Restraining orders, sometimes called protective orders, are court orders designed to protect someone from harassment, abuse, stalking, or threats. If a judge grants a restraining order against someone, that person is legally required to stay away from the protected individual and avoid any contact with them.
Violating a restraining order is a serious offense. Ignoring a restraining order can lead to jail time and hefty fines.
This article provides an overview of California Penal Code 273.6 PC, which addresses the crime of violating a restraining order. We’ll walk through the details of the law, potential defenses, and the penalties you could face if convicted.
What is California Penal Code 273.6 PC?
California Penal Code 273.6 PC makes it illegal to violate a valid protective order. But what does that really mean? The prosecution has to prove a few things to convict someone under this law:
- A Lawful Order: There has to be a real, legally binding protective order in place.
- Knowledge: The person accused of violating the order has to know about it. They can’t violate an order they didn’t know existed.
- Ability to Obey: The person has to be able to follow the order. For example, if the order says “stay 100 yards away,” they have to be physically capable of doing so.
- Willful Violation: This is key. The violation has to be willful.
Now, “willful” doesn’t mean the person has to have had bad intentions or malice. It just means they intentionally disobeyed the order. Even if they thought they had a good reason, it’s still a violation if they did it on purpose.
It’s also important to know that violating any part of a protective order is a crime. It doesn’t matter if it’s a small part or a big part. If the order says “no contact,” even sending a text message is a violation.
Types of Protective Orders in California
California courts can issue several types of protective orders, depending on the situation.
Restraining Orders (Civil)
Civil restraining orders are designed to protect people from harassment, threats, or violence. These orders can last anywhere from a few days to as long as five years.
Stay-Away Orders (Criminal)
Stay-away orders are issued in criminal cases to keep a defendant away from the alleged victim. These orders can be in effect for three to 10 years, or until the criminal case is resolved.
Emergency Protective Orders
Emergency protective orders are typically issued by law enforcement officers in situations where there is an immediate threat of violence.
Temporary Restraining Orders
A temporary restraining order (TRO) is a short-term order issued by a court to provide protection until a hearing can be held for a more permanent order.
Permanent Restraining Orders
A permanent restraining order actually lasts for a fixed period, generally up to five years. After that, the protected party can petition the court to renew it.
Peaceful Contact Orders
In situations where co-parenting is involved and there’s no history of violence, a court may issue a less restrictive order that allows for peaceful contact between the parties.
How do prosecutors prove someone violated a restraining order?
To convict someone of violating California Penal Code 273.6 PC, prosecutors must prove five things beyond a reasonable doubt (as outlined in California Criminal Jury Instructions, or CALCRIM, 2701):
- A court issued a lawful order.
- The order was a protective order (restraining order).
- The alleged violator knew about the order.
- The alleged violator could comply with the order.
- The alleged violator willfully violated the order.
A “willful violation” means the person acted on purpose. It doesn’t matter if they intended to break the law. For example, if a restraining order requires someone to stay 100 yards away from someone and they knowingly get within 50 yards, that’s likely a willful violation, even if they just wanted to “talk.” Even unintentional actions can be considered willful, if the person knew that their action would violate the order.
Penalties for Violating a Restraining Order
Violating a restraining order can lead to serious consequences. The specific penalties vary depending on the circumstances of the violation, as well as the violator’s prior record.
Misdemeanor Penalties
A first-time violation of a restraining order is often charged as a misdemeanor. If convicted, the person could face up to a year in jail and/or a fine of up to $1,000.
Felony Penalties
In some cases, violating a restraining order can be charged as a felony. This typically occurs when there’s a second or subsequent violation, or when the violation involves violence or credible threats of violence. If convicted of a felony violation, the person could face a fine of up to $10,000 and a prison sentence of up to three years.
Enhanced Penalties
If the violation of a restraining order involves physical injury to the protected party, the penalties can be even more severe. A conviction for violating a restraining order with physical injury, within one year of a prior conviction for violating a similar order, can result in a jail sentence ranging from six months to one year. A fine of up to $2,000 may also be imposed.
