WHAT IS A VIOLATION OF A PROTECTIVE ORDER?
California has a number of rues, which are designed to protect individuals who were the victim of domestic violence from additional abuse. The rules include the option of civil suits for protection, criminal prosecutions for protection and the Courts have the authority to issue what is known as a “restraining order” to protect the victim of domestic abuser from their abuser
When the Court issues a restraining order, and it is limiting the freedom and behavior of the convicted abuser. The goal of the restraining order is typically to prevent the abuser from communicating, or making contact with the victim. The rules governing the restraining order will be different in every case, because every case of domestic violence has different facts surrounding the offense. Sometimes however, a restraining order is insufficient to prevent the abuser from communicating or making contact with the victim. When this is the case, California has enacted a statute in the penal code to punish people for violating the protective order. California Penal Code §273.6 establishes a misdemeanor charge for individuals who intentionally, and knowingly, violates a court-issued protective order, this conduct could be charged as a misdemeanor. Therefore, it is a punishable offense in California to violate the terms and conditions of a valid restraining order.
There are a number of terms and conditions that a Court can apply to a restraining order. Some of these restrictions include prohibitions on communicating with the victim through text, call, or other electronic forms of communication. Other restrictions include bars on a person’s physical proximity to the victim; these include prohibitions on disturbing, stalking, or being within a specified number of feet from the victim.
If you violate any of the terms of a court-imposed protective order, you may be charged with a misdemeanor violation of California Penal Code §273.6.
Below is a list of typical actions that could result in a California Penal Code §273.6 conviction.
• An ex-fiancé, who was subject to a restraining order with a condition that he not be physically close to the victim, walks into the victim’s apartment.
• A restraining order imposes a condition that the abuser not disturb the victim, calls the victim 50 times a day.
• A woman received a restraining order prohibiting her from making forceful contact with her husband; she violates the order if she kicks her husband in the knee because she is angry.
• A man is subject to a restraining order, which has a condition that he is not allowed to own, or possess, a firearm for the duration of the order. The man violates the order if he goes to the store and purchases a shotgun.
WHAT TYPES OF RESTRAINING ORDERS EXIST?
In California, a restraining order, or any form of protective order is made for the purpose of protecting a victim from additional violence, harassment, abuse, or workplace violence. If the Court makes a domestic violence protective order, the purpose is to protect a victim where the abuser is someone the victim has an intimate relationship with. A civil harassment order is granted for the purpose of protecting the victim from abuse where the abuser is not an intimate partner of the victim. There are many orders than Court can issue, each with their own unique purpose, and with their own unique restrictions.
Some of the possible restraining orders a Court can issue include what is known as an “emergency protective order” also referred to as an “EPO”, a “temporary restraining order” which is frequently referred to as a “TRO”) and a “permanent protective order” which is referred to as a “PPO.”
WHAT IS AN EMERGENCY PROTECTIVE ORDERS (EPO)?
One of the types of protective orders the Court has the authority to issue in an effort to protect a victim of domestic violence is referred to an “emergency protective order” or “EPO.” EPOs are typically sought by law enforcement when they appear on scene in response to a domestic violence report. The request for the EPO must be supported by probable cause that someone is in danger. This means the police officer must have a reasonable, articulable, reason for why the alleged abuser should be restricted in the proximity to the victim they are allowed to have. If the judge agrees that there is probable cause to restrict the alleged abuser, the judge will issue the EPO. At this point the police officer will inform the alleged abuser that the order will be valid for seven (7) days.
WHAT IS A TEMPORARY RESTRAINING ORDERS (TRO)?
Another mechanism the Court can employ to protect the victim of domestic violence from the alleged abuser is known as a “temporary restraining order” or “TRO” The TRO will be granted by the Court when there is a showing that a restriction on the alleged abuser is necessary to avoid irreparable harm to the victim. A TRO typically lasts two (2) to three (3) weeks, depending on the facts giving rise to the conclusion that a TRO is necessary to protect the victim. A TRO will be granted if than EPO has expires, or if the victim has been subjected to harassment. California law define harassment as behavior, or violence, which may cause the victim to suffer an injury; either physical or emotional. The Court will generally conduct a hearing before the TRO is scheduled to expire in an effort to determine if the TRO should evolve into a “permanent restraining order.”
WHAT IS A PERMANENT RESTRAINING ORDERS (PRO)?
Yet another weapon in the judge’s arsenal designed to protect the victims of domestic violence from further abuse is known as the “permanent restraining order” or “PRO.” The PRO is the most severe order the judge can make, and thus requires a significant showing to support its issuance. The PRO can last up to three (3) years, and may include restrictions designed to deter the alleged abuser from having any contact with the victim. Some of these restrictions include forcing the alleged abuser out of the home, prohibiting communication with the victim, or a requirement that the alleged abuser maintain a set distance away from the victim at all times. In many events, the abuser will be forced to pay the victim, or pay for the victim’s attorney.
In most cases, a victim will not need to hire an attorney to assist them in seeking a PRO, but it is highly recommended that a victim hire one anyway. The paperwork involved in a PRO can be substantial, and tends to overwhelm individuals who are already in an emotionally fragile state. The attorneys at Orange County Criminal Attorney can assist with all aspect of obtaining a PPO, thus relieving some of the stress in an already stressful situation.
