One of the commonest misdemeanors in domestic violence is a spousal or domestic battery. When a couple disagrees, and one partner is abusive, the victim could seek restraining orders to protect themselves from the abuser. If a restraining order is issued against you, you become the restrained person, while the alleged victim is the protected party.
Restraining orders must be obeyed. Violating a restraining order is a criminal offense, and it’s severely punished in California. Defending yourself against the allegations of violating restraining orders is critical to avoid the negative repercussions. At the Orange County Criminal Defense Attorney Law Firm, we offer our clients the best defense when faced with these criminal charges.
Overview of Restraining Orders
Domestic restraining orders are standard among disagreeing partners or ex-partners. If your partner files a restraining request against you, they must prove that you were abusive or harass them in one way or another. A protective order is issued to protect the alleged victim from further abuse by the other person.
Restraining orders can be either stay away or move out orders. When the court issues a restraining order against you, you are expected to stop doing the things outlined in it. If you fail to refrain from these acts, you will violate the rules and get arrested and criminally prosecuted.
If the orders are issued based on your conduct, you will be prohibited from communicating with, stalking, or attacking the plaintiff. This protection includes all forms of communication, including social media platforms. When a stay-away order is given against you, it describes the distance you must keep from the protected person. The rules further put restrictions on the places you can go to where the alleged victim may be. These include their homes or workplace, even their favorite restaurants or clubs.
Not every person can qualify to file a protective order for domestic violence against you. For a person to qualify to file protective orders against you, they must fit the criteria below:
- Presently or past married couple or registered domestic partners
- Parties currently living together or previously
- Now dating or ex dating parties
- Sharing a child or children that are below 18
If a person fitting in the above criteria convinces the court to get a protective order against you, you must obey it and avoid criminal prosecution. Typically, a protective order may contain the following restrictions:
- Not to contact, communicate or go close to the person protected by it
- Not to possess a firearm for the period of the protective order
- Move from the home or house you share with the protected party
- Adhere to the visitation and child custody orders
- Submit child support payments
- If you and the protected person are a married couple or registered domestic partners, you may get ordered to pay for their support
- Keep off your shared pets
- Move the privileges to an account or phone number to the other party
- Participate in paying some bills
- To avoid significant expenses that can affect the property, you share with the protected party
- To return or release particular items or properties
- Attend and complete a batterer’s intervention program lasting 52 weeks and prove it to the judge
- Sell or turn in any firearm in your possession and ammunition for the period of the order
What You should do when a Protective Order has been Issued against You
Sometimes when you least expect it, you may be served with restraining order papers. One of the most important things is to carefully read the protective orders’ contents and adhere to them. The details of the order are outlined in Form DV-110. If the allegations in the order are false, you will have your day in court to challenge them, but obeying the contents therein is critical.
If you get ordered to stay or keep away from individual persons, things, and places, ensure to obey while you seek legal counsel. If the order states you move out of the home or house, it does not matter whether you are part owner of the premises. Take the belongings and clothes you can, and that only belongs to you and look for another place to stay.
If you own or possess a firearm and a protective order has been issued against you, you must submit it to the authorities or find a firearms dealer who can buy it.
After receiving the protective orders, do what is stated in it as you look for an attorney to represent you in challenging the rules. A restraining order typically comes with a date for a hearing. Attending the trial is essential to avoid unfavorable ruling. If you fail to participate in the court hearing, the judge will assume you have no story to tell, or you are not opposed to the orders and will make the ruling.
Restraining orders can last long, with some going for five years. If you have children with a protective person, you may get ordered to stay away from your children for many years. Attending the court date is critical to avoid this type of judgment because you will get an opportunity to challenge the orders. Additionally, the judge can make a ruling regarding your children and their support in your absence. However, if you attend the court hearing, this ruling will not be made without you.
Sometimes you may feel like responding to the orders before the appointed court hearing date. You file your response to the orders by submitting Form DV-120, where you narrate your story on what went on. In this response, you are also allowed to tell the court the orders you prefer on visitation and child custody rights. Filing an answer and attending the court hearing is not mandatory, but it is critical in your getting the most favorable outcome.
Sometimes you may have reasons to seek protection from the party that initially filed the protective orders against you. The law allows you to register for restraining orders against them as well. However, you cannot respond to a restraining order by submitting one against them. A response to a protective order is separate from filing for one against the other party.
