When you find yourself facing accusations of violating a restraining order, it is crucial to have a skilled defense lawyer to fight for you and serve as your legal counsel. As a restraining order violation defense attorney at the Law Office of Cherish Om, I understand the frustration that you are dealing with right now and may be able to assist you. Get in touch today to schedule a consultation and take the first step toward protecting your future.
Being accused of violating a restraining order that was placed against you is a matter that should not be taken lightly, even if the allegations are false or based on exaggerations. At this point, you have far too much at stake to risk going into any kind of criminal proceeding alone. Instead, you need to rely on effective and strategic courtroom advocacy to protect yourself from further criminal consequences.
At the Law Office of Cherish Om, I am ready to stand up for you throughout the duration of your case and fight for your rights and freedom. As your legal counsel, I will investigate all the facts of your case and dispute the allegations against you using factual evidence to achieve the most favorable outcome possible.
Are you facing allegations of violating a restraining order? Contact my office today so I can assess the details of your case and identify the most effective defense strategy to combat the allegations in court.
Types of Restraining Orders in California
range of restraining orders to protect victims of domestic violence, civil harassment, workplace violence, elder abuse, gun violence, and school violence. For the purposes of understanding California Penal Code § 273.6, we will review two basic categories of protective orders in the state:
- Restraining orders are court orders issued by a judge in a civil court at the request of an individual seeking protection from harm. These orders are often used in domestic violence cases to protect victims from their abuser (called the “restrained person”). Restraining orders are divided into two types based on their duration: orders effective up to 30 days (emergency protective orders) and orders effective up to five years (permanent restraining orders).
- Stay-away orders are protective orders issued by a judge in a criminal court when a defendant faces charges for a crime (e.g., domestic battery). Stay-away orders are very similar to domestic violence restraining orders in terms of their scope. The only major difference is that, unlike restraining orders, stay-away orders are initiated by a judge in a criminal court, not by the alleged victim. Typically, these orders last between three and 10 years or until the criminal case is resolved.
Typically, a person can request a restraining order when they believe they could be subject to physical harm or threats of violence by the restrained person. Both restraining and stay-away orders may forbid the restrained person from having contact with the protected person and coming within a certain distance of them. Even though restraining orders are civil in nature, violating one becomes a criminal matter and is punished quite harshly in California.
Violation of a Restraining Order in California Penal Code 273.6
Under California Penal Code § 273.6, violating any criminal protective order, including a restraining order, is a crime that can result in arrest and criminal prosecution. However, your failure to follow the terms of a restraining order must be proven first. For this purpose, the prosecution must establish the following four elements beyond a reasonable doubt:
- Lawful order. A civil or criminal court issued a lawful order that requires the defendant to do or refrain from doing something.
- Knowledge. The defendant knew or reasonably should have known the order existed.
- Ability. The defendant had the ability to follow the order.
- Willful act. The defendant willfully (or on purpose) violated the order.
If the prosecution cannot prove any of the above elements, the court will not find you guilty of violating a restraining order. As a criminal defense lawyer at the Law Office of Cherish Om, I can help you fight the charge by identifying weaknesses in the prosecution’s case and poking holes in the evidence presented against you.
Examples of How a Restrained Person May Violate a Restraining Order
A restraining order can be violated in several ways, some of which are often unintentional. While the conditions of a restraining order vary from one order to another, some of the most common examples of how a restrained person may violate the order and face criminal prosecution under California Penal Code § 273.6 include:
1. Failure to Move Out of a Residence
If a restraining order has been issued, the restrained person may be required to move out of a shared residence, which is often the case when the protected person and the restrained person live together. Failure to do so can be considered a violation of the order. It is important to make arrangements to move out before the effective date of the restraining order to avoid legal trouble. If the person is unable to move out before the effective date, they should inform the court and request an extension.