Probation Conditions
In addition to jail time and fines, a person convicted of violating a restraining order may also be subject to probation. As a condition of probation, the court may order the person to pay up to $5,000 to a domestic violence shelter.
Legal Defenses to Restraining Order Violation Charges
If you’ve been accused of violating a restraining order, there are a few legal defenses that could potentially get the charges dropped or reduced. It’s important to remember that every case is unique, and the success of a particular defense depends heavily on the specific facts and circumstances.
Invalidity of the Restraining Order
One potential defense is arguing that the restraining order itself was invalid from the start. This could be due to procedural errors in obtaining the order, lack of proper jurisdiction, or insufficient evidence presented at the hearing. If the order wasn’t legally sound to begin with, a violation charge might not hold up in court.
Lack of Knowledge of the Order
To be convicted of violating a restraining order, you generally have to know the order existed. If you weren’t properly served with the order, or if there’s evidence suggesting you were genuinely unaware of its existence, that could be a valid defense. For example, maybe you moved and the notice was sent to your old address, or perhaps the server didn’t actually hand you the paperwork.
Lack of Willful Violation
The violation usually has to be “willful,” meaning you intentionally violated the terms of the order. Accidental or incidental contact might not be enough for a conviction. For instance, if you happen to bump into the protected person at a restaurant unexpectedly, and there was no intent to harass or threaten them, that might not constitute a violation.
False Allegations
Unfortunately, sometimes restraining order violation charges are based on false allegations. If you can prove that the protected person is fabricating the claims out of spite or revenge, that could be a strong defense. This might involve presenting evidence of their motive to lie or demonstrating inconsistencies in their story.
What other crimes might be involved?
Violating a restraining order often happens alongside other offenses. Here are a few examples:
- Domestic battery: This is when someone intentionally uses physical force or violence against an intimate partner.
- Corporal injury: This crime involves intentionally inflicting a physical injury on an intimate partner, resulting in a wound or trauma.
- Stalking: Stalking is a pattern of repeated and unwanted attention, harassment, or contact that causes someone to feel afraid or unsafe.
- Criminal threats: This involves making a verbal or written threat to harm or kill someone, causing them to reasonably fear for their safety.
These are just a few examples, and the specific charges will depend on the details of the case.
Collateral Consequences of a Conviction
Beyond fines and jail time, a conviction for violating a restraining order can have other far-reaching consequences.
Immigration Consequences
If you’re not a U.S. citizen, a conviction for violating California Penal Code 273.6 PC may not affect your immigration status, unless the circumstances of the violation involve domestic violence.
Background Checks
Criminal convictions always show up on background checks, so it’s important to understand the potential long-term impacts of a guilty verdict or plea.
Expungement
If you’re convicted of violating a restraining order as a misdemeanor, California law allows you to petition the court to have the conviction expunged from your record after you’ve completed your probation or jail sentence.
Gun Rights
If you’re convicted of violating a restraining order as a felony, you’ll be prohibited from owning a gun for the rest of your life. However, a misdemeanor conviction for violating a restraining order won’t affect your right to own a firearm.
Wrapping Up
Violating a restraining order in California is a serious offense with significant consequences. It’s crucial to understand what actions constitute a violation, the potential penalties you could face, and the defenses that might be available to you.
We’ve covered the key elements the prosecution must prove, including the existence of a valid restraining order, your awareness of it, and your intentional violation of its terms. We’ve also discussed the potential for jail time, fines, and other penalties. Finally, we examined some possible defenses, such as lack of knowledge or a false accusation.
If you or a loved one is facing charges related to a restraining order or domestic violence, it’s essential to seek legal counsel immediately. A qualified attorney can help you understand your rights and navigate the complexities of the legal system.
The most important thing to remember is to comply with every single provision of any restraining order or stay-away order issued against you. Even a seemingly minor infraction can lead to serious legal trouble.