Violation of Protective Order
Violation of a protective order is a common occurrence in California probably because of the simplicity surrounding the crime. For instance, you could be committing the offense if you get close to a protected person whom you believe that you have consent to get close to him/ her. If you are accused of violating a protective order in Los Angeles, the LA Criminal Defense Attorney Law Firm is ready to defend you and ensure your side is heard in court.
What Defines a Protective Order?
This is otherwise known as a restraining order. It is an order issued by the court to protect an individual from physical violence, harassment, stalking, abuse or threats. The person who receives the order is named therein and he or she is not supposed to have any contact with the person the order protects (victim). Contact includes text messages, phone calls, social media messages, surveillance or emails. Indirect communication with the victim, such as using a third party to send messages to the victim, is also forbidden in the protective order. There are basically four types of protective orders that California courts can issue. They include;
Domestic violence protective orders: The court issues out this to protect a victim from abuse by someone he/she has shared an intimate connection with.
A civil harassment protective order: It protects a victim from a person who is not an intimate partner. For example, a co-worker, a neighbor, and any other person who is not closely related to the victim.
A dependent adult or elderly abuse protective order: This kind of a protective order is served to protect the elderly or a dependent adult. Elderly people are those that are 65 years and above. Individuals between 18 years and 64 years old and suffer from disabilities are dependent adults. These people are protected from emotional, financial, and physical abuse or neglect.
A workplace violence protective order: An employer requests this to protect his/her employee against violence or any threats of violence at the workplace.
Different Protection Levels
The above-mentioned protective orders protect victims to a certain level. We have three protection levels within each one of them. They include;
Emergency Protective Orders
As the name suggests, these are issued in case of an emergency situation. Most of the time, they are requested by law enforcement officers responding to a scene of domestic violence. If the police officer has any reason to believe a person might be in danger, he or she will immediately contact a judge and request for the order. The order prohibits the offender from continuing to have any contact with the victim.
The officer is supposed to communicate to the offender about the issued order. The order is effected immediately and is valid for seven days. When seven days elapse, the victim may go to court and request either a temporary or a permanent protective order.
Temporary Protective Orders
A court issues a temporary protective order when you are a harassment victim or if your emergency restraining order has expired. An application is simply done by filling an application form in which you will show that you are being harassed. This includes experiencing an annoying behavior from the defendant which has no legal purpose, illegal violence or threats of illegal violence or you are being subjected to emotional distress by the defendant. The court will convene a hearing whereby it will decide if a permanent protective order should be issued. This is normally done before the temporary protective order expires.
Permanent Protective Orders
A permanent protective order is issued if after it conducts a hearing, the court believes that you need prolonged protection. The judge hears the case of both parties, i.e. the victim and the defendant before making a decision as to whether he/she should issue the permanent protective order, the kind of restrictions the order will comprise, and how long the order should last.
A permanent protective order can last for a maximum of three years. It can, however, be prolonged if need be and it may require the restrained person to;
- Leave the residence and get him/herself a new place
- Not have any contact with the victim. This includes telephone and personal contact or contact through other electronic channels
- Keep a specified distance from the person the order protects
- Surrender any weapons he/she owns and not to obtain new ones
- Pay the fee the victim’s attorney will charge
In case you need to challenge a restraining order, we advise that you hire a skilled attorney who will contest its validity for you. This is because such attorneys know the kind of legal defenses that are most likely to convince a judge. Your attorney can challenge the restrictions included on a restraining order and argue that they are unreasonable or unnecessary.
The Procedure for Serving a Protective Order
Once the court determines that you should be issued with a protective order, the date and time are set for a hearing to take place. After this has been set, the protective order papers are then served to you. The papers serve as notice to alert you that the victim has filed a petition against you.
Protective order papers include the date and the time the hearing will take place, a statement of the action requested and any document the victim will have included which supports his/her petition. The papers are served within 10 to 20 days to the date of hearing and you will have until this period to answer to the statement of the petitioner.
Laws Concerning the Violation of a Protective Order in California
A protective order violation is governed by Penal Code (PC) 273.6. If a judge issues you with a restraining order, then you intentionally do not comply with its terms and conditions, you will be charged with violating this code. Violating a restraining order can be considered contempt of court. California State’s laws consider this a criminal offense whose penalties include fines or imprisonment or both.
