Vista Criminal Attorney law firm specializes in criminal defense in the Vista, California area. We are particularly rated well for our expertise in the courtroom, and we will successfully gain a favorable ruling on your behalf in case you are charged with a violation of a restraining order.
What is a Restraining Order?
It is also called a Protective Order. It is an authoritative command that is issued by a court against an accused person, prohibiting that person from carrying out a specific action, especially in regard to the aggrieved party. For instance, they might be stopped from contacting or visiting the complainant. Its aim is to protect the victim from physical injury, threats, harassment or stalkers.
Violation of a California Retraining Order
The California Penal Code 273.6 PC prohibits and punishes anyone from going against the provisions of a restraining order. This is considered to be contempt of court and is punishable by jail terms and fines.
The penalties rendered to you for violating a restraining order are determined by the level of injuries caused to the victim, facts of the case and the number of times you have committed the crime of violating a restraining order. To a certain extent, this crime is considered a wobbler, where a prosecutor reserves the right to charge you with a misdemeanor or felony violation of restraining court order.
For the prosecution to build a watertight case, they must prove the following elements of a crime in a court of law.
- That the court had legally issued a legal restraining order against you,
- That you were well informed and aware of the restraining order,
- That you willingly breached the restraining order.
A legal protective order is one that is directed by a court that has the jurisdiction to exercise such authority and an order that is validly issued on a legal basis. California courts have in the past established that you cannot be charged for violating a restraining order if the order itself is illegitimate or invalid.
In California laws, you are assumed to have been aware of a restraining order against you if;
- The judge read out the terms of the restraining order in court where you were present.
- A notice was written to you and served by a third party, maybe a police officer or it was sent to you via first class mail to your most recent address. You are considered to have had knowledge of a restraining order if the service was completed, even if you did not read the contents of the notice.
- A law enforcement officer is called on you for violating a restraining order and they verbally communicate to you that a protective order has been issued against you. It is the disposition of the police officer to determine whether or not, you were aware of a restraining order against you in the first place. If they find that you were not initially informed, then you won’t have to face any charges in this current case but in any subsequent violations, you might have to face the law.
Finally, the prosecution has to show beyond a reasonable doubt that you intentionally ignored court directions, restraining you from undertaking certain actions such as visiting your ex-wife or even going close to her house. For example, if Jane has a restraining order against John who is barred from ever contacting her, and he sends her flowers even if to apologize for any wrongdoing, he could be charged for breaking the terms and conditions of the court order if arrested. However, in case John and Jane bumped into each other in a mall and John did not make any contact with Jane or he left the mall immediately after noticing her, then he would not be held liable for violation of the California Penal Code 273.6 PC. Avoiding contact and leaving the mall or keeping distance could be possible defenses in instances like this, where an unplanned violation of the court orders could happen.
Legal Defenses for Violating a California Restraining Order
Hiring an accomplished Vista criminal defense attorney could present you with a lifeline in case you are facing violation of a restraining order charges. There are a number of possible defenses that an attorney could help you articulate in court, including;
- Lack of knowledge- If you were not present in court when a restraining order was served against you, no officer served you with a notice of the restraining order or even communicated this to you verbally; you stand a chance in your defense, citing lack of knowledge. Better yet, if no written communication was mailed to you because they confused your address or they did not have your latest address, you cannot be held liable for breaching the California Penal Code 273.6 PC.
- Lack of intent- If you unpremeditatedly met the aggrieved person in a common area, for example, a mall or at a family reunion, you would not be convicted of violating the restraining order because the contact was not predetermined.
Only a judge can discontinue a restraining order, so even if there was reconciliation between you and the complainant, you cannot contact them until a judge intervenes. It is important that you adhere to this rule because they could set you up into contravening the terms of the restraining order.
If you suppose that the restraining order was wrongly issued, you need to contact an attorney who will help you to present your claims before a judge, instead of trying to contact the complainant, since you will be going against the conditions set out by the restraining order.
- False accusations- It is possible for the complainant to call law enforcement on you claiming that you contacted them or were stalking. This is common in domestic quarrels, where a spouse is seeking vengeance or financial gain. Our attorneys will dutifully and thoroughly study your case to find deep-rooted defenses to use against any allegations that you face.
- Invalidity of the restraining order- The validity of a restraining order could be put in to question with an attorney poking holes in the way it was first issued. If the arrest was not done in a constitutional manner, they could argue on the grounds of constitutional rights violation.
- Record expungement- This is a court directed process, where a criminal conviction record is set aside under the Penal Code 1203.4 PC. This means that it is not visible in the records system available to the public. You are only qualified for a record expungement if you; did not serve any jail time, met all the terms of your sentence and probation conditions, did not breach the violation of restraining order terms, and have not done any other illegalities such as DUI’s. If it is granted, you can seek to run for political roles, apply for jobs in the public domain or apply for state licenses.
Penalties and Sentencing for Violation of a California Restraining Order
The Penal Code 273.6 PC of the California laws considers a violation of a restraining order a misdemeanor which attracts a jail term of up to one year in county jail, or a fine of up to one thousand dollars, ($1000). This is mostly the case for first-time offenders. A judge may also prescribe a period of supervision over you and order that you undertake the following probation terms:
- Pay restitution to the victim in case of expenses that were incurred in either seeking medical assistance or psychological counseling,
- Sign up for compulsory counseling classes for anger management, domestic abuse or substance abuse’
- Payments to a Women’s refuge shelter.
The first-time contravention of a restraining order that ends up in physical injury or harm to the complainant demands a compulsory jail term of no less than thirty days (30) in a county jail.
