other acts that may not produce physical proof. But do not despair. In our experience, we have seen the protected parties try to use this tactic to get back at the defendant. We will put all our efforts into investigating your case in order to reveal the truth and expose the false allegation for what they really are. We will fight for you and clear your name.
To be convicted of this offense, you must have the present ability to follow the protective order. This means that you have the ability to act as stated in the order. However, if you are incapable of complying, your defense attorney can argue the facts out for the terms of the order to be revised and the charges to be dismissed. To illustrate this defense, let’s look at an example: The restraining order issued by the court requires you to avoid being close to the alleged victim’s neighborhood at all costs. However, the only road you can use to gain access to the highway passes right through the neighborhood that you should never be seen close to. In this case, you cannot avoid the only access and it’s unreasonable and unfair to charges you for violating a restraining order. Your attorney can argue that you had the inability to follow the court order.
Contact Justin Lo Law
In addition to the penalties, a charge can affect your ability to successfully negotiate custody arrangements or secure employment. If you’ve been charged with violating a protective order, it’s paramount that you seek legal counsel with a criminal defense attorney right away. At Justin Lo Law, we have an extensive track record in successfully defending those accused of violating a restraining orders. We'll fight nail and tooth to get you the best possible outcome for your case. We serve in the Long Beach and Torrance area. Contact us today any time 24/7/365 at 310-284-7385 for a free consultation.