In contrast, if you are seeking to fight against the entry of a PRO against you, contact an OCCA attorney today. Having competent counsel on your side will allow you to build a strong defense against the PRO being entered, or alternatively a strong defense that the PRO is invalid in the first place.
WHAT IS THE LEGAL DEFINITION OF VIOLATION OF A PROTECTIVE ORDER?
To be convicted of violating a protective order of any variety, the Prosecution must prove 4 elements to the jury beyond a reasonable doubt:
1. There is a written protective order, which was issued by the judge after the Defendant was convicted;
2. The Defendant was aware of the order that was issue by the judge after their conviction;
3. The defendant was actually capable of following the terms of the protective order; and
4. The Defendant’s conduct which constituted the violation of the protective order was done willfully.
Since the Prosecution must prove every element of the crime beyond a reasonable doubt, it is important to understand what each element entails. The attorneys at Orange County Criminal Attorney have ample experience representing clients a vast array of criminal charges; including violation of a protective order. Utilizing that knowledge, your OCCA attorney will build the strongest defense available to any charges brought against you. A detailed analysis of the elements of the crimes is set forth below.
WHAT CONSTITUTES A VALID PROTECTION ORDER?
The first element of this crime requires a showing that there was a valid protective order in the first place. An order can be invalid if the restrictions are unconstitutional. The order could be invalid for a variety of reasons including (1) the judge did not have the authority to issue the restraining order, there no probable cause to support the issuance of an EPO, or the applicant never notified the Defendant of the PRO, which requires the presence of the abuser in order to be valid.
WHAT DOES “KNOWLEDGE ABOUT THE RESTRAINING ORDER” MEAN FOR PURPOSES OF THE CRIME OF VIOLATING A PROTECTIVE ORDER?
The next element a Prosecutor must prove is that the Defendant actually knew that the order was issued, and had an opportunity to inform himself of the terms of that order. In order to be valid, the Defendant must receive notice that the order has been issued. This generally occurs either orally by the judge in the court room, or through being served in writing by a third party, or by being informed orally by a police officer. It is important to note that the Prosecution does not need to show that the Defendant actually read the order, only that the Defendant knew the order existed, and had an opportunity to familiarize himself with that order.
DOES THE DEFENDANT NEED TO HAVE THE ABILITY TO COMPLY WITH THE ORDER?
As detailed above, a Defendant cannot be convicted of this crime if the order is invalid or unconstitutional. This means that if a Defendant is unable to follow the restrictions in the order, through no fault of his own, he cannot be found guilty of violating a protective order.
WHAT DOES IT MEAN TO “WILLFULLY” VIOLATE THE COURT ORDER?
Finally, the Prosecution must prove that the Defendant acted willfully when he engaged in the conduct that serves as the basis for the violation of the protective order. In order to prove this element, the Prosecution must show that the Defendant willfully acted in a manner that would violate the protective order. Any behavior that shows an intent to violate the order will be sufficient.
It is important to note that if you did not have the intent to commit the act which constituted a violation of the protective order, you should not be convicted of this crime.
WHAT PENALTIES WILL I FACE IF I AM CONVICTED OF VIOLATING A PROTECTIVE ORDER?
A violation of §273.6 is a misdemeanor in California, which is punishable by incarceration in county jail for up to one (1) year, a fine of up to one thousand ($1,000), or a combination of both. Further, you may be sentenced to misdemeanor probation which may require mandatory counseling, classes about domestic violence, anger management therapy, restitution to the victim of the violation to pay for medical treatment or counseling, or even restitution to a shelter for battered women
Further, if you have been convicted of a prior §273.6 violation within the past seven (7) years, or your conduct involved threats or violence, the Prosecution can choose to bring the §273.6 charge against you as a felony. If you are convicted of a felony violation of a protective order you may face a jail sentence ranging from sixteen (16) to two (2) years in county jail, a fine of up to ten thousand ($10,000) dollars, or a combination of both.
Finally, if the victim suffered any actual physical injury, you will face a minimum of thirty (30) days of incarceration. Additionally, if the victim suffered a physical injury, and you have been convicted of a §273.6 violation within the last seven (7) years, the Prosecution may bring the charge against you as a felony. If convicted under these facts will be facing up to three (3) years of incarceration, as well as a substantial fine.
WHAT ARE THE LEGAL DEFENSES MY ATTORNEY CAN RAISE IF I AM CHARGED WITH VIOLATING A PROTECTIVE ORDER?
Violating a valid protective order is very serious offense in California. This is especially true if the victim suffered a physical injury, or you have been convicted of this crime within the past seven years. In addition to your conviction appearing on your criminal record, you will be forced to enter the domestic violence register, which is viewable by many people and can result in your reputation being tarnished. Employers routinely conduct background checks to make the decision of whether or not to hire an applicant for a position with their company. Many employers do not want to hire people with a criminal background. If you have been accused of violating a protective order, contact an attorney from Orange County Criminal Attorney immediately. Having competent counsel on your side can make the difference between a conviction, and the penalties that go with it, and a verdict of not guilty from the jury. There are a number of defenses your OCCA attorney can raise if you are charged with violating a protective order including:
• You were not aware of the protective order, or its issuance.
• You did not intend to engage in conduct that amounted to the violation of the protective order.
• You were falsely accused of violating a protective order
• The protective order was invalid, and therefore unenforceable.