A successive violation in seven years where there was use or attempted use of violence is a wobbler, which leaves the prosecution with the discretion to charge it as a misdemeanor or a felony. A misdemeanor is penalized by a fine of a thousand dollars and up to a year in county jail. The punishment for felony violation of a restraining order is quite severe, requiring you to undertake probation, one year, sixteen months to two or three years in state prison and a ten thousand dollar fine. If you also inflicted injury to the complainant you face the required thirty-day minimum inacounty jail.
The second sentencing within a year, where the protected person suffers bodily harm is also a wobbler where a misdemeanor is punishable by six months to one year in jail while a felony offense is punishable by a year, two or three years in county jail and probation.
If you inflicted bodily harm on the complainant you would have to face a mandatory thirty days to six months in county jail. However, if you have already served two days of the thirty-day ruling or a month of the six-month ruling jail time, a Vista law firm attorney is able to convince the judge to drop the remaining jail term. Our attorneys are able to do this by proving to the court that you are undertaking counseling classes and expressing to the court your remorse and your willingness to allow the aggrieved their freedom.
Since the law does not allow you to possess or acquire a firearm if you have a restraining order against you, you need to surrender any firearm to the local police or sell them at a licensed gun dealership. Possession or ownership of a firearm through this period will lead to a misdemeanor charge, penalized by a year in a county jail or a fine of a thousand dollars. Any attempt to possess a gun either by purchasing one or attain one by whatever means through this period is punishable and is considered a wobbler crime, it is punishable by a thousand dollars fine or a jail term of up to a year for the misdemeanor and a maximum of three years in state prison for the felony charge.
There are a number of crimes that are closely related to a violation of a restraining order, either because one causes the other or because they can be charged together. They include;
- Domestic violence- Most restraining orders are issued against a person who has threatened or caused injury to their intimate partners, in breach of domestic violence laws. California considers ‘intimate partners’ to be father or mother of your child, your current or former spouse, a person you live or lived with or a person you dated or are dating.
Domestic violence is punished under the California Penal Code 246 (e) (1) as ‘domestic battery’ or under Penal Code 273.5 ‘causing injury on an intimate partner’. It attracts serious consequences including a restraining order and;
- Compulsory jail timeand probation,
- Obligatory domestic violence classes,
- Restitution to the spouse,
- Loss of personal rights such as to custody of your children and gun ownership,
- A criminal record,
- And, consequences to immigrants such as deportation.
- Stalking- The laws prohibiting stalking in California are defined in the Penal Code 646.9 PC which criminalize the act of repeatedly following, harassing or threatening another person to an extent that they are not sure of their own safety or that of their loved ones. If found guilty of stalking, you face a California wobbler charge, with a misdemeanor attracting a thousand dollars fine and a year in jail while a felony attracts a ten thousand dollars fine or up to three years in state prison. A restraining order is also issued against you. A violation of the restraining order in this particular case will be automatically charged as a felony, where you could get up to four years in the state correctional facility.
If you had been found guilty of other crimes such as domestic violence, violation of a protective order or issuing of criminal threats and then stalking you are charged with a felony where if convicted, you could get up to five years in a state prison.
California indirect cyberharassment laws under the Penal Code 653.2 PC punish cyberstalking, which basically is stalking done on an online platform such as social media or email. Breaking this code often calls for the issuance of a restraining order, and in some instances, this may lead to a violation of a restraining order charges.
- Criminal Threats- Breaking the Penal Code 422 PC California criminal threats laws may have the court grant a restraining order against you and any successive threats made to the complainant henceforth will have you charged with PC 273.6 violation of a restraining order and PC 422 criminal threats laws as well. This code punishes the act of issuing threats to kill or cause injury to another person who has reason to believe that you have the intentions to execute the threats.
California criminal threats laws treat this crime as a wobbler, where you get up to one year in county jail and a maximum of a thousand dollars in fines for a misdemeanor and up to three years in a state facility and a charge under the California three strikes law.
- Elder Abuse- California Penal Code 368 PC prevents actions that might cause bodily, emotional or financial harm to persons protected under the law as elders, that is, 65 years or older. Violations of this code are punished by up to a year in a county jail or up to four years in state prison for the misdemeanor and felony respectively. Sentences in this charge may also attract restraining orders and any subsequent violation may be punished under penal code 273.6 PC
- Vandalism- Laws punishing vandalism are detailed in the California Penal Code 594 PC. They define vandalism as causing deliberate damage to another person’s property or even property that you share with an intimate person. Vandalism is a wobbler, with convicted persons facing California misdemeanors or felonies depending on the value of the damaged property or criminal history.
If you destroyed your ex-girlfriend’s car which you’ve been using while you are under a restraining order, you could be charged with a violation of a restraining order.
- Contempt of Court- California Penal Code 166 PC which prohibits contempt of court, is similar to 273.6 PC in that both are against disobeying a judge’s orders but penal code 166 PC is quite broad as it also punishes other crimes which touch on contempt of court. Picketing, for example, against a court order will be punished under contempt of court.
This crime is punished as a misdemeanor but a serious charge such as that involving gun restriction while under a court order is seen as a wobbler.
Find a Vista Criminal Attorney HandlingViolation of Restraining Order Near Me
We at Vista Criminal attorney law firm are widely recognized for our diligent services and ability to procure favorable outcomes for our clients who are facing violation of a restraining order charges. Call us today at 760-691-1551 to help you with your case. When things are tough, you need us by your side. So, call today.