Steps in Responding to a Protective Order
As earlier stated, when you receive restraining orders, you must read the contents of the order carefully and do as asked as you wait for the hearing date or as you respond. Finding an attorney that understands restraining order laws is also critical to a favorable outcome. If you choose to answer to the restraining orders, there are steps that you must follow.
First Step – Filling Form DV-120
If the restraining order is concerning domestic violence, you need to fill and file Form DV-120. Sometimes you may need more space to present your response. In this case, you can fill an extra page known as Form MC-020.
Other forms may be necessary to fill, depending on what the protective party has asked. If child support was asked for, it would be essential to fill a form declaring your income and expenses known as Form FL-150. You can also opt to file a simplified financial statement under Form FL-155. If the person that submitted the restraining orders asked for family, spousal or partner support, it would also be essential to fill and file Form FL-150.
Step Two – Filing and Serving the Response
After filling the necessary forms, you must file them in court and serve the protected person with a copy. The filing and serving response must be made on time to avoid the deadline. You must present two copies with the first response to the court clerk, who will file them. The initial reaction is kept with the court, and the copies will get stamped filed and returned to you.
After filing your response, you must find a person over 18 years to serve a stamped copy to the secured party. You must, however, not serve the answer yourself. If you fail to find a process server, you can mail the protected person their copy.
It is always essential to have evidence that the protected person received their copy of the response. To ensure this, you must fill and file a form showing proof of service known as Form DV-250. With this form, the protected person cannot claim not to have received your response.
Step Three – The Court Hearing
With the help of your lawyer, you can prepare to challenge the restraining order filed against you. During the hearing, you must come with copies of the submitted documents, even the one proving you served your response. If you have any materials to support your case and disapprove of the protected party’s claims, you must also have them in court. You can also have a witness to support your argument. The court can decide to allow or deny the witness from speaking, but a written and signed statement will help your case. If you opted for a witness statement, it must have been filed as you filed your response and served.
Arriving at the courthouse early and reporting to the court clerk of your presence is essential. During the hearing, the judge will ask you some questions. Ensure always to answer truthfully and avoid contradicting yourself.
At the end of the hearing, the judge decides to issue the restraining orders against you or not permanently. The judge can also adjust some requests on order and issue protective orders on some items. After issuing the permanent restraining orders, you must obey them to avoid an arrest and eventual prosecution.
Criminal Charges when you Violate a Protective Order
As earlier stated, violating any of the contents in a restraining order is a criminal offense in California, prosecuted according to PEN 273.6. Before a conviction, the judge must prove various elements of the crime according to the law. These include:
- That the court legally issued the said restraining order
- That you knew the order existed
- You were able to adhere to the protective order
- But you willingly violated or disobeyed the order
Based on these elements, you will not be guilty of violating a restraining order if a court did not lawfully issue it. Similarly, for a guilty verdict, you must have known the orders existed or were served with them according to the law. The element of willfulness with this offense means that you violated the rule on purpose and knew what you were doing. Sometimes as you break the restraining order, you may also commit another crime. If this happens, you will get charged with the other offense alongside PEN 273.6 for violating the law.
If the prosecutor is unable to prove a particular element, you may not be found guilty. For instance, your ex-wife obtained a restraining order against you because you were physically abusive. The rule restricts you from being near her or her favorite places that she often visits. Unfortunately, one day you find yourselves in the same restaurant, and you didn't know she would be there, but she reports you for violating the orders. In this case, you are not guilty of the offense because you never did it intentionally. An accidental encounter will not result in your prosecution on the alleged crime.
Defenses for Violating Restraining Orders
If you get accused of violating protective orders, criminal charges will be brought against you that can lead to your incarceration. Fortunately, the law allows you to challenge the allegations in your defense and avoid a guilty verdict. With an experienced criminal lawyer, various defense strategies can be formulated to challenge the accusations against you. Some of the arguments commonly used include:
The Orders were not Lawful
In one of the elements that must be proven, the prosecutor must show the court that the restraining orders were lawfully issued. If there was no basis for issuing the orders or forged, you could use this as a defense. If your lawyer can convince the court of this, you will not be guilty of PEN 273.6.