Elements of the Crime
For you to be convicted for violating a protective order, the prosecutor should prove beyond any reasonable doubt the following factors;
- You were issued with a legal restraining order from the judge
California law dictates you to obey a restraining order a judge issues against you and follow its terms to the latter. However, not all protective orders are legal. The reason could be that the court that issued the order did not have the legal jurisdiction to do that. Also, it could be that the order was not issued on a lawful basis. Therefore, if the restraining order is invalid, you aren’t obligated to comply with the terms and cannot be prosecuted for violating a court order if the order in itself is invalid. The prosecutor has to prove that the given order is valid and was issued by an authorized court.
If you have any reason to believe the protective order issued against you is illegal, you should consult with your attorney. An experienced attorney will help you contest the order before you get charged for disobeying it. It is usually easier to persuade a judge at such a stage before a prosecutor charges you for not complying with the order.
- You were aware of the order
The prosecution has to show that you had knowledge of the order for you to be sentenced for violating it. He or she must also demonstrate that you had the chance of reading the order. Note that if you had the opportunity to read it but did not do so, you can still be convicted. In California, the law is categorical about notice requirements. If you are being issued with a protective order, you have to be notified that your freedom is being restricted. You can be served with the notice through one of the following ways;
- Verbally by a judge if you presented yourself in court
- Someone else can issue it to you in writing. For instance, an officer will personally present it to you
- A law enforcement officer who is called upon to impose the order can issue it to you verbally when he/she establishes that you were not aware that the order existed.
Note that protective orders have to be served in person. This implies that they cannot be served by mail or through a phone call.
- You deliberately violated the order
If you deliberately decide to ignore a protective order that you know it was legally issued by the court, you will be violating PC 273.6. For instance, if the order restricts you to contact your wife, then try to send her an apology gift, you are deliberately disobeying the order. Nonetheless, if you are restricted from seeing your wife then you accidentally run into each other into a bakery store, you are not guilty as you did not make the contact intentionally. Your attorney can show that after noticing her presence, you quickly left the store and did not attempt to have a conversation with her.
- You were capable of adhering to the order but did not do so
A protective order has to include reasonable terms and conditions so as not to place prejudicial or biased restrictions on a person’s freedom. This means that in the event you find the terms impossible or unreasonable to be complied with, you are not guilty if you don’t comply with them accordingly. In case you are in this situation you can consult your attorney who will contest the legality of the terms.
Penalties for Violating a Protective Order
Violating a restraining order is a misdemeanor offense. If found guilty, the punishments will include a fine not exceeding $1,000 or a one-year county jail sentence. In some cases, you could face both fine and jail sentence penalties. However, if you are violating a protective order for the second time in a period of seven years, it becomes a wobbler offense mainly if the violation involves violent acts or a threat to carry out a violent act. In this case, if you are charged with a misdemeanor, the punishments are a maximum of a one-year county jail sentence or a fine not exceeding $1,000 or both penalties. If it is a felony, the punishments will include probation and a maximum of a one-year county jail sentence, 16 months, 2 years or 3 years state prison sentence and a fine not exceeding $10,000.
If a judge grants you probation, he or she is at liberty to order pertinent conditions of probation like;
- Compulsory counseling which may include anger management, classes of domestic violence and substance abuse
- Generating payments to a battered women’s shelter
- Compensating the victim any expenses incurred due to the offense
Also, if the victim suffered a bodily injury in the commission of the offense, you will be subjected to a constitutional minimum of 30 days county jail sentence. If it is your second offense in a period of one year, and in commission of the crime the victim is physically injured, the crime is considered a wobbler and its consequences will include either between 6 months and one year jail sentence if it is a misdemeanor and probation and a maximum of one year time in county jail or 16 months, 2 or 3 years county jail sentence in case it is a felony.
According to California protective order laws, the 6-months and 30-day sentences that are imposed on the defendant in case the offense resulted in a physical injury should be compulsory. However, it is usually not the case in some cases. After you have served 48 hours of a 30-day time and 30 days of the 6 months’ time, the judge will have the authority to stay the balance of your sentence time. Your attorney will have to do the following in order to persuade the judge;
- Present any mitigating factors
- Show how sorry you are and that you realize that you should let the victim regain security
- Show proof that you show signs of successfully finishing your counseling
Protective Order Violation and Firearms
California law prohibits the possession, ownership, purchasing or acquiring through any other means, a firearm when you have an active protective order against you. The constraints are normally on the front page of a protective order. You will also see the instructions to surrender your firearm to a local police officer or to sell it to an authorized gun dealer.
