If a court has issued a restraining order against you, you want to be careful with everything you do, especially regarding the person who sought the order. Sometimes, you might feel you were only acting within your constitutional rights when, in reality, you were violating the order. You will attract criminal charges under Penal Code 273.6 if you deliberately violate a protective court order. The consequences of a conviction under this law could be dire, including a permanent criminal record.

Fortunately, an experienced domestic abuse lawyer can raise several defense strategies to challenge the charges against you and prevent a conviction. If the prosecution has accused you of a protective court order violation in Bakersfield, we at California Criminal Lawyer Group can help you. We will answer your questions and provide valuable information to help your case. Call us to schedule a consultation.

Describing the Crime of Protective Order Violation Per Section  273.6 of the Penal Code

Section 273.6 of the Penal Code describes the criminal misconduct of restraining order violations. It constitutes a crime when a party purposefully and consciously violates a restraining court order issued against them for a domestic abuse-related offense. Breaking the terms and conditions of a valid protective order is deemed a misdemeanor violation that can lead to severe penalties based on the circumstances of the case.

Courts issue protective orders to shield victims from injury, harm, and other conduct like harassment, physical abuse, stalking, or threats. The restraining party is barred from reaching out to the protected party, for example, by phone, text message, social media, personal one-on-one contact, and email.

Per PC 273.6, a person can break restraining order terms in multiple ways. For example, if a restraining court order prohibits contact with a spouse, the restrained party will violate it if they continue to contact the protected party via text messages or if they follow them around to want to talk to them.

Another instance is when a court order prohibits a party from applying threats or force against their intimate partner, yet they threaten the partner to withdraw the protective order. In some instances, stalking is usually the main problem as far as protective order violations are concerned. This often entails conduct where a person continually follows the protected party or just loiters around their workplace or home.

If the D.A. has accused you of breaking restraining order terms, do not make statements to law enforcement to avoid self-incrimination. A lawyer intervening early enough can raise your chances of favorable results.

Types of California Restraining Orders

Courts issue various forms of protective orders to protect victims. Violating any of these orders in any way can lead to the consequences described under PC Section 273.6. These types of restraining court orders are:

  • Civil harassment restraining orders—Courts issue civil harassment orders to safeguard one party from another who is not an intimate or romantic partner, like a neighbor.
  • Domestic violence restraining orders (DVROs)—Courts issue DVROs to protect victims from abuse by their intimate partners.
  • Elder abuse or dependent adult restraining orders—Courts issue elder or dependent abuse protective orders to safeguard elders sixty-five years or older. These orders also protect dependent adults aged eighteen to 64 years against financial, emotional, and physical abuse.
  • Workplace violence protective orders—Courts issue workplace restraining orders to protect workers against violence and threats where they work.

Apart from facing charges under PC 273.6, violating the conditions or terms of these judge-issued orders may lead to charges of contempt of court under Penal Code Section 166.

Types of Protection

This is how the above orders are served and what protection they offer.

Emergency Protective Orders

The moment law enforcement responds to the location of a domestic abuse incident, it can contact the presiding judge immediately and ask them to issue an EPO, which bars the supposed offender from contacting the supposed affected party in any way.

When the supposed abuser is at the domestic violence incident scene, law enforcement will tell them the emergency court order goes into effect at that moment. It will remain good for up to seven days. Once the said days elapse, the affected party can go to court to ask for a TRO (temporary restraining order).

Temporary Restraining Orders

After an EPO’s validity period ends, a person can ask the court to issue a TRO against the restrained party. A person can also request that the court issue a TRO to protect them if they face harassment from someone else. A TRO can remain good for a maximum of 21 days. To request a TRO, you must fill out application paperwork stating you are subject to these:

  • Some kind of reasonable threat of facing violence or harassment
  • Behavior by someone that makes you suffer significant emotional distress
  • Annoying type of conduct for no valid purpose

The word harassment is defined as violence, cruelty, or forms of reasonable threats. Before your TRO’s validity period ends, the court will schedule a proceeding to determine whether it should issue a PRO (permanent restraining order).

Permanent Restraining Orders

To acquire a PRO against someone, that person must attend a scheduled court hearing. The presiding judge will hear arguments from the protected and restrained party before they enter their judgment.

Usually, the judge considers evidence showing that the accused's behavior has been and is still inflicting bodily or emotional harm upon you. Should they rule that they are issuing a PRO, they will establish specific restrictions and terms for the accused and the amount of time to have the PRO in effect.

Permanent restraining orders can remain good for thirty-six months, and their validity will be prolonged if necessary. Prevalent restrictions imposed against the accused include these:

  • Not contacting the victim in any way
  • Remaining a given distance from the supposed victim
  • The accused must vacate the home where they lived with the protected party
  • The accused must pay lawyer fees and victim restitution
  • The accused must surrender all of their guns to the authorities and cannot buy more

If you are a victim seeking to apply for a restraining order, you want to consult an attorney for help completing the necessary paperwork. If you are an accused person seeking to contest a restraining order issued against you, you also want to consult with an expert lawyer skilled in making winning arguments against all the accusations against you.

