In Orange County, those fearing that a loved one will engage in domestic violence can be protected by the law. Acquiring a domestic violence protective order is a straightforward process. Sometimes the accused is not adequately informed about the order and can accidentally break it without knowing. A restraining order could also be acquired through false allegations. If you've been arrested for violating a court order, your rights and freedom are at stake and should be protected. A proficient attorney at Orange County Criminal Defense Attorney Law Firm can assist you in mitigating the consequences of the alleged offense.
Understanding a Restraining Order?
A restraining order is an order which is meant to protect alleged victims from threats, physical abuse, and harassment. In other words, a protective order bans you from contacting the person the order is protecting.
Typically, the court order will come with provisions that prevent you from reaching the protected person like:
- Sending a text message or calling the protected person
- Having social media interactions or sending emails to the protected individual
- Staying far from the victim
- Conducting any form of surveillance
A domestic violence protective order protects an individual from threats of abuse or abuse from a person with whom they had or have a close relationship. It can be brought by:
- Registered or married domestic partners
- Significant others
Moreover, children older than twelve years can bring a restraining order on their own. Another person can also bring the order on behalf of a minor.
Levels of Protections for Domestic Violence Restraining Orders
There are three categories of protection in domestic violence protective order. They include:
Emergency Protective Order
Just like the name suggests, EPOs are ordered in emergencies. Often, law enforcers request emergency protective orders when responding to domestic violence calls. If police officers suspect that a person is at risk, they will request a judge to grant the protective order.
The police officer will inform you (if present) about the protective order that takes effect straight away. The order lasts for seven days. Beyond the seven days, the victim will be required to request the judge to grant them a permanent or temporary protective order.
Temporary Restraining Order
Typically, a temporary restraining order lasts for two to three weeks. The court issues this type of protective order when an EPO expires, or the individual seeking protection has been harassed.
In this context, harassment means:
- A threat of illegal violence or illegal violence
- Conduct which seriously annoys or alarms somebody else which serve no valid purpose
- Behavior which would make a reasonable individual sustain significant emotional anguish and which causes emotional suffering to the alleged victim
Before your temporary restraining order expires, the judge will schedule a hearing to decide if they ought to grant a permanent domestic violence restraining order.
Permanent Restraining Order
The judge will order a PRO if he/she thinks after the hearing which the individual seeking the domestic violence restraining order requires more protection. The court will listen to both the victim and the defendant so that they can decide:
- Whether to grant the protective order
- The duration of the order
- Different kinds of provisions to add to the protective order
Typically permanent restraining orders last for three years but can be longer if necessary. They include restrictions that you:
- Leave your home and get another residence
- Maintain a given distance from the alleged victim
- Surrender all weapons that you possess and not obtain new ones
- Refrain from reaching the victim through telephone, personal contact or communication using any other electronic method
- Pay the lawyer's fee of the victim seeking the protective order
If you plan to contest the restraining order, it is essential to engage an experienced attorney. The attorney will challenge the validity of the order. Any qualified lawyer knows the legal argument that will persuade the court that the restraining order restrictions are unnecessary and unreasonable.
Breaking Domestic Violence Restraining Order Laws (California Penal Code 273.6)
Under California Penal Code 273.6 PC, it is an offense to violate the conditions of a domestic violence restraining order. It takes place when the court orders a lawfully restraining order, and a defendant deliberately ignores the terms of the order.
To be found guilty of breaking a protective order law (sometimes called contempt of court), a prosecution should prove the facts of the offense below:
- The court issued a lawful restraining order
- The defendant was aware of the protective order
- The defendant intentionally broke that order
To understand the legal definition above, here is an overview of the facts of the crime:
Legal Protective Order
If the court orders a lawful restraining order against a person, they are supposed to adhere to the order.
Nonetheless, there are protective orders that are unlawfully issued. It may be because:
- There was no lawful basis to issue the protective order, or
- The court did not have the jurisdiction or proper authority to grant the order
In case the order is unlawful, its terms and conditions do not bind you. The law goes ahead to hold that the order of violating a court order can't stand provided the underlying court order is not valid.
If you think a protective order isn't valid, it is advisable to consult with a criminal defense attorney who can assist in challenging the order before you get arrested for breaking it. It is less overwhelming to prove a convincing case before you're accused of not adhering to a court's order.
Aware of the Domestic Violence Protective Order
Before convicting you of breaking a domestic violence protective order, the prosecution should ensure that you were aware of the order. It takes in having had a chance to go through the order (irrespective of whether you read it or not).
