When someone feels threatened by another person or fears for the safety of his or her immediate family they may ask a California court to issue a restraining order. A restraining order, if issued, places some legal restrictions on your ability to go about your normal day-to-day activities. Often, restraining orders prevent you from going to certain places or being around certain people. Violating a restraining order can have serious criminal consequences.
If you are the subject of a restraining order – meaning that someone has taken out a restraining order against you – it is important to understand the new limitations on your life. The more information you have about what a restraining order is and when it can be legally enforced, the better you will be able to defend yourself against any claims that you violated its terms and conditions. As experienced criminal defense attorneys, we often receive many questions from clients about restraining orders. For more information, please do not hesitate to contact our office to speak with one of our skilled attorneys.
Basics of a California Restraining Order
California 273.6 PC makes it unlawful to intentionally violate the conditions of a valid restraining order. Just because you are accused of violating a restraining order does not mean that you will be formally charged or convicted of a crime. The prosecution must be able to prove each element of the criminal offense. You can be charged with violating a restraining order if:
- The restraining order of which you are accused of violating is legal;
- You had knowledge of the restraining order; and
- You intentionally violated the terms and conditions of the restraining order.
So, it is a crime to intentionally violate a legal restraining order of which you had knowledge.
Legal Restraining Order
A restraining order can only be violated if it is legal. This means that it was lawfully issued by a judge and is based on probable cause. You cannot be guilty of Penal Code 273.6 PC if the underlying restraining order that you are accused of violating is not legal.
Knowledge of a Restraining Order
You must know that a restraining order exists in order to violate it. How is this element of knowledge satisfied? There are generally three ways that you will be considered to have knowledge of a restraining order.
First, if you are present at the hearing where the restraining order is issued, you will be considered to have the required knowledge. A judge will explain that a restraining order has been issued against you and explain the terms and conditions that you will be expected to follow.
Second, if you are not present at the hearing where the restraining order is issued, you will be personally served with a copy of the restraining order. The restraining order will be sent using First Class mail to your most recent address on file. Once service has been completed you will be considered to have knowledge of the restraining order.
Third, a law enforcement officer who is called to the scene of an alleged violation of the restraining order can verbally inform you that a restraining order has been issued against you. The law enforcement officer has the discretion to determine whether or not you knew about the restraining order when the alleged violation occurred. For example, let’s say that an ex of yours convinced the court to issue a restraining order against you. The order prohibited you from going within 250 feet of your ex’s home. You were not present in court for the hearing and have not received any mail or other notice of the order. You innocently stopped by your ex’s home to drop off something of theirs you found. When you showed up they called the police to report a violation of the restraining order. When the police arrived, they would determine that you had no knowledge of the restraining order. The officer could then verbally inform you of the existence of the order and its contents. You would then be considered to have knowledge of the restraining order, which would be effective for any subsequent violations. You would not, however, be guilty of violating the restraining order for this current incident.
In addition to the general knowledge of the existence of a restraining order, you must also have been given the opportunity to read or understand the contents of the order. You must have been given a reasonable amount of time or the opportunity to read the order. This does not mean that you must have read the order in its entirety.
Intentional Violations of a Restraining Order
Violations of a restraining order must also be intentional. There may be times when you inadvertently and accidentally violate the terms of a restraining order. Generally, as long as you take immediate steps to fix the situation you will not be considered to have intentionally violated the order.
For example, let’s say that the restraining order against you prohibits you from being within 250 feet of your ex at any time. You both end up going to the San Diego Zoo at the same time. When you run into each other at the panda exhibit you realize that you have accidentally violated the terms of the restraining order. You have an obligation to make sure that you immediately take steps to put at least 100 feet between yourself and your ex. This can require leaving the Zoo to ensure that the terms of the restraining order are protected.
You can be required to show proof that the violation of the restraining order was unintentional.
Defenses to Restraining Order Violations
Accusations of restraining order violations can be unfounded. Just because you have been accused of a crime does not mean that you will be charged or found guilty. Hiring an experienced San Diego criminal defense attorney to handle your case is the best way to stop a criminal proceeding before it starts. Defenses to restraining order violations include:
- Lack of knowledge;
- Improper service;
- No opportunity to read the contents of the order or have them read to you;
- Accidental violation that was not deliberate;
- Restraining order is not legal;
- Violation of Constitutional rights.
Penalties for Restraining Order Violations
What happens if you are charged and convicted of violating a restraining order? The answer will depend on (a) the severity of the violation, and (b) if this is a first-time violation.
A first-time restraining order violation is a misdemeanor. The crime is punishable by no more than one year in County jail, a fine of $1,000, and/or probation. The judge hearing your case also has the discretion to require anger management, domestic violence courses, substance abuse counseling, contributions to a battered women’s shelter, and/or restitution for costs incurred by the victim.
A first-time restraining order violation that results in harm to the protected victim will require a minimum sentence of no less than 30 days in County jail.
Subsequent violations of a restraining order within seven years of a first-offense can be charged as misdemeanors or felonies. Misdemeanors are punishable as described above. Felonies are punishable by between 16 months and three years in prison and/or $10,000 in fines.
Subsequent violations of a restraining order within one year of a first-offense that results in harm to the protected victim can be charged as misdemeanors or felonies.
Experienced California Restraining Order Violation Attorney
Have you been accused of violating a restraining order? If so, you should immediately contact an experienced San Diego criminal defense attorney. Prosecutors do not take accusations of restraining order violations lightly and will aggressively pursue the maximum penalties for the crime. However, accusations can be unfounded, so it is important to assert a powerful defense. Our skilled restraining order defense attorneys understand the best ways to attack allegations of restraining order violations and will fight to stop any criminal proceedings in their tracks. Contact our office today to learn more.