2. Making Contact with a Protected Person
Making contact with the protected person, whether it is physical or through electronic communication (texting, social media, phone calls, email, etc.), is considered a violation of a protective order in most cases. Even if the restrained person believes that the protected person wants to have contact (e.g., they accidentally or intentionally liked their post on social media), they should refrain from contacting them directly or indirectly.
3. Failure to Stay Away from a Protect Person’s Home or Place of Employment
If the restraining order requires the restrained person to stay away from a protected person’s home or place of employment, failure to comply can lead to serious repercussions. It is essential to understand the boundaries set out in the order and to ensure compliance. If there are any questions or concerns about the scope of the restraining order, you might want to seek legal advice.
4. Threatening a Protected Person with Abuse
Any act that threatens or implies abuse can result in allegations of violating a restraining order. This includes making threatening statements or gestures or behaving in a manner that makes the protected person feel unsafe. Even if the restrained person does not intend to cause harm, their behavior could still be considered a violation of the order and a criminal threat.
5. Failure to Comply with Court-Ordered Child Visitation Rules
When issuing a restraining order, the judge may order a visitation schedule with certain restrictions that both parties – the restrained person and the protected person – must abide by. In some instances, a restrained person may violate the court order by not abiding by those restrictions. For instance, if a restraining order prohibits contact with the children, a restrained person may not contact the children, even through a third party.
6. Failure to Pay Court-Ordered Spousal and/or Child Support
A restraining order often includes the payment of court-ordered spousal and/or child support, especially when the parties are married and/or have children. The individual who fails to make those payments on time may unintentionally violate the restraining order. If you’re facing financial hardships and cannot continue to pay court-ordered payments, it is crucial to contact a lawyer as soon as possible to discuss your options.
7. Failure to Pay Certain Bills
In some cases, a restraining order may specify that certain bills are the responsibility of the restrained person. For instance, if a restraining order prohibits the restrained person from living in the shared family home, that person may still be responsible for their half of the mortgage payment or utility bills.
8. Failure to Return Property as Specified in the Court Order
A restraining order may order the restrained person to return personal belongings or property to the other party. Failing to return those items as specified in the court order can constitute a violation of the order.
9. Being in Possession of a Gun
In some cases, a restraining order may prohibit the restrained person from possessing a firearm. Being in possession of a gun would most likely be interpreted as your violation of the restraining order, even if you have no intent on using it.
It is critical that you understand the boundaries set out in the order and to ensure compliance. In many cases, people face criminal charges for violating a restraining order due to their failure to understand the specific requirements and prohibitions against them.
What Are the Penalties for “Violation of Court Order” Under CPC §273.6(a)?
In most cases, a violation of a restraining order is charged as a misdemeanor offense, especially if this is the first time the defendant is violating the order. A conviction can result in up to one year in jail and a maximum of $1,000 in fines. Alternatively, the judge may sentence the defendant to summary probation. In this case, the original restraining order will remain in effect.
If this is a second or subsequent violation of a restraining order or the case involves allegations of violence, the crime could be elevated to a felony punishable by up to three years in state prison and fines not exceeding $10,000.
What Are the Legal Defenses to Penal Code 273.6?
Every case is unique and it is best to speak with a lawyer to determine the defense strategy that is right for your specific circumstances. However, some of the common defenses that may be used when facing allegations of violating a restraining order include:
- Lack of knowledge. One defense strategy involves claiming that the defendant was not aware there was a restraining order in place. You cannot violate an order that you didn’t know existed or wasn’t served on you properly. If you can prove that you weren’t aware of the restraining, then the charges against you will be dismissed.
- Lack of intent. If you had no intention to violate the order and you can prove it, then you may have a solid defense. Generally, restraining orders come with a set of rules that you must follow strictly. However, if you unknowingly make a casual run-in with the victim or cross paths due to coincidence, you cannot be accused of violating the order.
- False accusation. It’s possible to be wrongly accused of violating the restraining order. In fact, false accusations are common due to the toxic nature of the relationship between the restrained person and the protected party. If you believe that you have been falsely accused of violating a restraining order, it is best to consult with a lawyer immediately. They will help you gather evidence and defend your innocence in a court of law.