The law is specific about notice requirements. If named in a protective order, you should be served with a notice that your liberties are restricted. The notice can be served:
- Personally by the third party in writing, (it could be a law enforcer) who presents the protective order to you
- Verbally by a law enforcer who has been asked to impose the protective order when the police determine that you were otherwise not aware of the existence of the order
- Orally by a judge if you are in the court
In case a defendant is aware that the judge had issued a lawful protective order and deliberately chooses to disregard it, they are guilty of breaking a restraining order.
That means if, for instance, you are banned from communicating with your ex-spouse but go ahead and send him/her text messages that you're apologizing, you're deliberately breaking the order.
Nonetheless, if you were ordered to keep a given distance from the protected individual but by accident bumped into him/her at the movies or in a grocery store, you haven't intentionally broken the order. In this case, you would be required to show that you vacated the area immediately and did not attempt to talk to him/her after you saw him/her.
Penalties Attracted by Violation of a Domestic Violence Restraining Order
Violation of Penal Code Section 273.6 is a misdemeanor. If found guilty, you will serve a year in jail and pay a maximum of one thousand dollars in fines.
Additionally, the judge may order probation. The probation will come with the following terms and conditions:
- Compulsory counseling including domestic violence program, substance abuse program, and anger management
- Compensation to the alleged victim for medical and counseling bills reasonably incurred due to the crime
- Payment to the battered woman's shelter
In case this is the second time you have been convicted of PC 273.6 within seven years, and the crime involves violence or credible threats of violence, you will face a wobbler. It can be either a felony or a misdemeanor. A California misdemeanor carries a one-year jail sentence and a fine of up to $1,000. A felony, on the other hand, attracts:
- A year in jail and probation, or
- Up to ten thousand dollars in fines and sixteen (16) months, two (2) or three (3) years in state prison
If, when violating your protective order, the victim sustains physical injuries, you will spend a legal minimum of thirty days in jail.
If you get convicted of PC 273.6 within a year, and the protected person sustains physical injuries, the crime becomes a California wobbler. It carries either:
- A six month or a year jail sentence for a California misdemeanor or
- A sixteen (16) months, two (2) or three (3) years in jail or one year in jail and probation for a felony
Although the minimum thirty-day and 6-month jail sentences applying to offenses which involve physical injuries should be compulsory, they don't have to be. If you spend forty-eight hours and a minimum of thirty days in jail on the thirty-day and 6-month sentence, respectively, the court has the power to cancel out of the time spent in custody. To convince the court, your criminal defense attorney will:
- Prove mitigating factors
- Explain how remorseful you are and recognize that you should permit the victim to regain security
- Prove that you're almost completing the counseling classes
Possessing a Firearm
It is illegal to possess, own, buy, or obtain any firearm while you have a domestic violence protective order against you. The restrictions will come alongside instructions either to:
- Sell the firearm to a licensed firearm dealer, or
- Surrender the weapon to the local police station
However, if you knowingly possess or own a gun during this duration, you will be charged with a misdemeanor. The charge carries up to a year in jail and a fine of $1,000.
If you buy, receive, or try to receive or purchase a firearm during this period, you are guilty of a wobbler. It has the same penalties for a misdemeanor, and a felony is punishable by three (3) years in a California state prison.
How to Fight Violation of a Domestic Violence Protective Order
Being charged with violation of a restraining order in Orange County is a traumatizing experience. Luckily, there are numerous legal defenses that a qualified criminal defense attorney can use on your behalf. They include:
Lack of Knowledge
If you are not aware of the domestic violence restraining order, you cannot be found guilty of deliberately breaking it. The legal defense in question works best if you weren't in court when the court issued a protective order or at the scene when the police told the protected individual that they had been granted an EPO.
Your defense attorney could argue that you do not know about the order because maybe it was mistakenly issued to the wrong individual or sent to an incorrect address.
Lack of Intent
Even if a defendant knows the court has issued an order against them but does not notice that they are violating the order, they cannot be held accountable for breaking the order. This could be the case if you violate the terms of the order accidentally. A perfect example is bumping into the protected individual at a social event or in public.
It is worth noting that even if the protected individual contacts you and asks to see you and reconcile, you should not adhere. Only the judge can withdraw the conditions of the order. Therefore, even when you honestly think the victim is not interested in enforcing the order, and you don't believe you are deliberately breaking the protective order, you must adhere to the conditions. Follow the terms until the protected individual calls the judge, and the judge lifts the order.
Likewise, even if you think the order was not appropriately ordered. Maybe because it was found on an overblown or exaggerated report, you should adhere to its terms. Otherwise, you will be charged with a violation of Penal Code Section 273.6.
Like previously mentioned, you should not comply with a request to meet and reconcile with the protected party provided the court order is preventing you from doing so. First, you will be violating the conditions of the order. Second, it could be set-up by the alleged victim. If they can get you to contact them or break the protective order in any way, they can call the law enforcers and have you arrested for the offense in question.