In case you are found guilty of knowingly owning or possessing a firearm at this period, you will be committing a misdemeanor. The consequences include a maximum of $1,000 fine and up to one year sentence in county jail. If you buy, receive or try to receive or buy a firearm at this time, you will be charged with either a misdemeanor or a felony. For a misdemeanor offense, the penalties are similar to those of owning or possessing a firearm. For a felony offense, the penalties include a maximum of $1,000 fine and a maximum of 3 years state prison sentence.
We have a variety of legal defenses that apply to PC 273.6 violation. An experienced restraining order attorney would know how to argue them for you and get your case dismissed. Here are some of them;
- You didn’t have the knowledge of the protective order
In the event that you were not aware that the protective order existed, you are not guilty of deliberately violating it. This defense can work best in case you weren’t in court when the judge was issuing the protective order or you were absent at the scene when the police officer was requesting for an emergency restraining order. Additionally, if your attorney can prove that you didn’t receive notice of the order, you will not be convicted for violating that order.
- You didn’t have the intent
You might have known that a protective order was issued against you. However, if your lawyer can demonstrate that you didn’t know you were violating the order, you are not guilty of the charges against you. For instance, accidentally bumping into the victim in a public place is not an intentional act.
Note that if the victim tries to reach out to you in an effort to reconcile you should not comply. It is only the judge who can lift the order. Therefore, if you are in this situation and you truly trust that the victim doesn’t want to continue enforcing the order, the victim should contact the judge and have the order terminated before you can make contact. Additionally, if you trust that the order was not appropriately issued, you have to comply with it if you did not contest it. Failure to comply renders you guilty.
- False Allegations
It is possible that you can be set up to violate a restraining order. For instance, if the victim pretends to have forgiven you and wants you to meet only to call the police on you, you can argue that you were falsely accused. Additionally, the victim can just claim you disobeyed the order when that is not the case. For example, s/he can lie about you stalking him/her or doing acts that do not need physical proof. Jealousy, anger, custody battles or revenge can provide a motive for false allegations.
Related Offenses to a Protective Order Violation Offense
Domestic Violence (PC 373.5)
California laws define domestic violence as threatening or harming an intimate individual. Intimate persons include your former or current spouse, someone you have lived or live with, a person you used to date or are dating and a parent to your child. If a police officer is present at a domestic violence scene, he or she can call a judge to serve an emergency restraining order. Often, a person violates a restraining order if he/she is committing another domestic violence act against the victim.
Stalking (PC 646.9)
According to stalking laws of California, it is illegal to threaten or harass someone else to an extent that they fear for their safety and that of their family. This offense is a wobbler and its consequences include a fine not exceeding $1,000 and a maximum county jail sentence of one year if it’s a misdemeanor. If it’s a felony, it is punishable by a maximum of three years state prison sentence and a not more than $10,000 in fines. You also may be issued with a protective order.
If you still stalk the victim even after being issued with the order, you will be committing a felony which is punishable by a maximum of 4 years’ time in state prison. Additionally, in case you have had prior convictions of domestic abuse, violating a protective order or a criminal threat, you will be charged with a wobbler offense. In this case, you will spend a maximum of 5 years in state prison if it is a felony.
Criminal Threats (PC 422)
A California criminal threat offense happens when you threaten to hurt or kill a person and that person has a reason to be terrified that you intend to fulfill the threat. Making a criminal threat will make the court issue you with a restraining order. If you still make the threats even after being issued with the order, you will be charged with violating PC 273.6 and PC 422.
Making a criminal threat is a wobbler offense punishable by up to one year sentence in county jail and a maximum of $1,000 fine for a misdemeanor and a maximum of 3 years state prison sentence for a felony.
PC 368 protects the elderly from neglect, physical, financial or emotional abuse. You will be issued with a protective order if you violate the law on elder abuse. If you continue with the abuse, you will be charged with violating PC 273.6 and PC 368. This is a wobbler offense whose consequences include a maximum of a one-year county jail sentence if it is a misdemeanor and a maximum of 4 years state prison sentence if it is a felony.
If you are being charged with a crime feel free to contact our Los Angeles Criminal Defense Lawyer for a free consultation.