Violating a Restraining Order
What is the Law Prohibiting Violating a Restraining Order in California?
Violating a restraining order is defined in California Penal Code § 273.6.
In order to be found guilty of violating a restraining order, it must be proven that:
- 1)A Court issued a legal restraining order
- 2)The defendant knew about the restraining order
- 3)The defendant intentionally violated the restraining order
What is a Restraining Order?
A restraining order, also known as a protective order, is a document that is issued by a Court in order to protect another individual from certain acts like threats, stalking, and physical abuse. The order is specific in nature and dictates what type of contact is impermissible. The types of restraining orders include:
- Domestic Violence Restraining Order
- Civil Harassment Restraining Order
- Dependent Adult Restraining Order
- Workplace Violence Restraining Order
Domestic Violence Restraining Order:
Protects individuals from threats, stalking and physical abuse within intimate relationships.
Civil Harassment Restraining Order:
Protects people outside of an intimate relationship, such as neighbors, from threats, stalking, and physical abuse.
Dependent Adult Restraining Order:
Protects individuals who are 65 years of age or older from threats, stalking and physical abuse.
Workplace Violence Retraining Order:
Protects co-workers from threats, stalking and physical violence initiated by another employee.
The types of restraining orders, mentioned above, have different levels of protection. A Permanent Restraining Order is the most strict type of restraining order and provides protection for up to 3 years with a possibility for extension. Both the person seeking the protection as well as the person they are seeking protection from will need to appear before a Judge to determine if this is the type of order that should be granted.
A temporary restraining order is just that – temporary. This type of order can provide protection for as long as 3 weeks and will be issued if the applicant has suffered harassment in the form of violence, or the person the applicant is seeking protection from has exhibited behavior that causes emotional distress.
An emergency restraining order is issued in an emergency situation where an officer of the law feels the need to place a legal, but metaphorical, wall between two people. The order can be issued by a police officer and can last for as long as 7 days.
If a Court issues a restraining order, the defendant must abide by the parameters as long as the Court that issued the order had the authority to do so.
If the defendant was named in a restraining order, he or she must be given notice and an opportunity to read the order. The notice may come by way of a Judge in Court; in writing in the form of the person presenting the order to the defendant; or by a police officer called to enforce the original order.
To be found guilty of violating a legally issued restraining order, the defendant must have done so intentionally. This means that the defendant must have been aware of the order, what the order protects against, and still chose to perform one of the prohibited acts.
What are the Consequences of a Restraining Order Violation?
Under California law, violating a restraining order is considered to be a misdemeanor which carries penalties of up to 1 year in jail and a fine in excess of $1,000.
However, if the defendant has previously violated the terms of a restraining order within a 7-year period, the most recent violation could rise to the level of a felony. This would mean that the potential penalty would increase to 16 months, 2, or 3 years in prison and a $10,000 fine.
The penalties can increase even further if the violation escalated to the involvement of physical violence. For example, a first-time restraining order violator would face a minimum of 30 days in jail if the violation involved violence. A second-time violator would face a minimum of 6 months in jail.
It is also important to note that it is against California law for a person named in a restraining order to own a firearm. If the defendant does not turn the firearms over to the police and instead knowingly maintains ownership, an additional penalty of up to 1 year in jail and a $1,000 fine.
What are Possible Defenses to Violating a Restraining Order?
There are several legitimate defenses to a charge of violating a restraining order since the requisite elements to be proven are extremely subjective and intent-based. Some examples of those defenses are the following:
Lack of Knowledge: To be found guilty of violating a restraining order, the defendant must have been aware of the order's existence. This type of defense is successful in situations where the defendant was not present in Court when the order was legally issued. If it can be proven that the defendant never received proper notice of the order's issue, they cannot be held liable for its violation.
Lack of Truth: When a restraining order is issued, it is usually due to some type of strained relationship. Because of this, a heavy level of bitterness can exist between the two parties. As a result, it is possible that the person that sought the order would want the defendant to violate its terms so that a harsh punishment can be given out.
For example, an order is issued that stipulates that the defendant is not to talk on the phone to the other person. However, the issuing party text messages the defendant telling them that they would like to work their issues out and would like for the defendant to call them later in the day to do so. Because only a judge can lift an order, regardless of the issuing parties consent, the defendant would be found to be in violation of the restraining order if they called the other person later in the day like they were asked. It is possible that the issuing party would claim they never contacted the defendant and that the defendant intended the violation to occur. This type of trick is common and must be cautioned against.
Lack of Intent: To obtain a conviction in a restraining order violation case, it must be proven that the defendant intended to break the terms of the order. For example, if the defendant was ordered not to come within five feet of his spouse but the defendant accidentally runs into his spouse at a local flea market, the defendant cannot be found liable since he did not intend for the run-in to occur.
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