You had no Knowledge
Another element to show is that of knowledge. You are only guilty of violating a protective order if you knew of its existence. If you did not know a restraining order was issued against you, the prosecutor could not prove the case, and you will be innocent of the offense.
You Never Acted Willingly
Willfulness is another critical element to show in this case. If you never violated the restraining order willfully, you cannot be found guilty of the offense. According to the earlier example, if you accidentally ran into the protected person without intending to or in a place not mentioned in the order, you are innocent of the offense. However, if you knew the protected person was going to be there and you went there anyway, you will not use this defense.
Consequences of a Guilty Verdict
Most violations of PEN 273.6 get prosecuted as misdemeanors. If you are found guilty of the offense, you face a possible county jail time of a year or less. The judge may also sentence you to pay a fine of a thousand dollars or less. This is in addition to your jail time or instead of it.
This offense can also become a wobbler. This happens if:
- It is your second conviction for the same offense
- When violating the protective orders violence was involved
If the above is right, you can face felony prosecution that is punished by:
- State imprisonment for three years
- A cash fine not exceeding $10,000. The fine gets charged in addition to or instead of the jail time.
Consequences of a Conviction to your Immigration Status
The crimes that might get you deported or inadmissible to the United States are those of aggravated felony. Violating PEN 273.6 is not this type of crime, meaning your immigration status will not be affected by a conviction.
Expungement of your Record
When you get convicted of any crime in California, your record is available to the public. Most individuals with a conviction find it challenging to get back to society and continue with their lives as before. The stigma from the public as a convicted felon makes it challenging to get trusted. Some of the challenges other than the legal consequences of a conviction include:
- Difficulties getting or maintaining a job – Employers or potential employers find it difficult to trust a person with a criminal record. You may qualify for a job, but before you are offered it, the prospective employer will run a background check. If your history shows a conviction for this crime, the employer may deny you an opportunity because of a lack of trust. A current employer may also decide to do a background check, and if it is found you have a criminal record, it may cost you your job.
- Challenges in getting a rental property – Before any property owner leases their property to a stranger, they mostly check on your background. A conviction in your record is likely to give them cold feet, and they refuse to lease the property to you.
- Obtaining credit – Financial institutions don’t easily loan to persons with a criminal background. This may make it difficult for you to advance yourself even with a high credit score.
Because of some of these and many other consequences, having your record expunged is essential. However, you can only apply to get an expungement if you complete your punishment as outlined by the court. The judge typically has the final say on your expungement after a hearing is carried out.
After the successful completion of your punishment, your lawyer can file a petition requesting the court expunge your record. The prosecutor is informed of the appeal and allowed to file a response. A court date is then set to determine if you could get your record expunged or not. During the hearing, both sides present their argument, and the judge makes the final decision on your expungement.
Related Offenses to PEN 273.6 – Violating a Protective Order
When an offense is connected to another, it can be charged instead of or alongside the primary crime. In many cases, if you are accused of violating a protective order, you are likely to be charged with another crime. Some of the related offenses to PEN 273.6 include:
PEN 646.9 – Stalking
It is a criminal offense to harass, follow, and threaten a person until they feel scared for their safety and loved ones. You might get charged with violating a protective order if you stalked the protected person even while maintaining the physical distance ordered.
PEN 422 – Criminal Threats
Issuing criminal threats to a person is a severe crime in California. You can get charged with issuing criminal threats if you threaten a person with harm or murder and:
- You cause them to be afraid
- The threat you issued is explicit and specific and
- You verbally issued the threats or wrote them or issued them through an electronic device
If you do any of the above against a person protected by a restraining order, you will be charged with violating PEN 273.6 and PEN 422 for issuing criminal threats.
The laws on domestic violence make it a criminal offense to issue threatening remarks to your intimate partner. If your ex-partner obtained restraining orders against you because of domestic violence, you could be charged with this offense if you violate the restraining orders and physically abuse them.
Find a Criminal Attorney Near Me
When you get charged with violating protective orders, you will require an experienced criminal lawyer to challenge the evidence against you and obtain a favorable outcome. Without a lawyer on your side, it can sometimes result in a wrongful conviction, and the repercussions are even worse. If charged with violating a restraining order, call our Orange County Criminal Defense Attorney Law Firm at 714-740-7848 to discuss your case in detail.