What a Prosecutor Must Demonstrate

If you fail to obey the restrictions of a valid protective court order, you can be prosecuted under PC Section 273.6 for a protective order violation, as mentioned above. To be found criminally liable for this violation, the prosecuting attorney must substantiate all the key facts making up the crime as outlined under CALCRIM 2701 Jury Instructions. These are:

  • A court did issue a legitimate restraining order against you
  • You knew about the court issuing the order against you
  • You were capable of following the order’s terms and conditions
  • You willfully and purposefully violated the court order

Note that not all protective orders are legal. For example, it could be that the issuing court lacked jurisdiction to grant the order. Protective orders can be issued to the accused persons by the court judge just by notifying them during a court proceeding. Alternatively, police officers can serve them, informing the defendants about the terms and conditions of the court order, but evidence of issuance is not necessary.

Before you are found guilty of a restraining court order violation, the prosecuting attorney must prove you knew a restraining order existed against you. That means you must be issued notice and have the chance to read the contents of the court order. Whether or not you read the order does not matter. All that matters is that you had the chance to read it.

Lastly, the D.A. must prove the accused purposefully violated the protective order terms, like sending the victim messages or calling them while prohibited. Consider this example: Emily obtained a protective court order against Sam. One day, Sam runs across Emily in a museum, where he never knew she would be at that time. In this case, Sam is not criminally liable for violating the restraining order against him, as he unintentionally saw Emily and never acted with willfulness.

Should you commit a different criminal misconduct while breaking the restraining order terms, you could be found criminally liable under both 273.6 PC and the law under which the second crime is described.

Consequences for 273.6 PC Restraining Order Violation

Restraining order violations are usually considered misdemeanor misconduct but may become a felony based on the case facts and the accused person's past criminal record. A conviction for a misdemeanor carries a year in custody, a mandatory thirty days in custody if the victim sustained an injury, and a court fine of a thousand U.S. dollars. Consequences also include compulsory counseling, domestic abuse classes, victim restitution, and making payments to a battered women's shelter.

If found criminally liable for a subsequent violation within seven years and your latest conviction entailed threats or violence, then it will become a wobbler offense that the prosecutor can charge as a felony or misdemeanor case.

A 273.6 PC felony for restraining court order violation carries sixteen months, two, or three years of incarceration, a court fine of ten thousand U.S. dollars, and up to twelve months of probation. If you have a past conviction within twelve months and the victim sustained an injury, you will be subject to a mandatory minimum term of thirty days of incarceration.

Firearm Restrictions

If an active court-issued order is against you, it is against the law to possess, buy, or own a gun. The court will also require you to sell all of your firearms or surrender them to the police. If you hold on to any guns, you may face new charges. And if you buy a gun or attempt to purchase one, it is a wobbler offense, and you will face a maximum of three years of incarceration if convicted of a felony.

On the same note, being convicted of a restraining order violation will impact your right to bear arms only if it is a felony conviction. California statutes state that anyone convicted of a felony cannot possess or own guns, meaning the court will strip you of your right to bear arms when you are found criminally liable for a felony offense of protective order violation. The court will not impose negative firearm repercussions if you are guilty of a misdemeanor violation.

Immigration Implications

A protective order violation conviction cannot affect the immigration status of an alien in many instances. Some criminal convictions lead to an immigrant being subject to removal or facing inadmissibility. Examples of these convictions are aggravated felony crimes and crimes of moral turpitude. A restraining order violation is not an aggravated felony or a moral turpitude crime.

Restraining Orders and Background Checks

Usually, protective orders do not show up in background checks as they are practically civil issues. Nevertheless, if you break the restraining order terms, your violation will show up in background checks.

Expunging Restraining Order Violation Convictions

Your record can be expunged if you are found guilty of a protective order violation. This is possible, provided you finish serving your probation or jail term, whichever was imposed.

Related Crimes to Restraining Order Violation

Various crimes are related to the offense of protective order violation, including the following:

Witness Intimidation, 136.1 PC

Section 136.1 of the Penal Code criminalizes dissuading, intimidating, or tampering with the victim of or a witness to a crime. Simply put, it means trying to stop a victim or witness from testifying about or reporting a crime or cooperating with the prosecutors or police in any other way.

Witness intimidation can be a felony or a misdemeanor. A misdemeanor is punishable by custody for twelve months and a fine of not more than a thousand U.S. dollars. A felony carries a custody time of not more than four years and a court fine not exceeding ten thousand U.S. dollars.

