Posted on January 14, 2016
“Restraining Order Violation” Defenses & Punishment | California PC 273.6
Labeled as a domestic violence charge, violating a restraining order is a criminal offense charged under California Penal Code § 273.6 making it unlawful to intentionally and knowingly violate a court issued protective order. For the purposes of this charge, an “order” may be a protective order issued in criminal court or civil restraining order or “TRO”. This offense is a misdemeanor but carries substantial consequences depending on the circumstances. You may find the following article helpful as it will address 8 important things you should know about charges of violating a restraining.
1. When Should I Retain a Lawyer?
If you’ve been arrested, charged, or are under investigation, it’s best to retain an attorney at the cases / investigations earliest juncture. Normally your accuser will file a police report and you will subsequently be contacted by a detective. By retaining counsel, your lawyer will speak with the detective on your behalf to ensure that you do not make an incriminating statement. In addition, if your accuser is making fabricated allegations that certain events occurred, then your lawyer should contact business, organizations, or individuals demanding that they preserve any and all evidence that could be useful to you. With the passage of time, crucial evidence is liable to be lost or destroyed. In most restraining order violation cases, you’re not arrested or charged for months after the alleged incident.
2. What Must the Government Prove for Violating a Restraining Order?
In order to prove that you’re guilty of violating a court order under PC 273.6, the government holds the burden to prove each of the following elements beyond a reasonable doubt:
1. A court lawfully issued a written order that you [stay away and/or keep a certain distance away and/or have no contact with your accuser and/or refrain from a certain act];
2. The court order was a protective / stay away / civil restraining order;
3. You knew of the court order;
4. You had the ability to follow the court order;
5. You willfully violated the court order.
3. What are the Legal Defenses?
I. Lawful Issuance
The court did not lawfully issue the restraining order or protective order. In other words, the judge could have abandoned their judicial role by imposing the order without any legal basis.
II. Knowledge of the Order
The government must prove that you were properly served with the restraining order – i.e., you had knowledge of its existence and contents thereof. If you were not properly noticed and served the restraining order, then there’s no way you knew you had to comply with it.
III. Willful Conduct
The prosecutor must prove that you willfully violated the order. Namely, the government must know that you acted with the designed purpose of violating the order. Therefore, if you accidently or inadvertently violated the order, then that will serve as a valid defense. For instance, you were shopping in the mall and coincidently ran into the other person you must stay a certain distance from.
IV. False Allegations
You’re being falsely accused from the individual who is accusing you or violating the order. For instance, your accuser could be your ex-spouse or former significant other seeking revenge based on previous relationship occurrences or perhaps to help gain custody of your children in family law court.
V. Miranda Rights Violation
If you were subjected to custodial interrogation by law enforcement, then they’re required to admonish you of your Miranda rights. Furthermore, it may be your incriminating statements which strengthen the government’s case against you. If your statements were illegally obtained, then your statements will be deemed inadmissible against you.
4. What is the Punishment for Violating a Restraining Order?
The punishment for violating a restraining / protective order will depend on whether you were previously convicted of this offense and/or whether your accuser suffered physical injury while you violated the order.
If you’re subsequently convicted of a felony and were placed on probation, then you may be eligible to reduce your felony to a misdemeanor upon successful completion of probation.
• PC 273.6(a) provides that you could be sentenced up to 1 year in the county jail and a fine amount not exceeding $1,000.
• PC 273.6(b) provides that if a violation results in physical injury, then you can be sentenced up to 1 year in the county jail, but not less than 30 days and a fine amount not exceeding $2,000. However, if you’ve spent at least 48 hours in jail, the judge may strike the 30 day minimum requirement if the interests of justice warrant it.
• PC 273.6(d) provides that you were previously convicted of this offense within the last 7 years, and your new charge contains a violence or a “credible threat” of violence, then the charge becomes wobbler. This means the government holds discretion when electing to charge you with either a felony or misdemeanor. A felony conviction carries 16 months, 2, or 3 years in the county jail, whereas a misdemeanor carries up to 1 year in county jail.
• PC 273.6(e) provides that if you’ve been previously convicted of this offense within the last year, and your new charge results in physical injury, the charge becomes a wobbler. A misdemeanor conviction carries up to 1 year in the county jail, but not less than 6 months. However, the court may strike the 6 months minimum requirement in the interests of justice if you’ve spent at least 30 days in jail. A felony conviction carries 16 months, 2, or 3 years in county jail.
5. What are Examples of Violating a Restraining Order?
• Intentionally showing up at your accuser’s work to yell at them for filing a restraining order.
• Following your accuser in your car within a distance in violation of the order.
• Personally calling your accuser or having a third party call your accuser to talk to them about modifying or terminating the order.
• Emailing or sending a text message apologizing for past events while the order is in place.
6. Police Communication
As noted above, when your accuser files a police report, the report is then forwarded to an investigating detective. Because your accuser normally has no corroborating evidence, the detective will call or meet with you to “get a statement” or get “your side of the story.” It’s in your best interest to politely decline giving a statement and demand the presence of a lawyer. Most of these cases are built on “he said she said” evidence. By making any form of a statement, you could be building a case against yourself and assisting your accuser and government in prosecuting you.
7. Restraining Order Expungement
If you’ve been convicted of violating a restraining order then you may be eligible to expunge your record under PC 1203.4. To obtain this remedy, you must be fully completed with your probation period. Afterwards, a specific petition must be filed with the court giving the prosecuting agency proper notice to respond. A hearing will then be held and if your petition is granted, the court will withdraw its finding of guilt and dismiss the conviction. Most people obtain this remedy for its considerable benefits in the private employment sector. For more information about expunging your record, contact the Law Offices of John D. Rogers.
8. Free Criminal Defense Consultation
Contact a Criminal Defense Lawyer at the Law Offices of John D. Rogers if you’ve been arrested or are under investigation for violating a restraining order under PC 273.6. Mr. Rogers offers free confidential consultations with no obligations.