- Inability to follow the terms of the restraining order. Sometimes, the terms of the restraining order can be so complicated that it’s easy to violate them. Some of the conditions imposed by the court could be hard for you to adhere to, especially if they are too broad or vague. In legal terms, this is known as an impossibility, that is, you couldn’t have reasonably followed the restraining order’s terms.
At the Law Office of Cherish Om, I am committed to answering your questions and helping you understand all of your defense options. After reviewing the facts of your case, I can help you formulate an effective defense strategy that is tailored to the specific facts of your case and takes into account the evidence that the prosecution has against you.
Violating a Restraining Order Penal Code PC 273.6 Frequently Asked Questions
Being charged with violating a restraining order can feel like a hopeless situation, especially when you do not know what to expect in the process. There are many relevant questions to ask a lawyer to determine your situation and understand your best course of action. The FAQ section below will address some of the questions you may have when being accused of violating a restraining order:
- How much jail time for violating a restraining order in California?
Yes, violating a restraining order can result in jail time. A person who intentionally and knowingly violates a restraining order in California can be charged with a misdemeanor offense, which is punishable in the state by up to one year in county jail and a fine of up to $1,000.
- What is the punishment for a second violation of a restraining order?
If this is not your first time violating a restraining order, the punishment will be more severe. Every subsequent violation within seven years of the first one can result in felony charges. A felony offense in California is punishable by up to three years in prison and a maximum fine of $10,000.
- Are there immigration consequences?
Many criminal convictions can result in deportation or the defendant being marked as inadmissible, which is why it is best to deal with any criminal charges head-on to maintain a clean criminal record. In most cases, a violation of a restraining order does not impact the defendant’s immigration status, though there may be exceptions to the general rule. While a conviction for violating a restraining order may not have major immigration consequences, having a restraining order issued against you in and of itself may affect your immigration status when trying to obtain a green card or a visa, according to the official website of the Judicial Branch of California.
- Do restraining orders show up on background checks?
Yes, restraining orders – when issued by the court – will usually appear on background checks conducted by law enforcement, authorized court clerks, and the Department of Justice, which often conducts background checks for private employers.
- Can I get my conviction expunged?
Yes, you may seek an expungement if convicted for violating a restraining order under Penal Code PC § 273.6. However, you must successfully complete probation and jail term, if imposed, to get your conviction expunged. You might want to speak with a lawyer to discuss your options for getting an expungement.
- Does a conviction affect gun rights?
A conviction under Penal Code PC § 273.6 does not affect your gun rights unless the offense is charged as a felony. According to California’s Department of Justice, convicted felons are a category of persons who are prohibited from owning and possessing firearms. Thus, if you are guilty of a felony violation of a restraining order, you will lose your right to own and possess firearms. A misdemeanor violation, on the other hand, does not affect gun rights.
- Can a victim violate a restraining order?
The victim – called the protected person in a restraining order – generally does not face legal repercussions for contacting the restrained person against whom the order was made. Only the restrained person will face criminal charges and negative consequences for violating the order. However, the protected person’s attempts to contact the restrained person may be used by the latter as a mitigating factor when being accused of violating the restraining order or as evidence in court proceedings when asking the court to lift the order.
The Law Office of Cherish Om: Top Criminal Defense Attorney in Watsonville, California
Dealing with accusations of violating a restraining order can be both frustrating and stressful. At the Law Office of Cherish Om, I understand the intricacies of defending clients who face criminal charges for violating a restraining order under California law. No matter what you have been accused of, I will work tirelessly to develop a well-crafted defense and will stand up for your rights during this challenging time.
Even if the charges are based on false accusations, you need to remember that there is too much at stake to take your chances in court alone. Contact my law firm today to request a case evaluation or arrange a meeting and start working on your defense immediately.
(831) 291-5315- om-law@outlook.com
1050 S. Green Valley Rd.
Watsonville, Ca 95076