Contempt of Court, 166 PC

According to Penal Code Section 166, engaging in disrespectful behavior toward the court process constitutes the crime of contempt of court. Disrespectful behavior entails being loud or belligerent during court proceedings or declining to be sworn in as a witness in a trial. Being held in contempt of court is a misdemeanor carrying custody in jail for six months and a fine of not more than a thousand U.S. dollars. Based on the case facts, you may be subject to community service instead of the court fine.

Criminal Threats, 422 PC

Section 422 of the Penal Code criminalizes making criminal threats against another. You make criminal threats when you threaten to bodily harm or kill a person, and they, therefore, fear for their safety and life. The threat you make must be unequivocal, and you must have relayed it in writing, through an electronically transmitting device, or verbally to be convicted.

Threatening someone per PC 422 can be a misdemeanor or felony based primarily on case facts. You will face a year of custody and a thousand U.S. dollars in court fines if found guilty of a misdemeanor. A felony will carry not more than three years of custody and up to a thousand U.S. dollars in court fines.

Elder Abuse, 368 PC

Section 368 of the Penal Code defines elder abuse. According to this law, it is considered an offense if you abuse a person 65 or older. Abuse could be physical, emotional, financial exploitation, endangerment, or neglect.

Elder abuse can be a misdemeanor or felony based on the facts of the case. A misdemeanor is punishable by a jail term of 12 months, victim restitution, and a fine of not more than six thousand U.S. dollars. A felony carries up to four years in incarceration, up to ten thousand U.S. dollars in fines, and restitution.

Vandalism, 594 PC

The crime of vandalism is described under Section 594 of the Penal Code. The offense happens when you maliciously damage, destroy, or deface another's property with graffiti and other written matter. Vandalism is punished based on the value of damage done to a property.

Stalking, 646.9 PC

Section 646.9 of the California Penal Code makes it unlawful to follow, threaten, or harass someone to the level of them fearing for their life and safety. Stalking can be a misdemeanor or felony violation based on the facts of the case. A misdemeanor will subject you to 12 months in jail, probation, and a thousand U.S. dollars in fines. A felony will carry prison for five years or less, probation, and a fine of a thousand U.S. dollars.

Domestic Violence

Domestic abuse laws in California criminalize harming or threatening to hurt any intimate partner, including a current or former spouse, domestic partner, and cohabitant. Common domestic violence laws related to protective order violations are:

  • Domestic Battery, 243e1 PC
  • Corporal Injury to a Spouse, 273.5 PC

Fighting Protective Order Violation Charges

If you are charged with a protective order violation under 273.6 PC, your lawyer can present various defense strategies to achieve the most favorable outcome. They will review the circumstances of the supposed violation to establish an appropriate defense strategy, although the most prevalent defenses include:

No Knowledge

Your lawyer may successfully argue that you did not know a protective order existed against you. It could be that you were not notified and, thus, were unaware it existed. Remember that the prosecution must prove the court properly served you with the protective order, and you knew it was there.

Absence of Intention

Your lawyer may successfully argue that you did not purposefully violate the court order. For example, it could be that you just met the victim by chance while shopping for groceries, but you did not specifically intend to break the terms requiring no contact with them. In other instances, it could be that the victim initiated contact to try to reconcile your relationship.

Your lawyer may successfully show that you were wrongfully charged with a restraining order violation by a former spouse seeking the upper hand in a custody or visitation battle during the divorce.

It Was Not a Legitimate Order

The judge can only convict you under 273.6 PC if you broke the terms of a validly issued protective order. Your lawyer may be able to demonstrate that the restraining order issued against you was illegal. It could be that no legal basis existed for the judge to serve the order, or the court lacked the jurisdiction to serve it.

Restraining Order Violation By a Victim

The victim, known as the protected party in a protective order, will not be in legal trouble if they contact the restrained party against whom the protective order was issued. Only restrained parties face arrest, criminal charges, and incarceration for protective order violations.

Consequently, if you are the restrained party, it is never wise for the victim to contact you. On the brighter side, you could use the victim contacting you as evidence during your court proceedings and argue that the protected party is not afraid or scared of you, so the restraining court order is unnecessary.

Find an Experienced Domestic Abuse Lawyer Near Me

Judges, prosecutors, and police officers take threats of assault or violence by a restrained party very seriously since it is a sign that the person who sought protection is in imminent danger. That said, you want to seek assistance from a reputable lawyer if you are accused of violating the protective order against you.

At California Criminal Lawyer Group, we will aggressively dispute claims that the order was valid, that you knew it existed plus its terms, or that you intentionally broke its terms. If there is no evidence of service showing you knew the court order existed, or the D.A. fails to demonstrate any required element, we may be able to have your case dismissed. Whether it is a stay away or peaceful contact order, we will fight to ensure you acquire the most favorable outcome. Call us at 661-750-8230 for a complimentary consultation if you face charges for a restraining order violation in Bakersfield, and we will do everything possible to help you.