Based on that, the protected person could argue that you broke the order when you did not do so. They could also claim that you were stalking them by following them, engaging in acts that do not need physical evidence, or calling them and then hanging up. Often, false accusations stem from anger, custody battles, revenge, and jealousy.
Fortunately, all is not lost. Your criminal defense attorney should know how to review and investigate your case. This will expose false accusations as well as prove your innocence.
Numerous offenses are related to the violation of domestic violence restraining order. Generally, this is because Penal Code Section 273.6 either triggers or stems from one of the related offenses. The offenses include:
Violation of domestic violence law occurs when you injure or threaten your intimate partner. In this context, an intimate partner could be:
- A former or current spouse
- An individual whom you have lived or live with
- An individual whom you were or are dating
- A parent to your baby
When police are called to a domestic violence scene, they often request the court for an EPO. And hinging on the case circumstances, the EPO could become a temporary restraining order or a PRO.
Often, when a defendant breaks a domestic violence protective order, it's because they are either trying to commit or committing another domestic violence act against the alleged victim.
PC 646.9 makes it illegal to threaten or harass somebody else to a level that that person fears for their life or their family's safety. Violation of stalking laws is a wobbler which carries:
- A year in jail and a maximum one thousand dollars in fines for a California misdemeanor, or
- A fine of ten thousand dollars and a maximum of three (3) years in state prison
Moreover, you will be issued with a restraining order. And in case you continue stalking the victim when there is a valid order, you will be charged with an automatic California felony. You will face a maximum of four (4) in prison.
Likewise, if you have a prior felony conviction for breaking
- Domestic abuse (PC 273.5)
- A protective order even if it is against another person, or
- Criminal threats (PC 422)
You will face a wobbler. Nonetheless, different from the wobbler consequences discussed above, the California felony is punishable by five (5) years in California state prison.
Additionally, the crime is prevalent for persons accused of indirect cyber-harassment (PC 653.2) or cyber-stalking. Cyber-stalking is similar to ordinary stalking but committed over an email or internet. Indirect cyber harassment, on the other hand, includes posting harmful details about another person in email messages or on the internet. It is done to stir up other persons to threaten or harass the victim in person.
According to PC 422, it is illegal to threaten to harm or kill another person when the protected individual reasonably feared that you instantly plan to execute the threat. It does not matter whether you did it or not.
Like other offenses, in case a defendant makes threats probably the judge will grant a restraining order against them. Also, if you go ahead making the threats while having a protective order, the prosecutor will file both criminal threats and violation of restraining order charges.
If convicted of Penal Code Section 422 PC, you will face a California wobbler. A misdemeanor attracts one year in jail and a fine of one thousand dollars. A felony, on the other hand, is a strike under the Three Strikes law. It is also punishable by three years in prison.
California Penal Code Section 368 is the elder abuse law. The law protects people above sixty-five years from conduct that involve negligence and financial, physical, and emotional abuse. Breaking elder abuse law will lead to a protective order granted against you. If you continue abusing the senior individual when a protective order is active, you could be charged with elder abuse or PC 273.6 charges.
The violation of PC 368 is a wobbler. A misdemeanor is punishable by a year in jail. A felony attracts four (4) years in state prison.
Vandalism (PC 594)
According to vandalism law, it is unlawful to deface, destroy, or damage another person's property. Also, PC 594 applies to assets which you own with another person.
That means if, for instance, a defendant destroys their ex-spouse car, even if they own the vehicle while they have a protective order against them, the prosecutor will charge them with both breaking vandalism laws and PC 273.6.
Penal Code 594 is a California wobbler. It can be filed either as a misdemeanor, felony, or an infraction depending primarily on the criminal history and the worth of the damaged asset.
Contempt of Court
Contempt of court (PC 166) is another offense that is related to violation of domestic violence restraining order. Both offenses punish breaking a restraining court order willfully. Nonetheless, contempt of court is broader compared to Penal Code 273.6. It prohibits a wide range of conduct that involves misbehaving in a court of law or disobeying a court order.
Penal Code 166 charges also apply to a court order which protests demonstrations and restrict picketing activities.
Violation of PC 166 for a first-time is a misdemeanor. However, ignoring firearm restrictions ordered together with the order is a California wobbler.
Orange County Criminal Lawyer Near Me
In most cases, violation of a domestic violence restraining order is a misdemeanor. That means you could serve time along with paying fines. Fortunately, if you have been accused of committing the offense in question, Orange County Criminal Defense Attorney Law Firm can assist you in beating the charge. There are numerous legal defenses our attorneys can use to build your case. Contact us today at 714-740-7848 to schedule your initial consultation.