In many cases of alleged domestic violence, domestic abuse, or stalking, the court may issue a restraining order against someone to prohibit them from contacting another. The restraining order will generally prohibit any contact and may restrict where someone can go and what they can do. Violating a restraining order may lead to criminal charges, including a fine and jail time.
Criminal Protective Orders
In California, the court may issue a restraining order in cases of domestic violence, elder or dependent adult abuse, civil harassment, and workplace violence. These include emergency, temporary, or permanent protective orders.
An Emergency Protective Order (EPO) can be issued on short notice but is only valid for a short amount of time. This usually occurs in cases of domestic violence where the court issues an emergency order against contact between the batterer and victim. After 7 days, the court will need to issue a temporary restraining order, where the subject may have a chance to respond to the order.
A Permanent Restraining Order (PRO) may be good for up to 3 years, with possible extensions after the 3-year period. A PRO generally requires notice to the subject of the order, giving them a chance to respond to any allegations against them at a hearing.
Restraining orders generally prohibit certain types of contact. The exact terms of the restraining order will depend on the situation, as determined by the court. Restraining orders may include personal conduct orders, stay-away orders, and residence exclusion orders.
Personal conduct orders prohibit specific actions against all individuals named in the restraining order, including:
- Texting or messaging through social media;
- Sexually assaulting;
- Destroying property; or
- Disturbing the peace of protected individuals.
A stay-away order requires the restrained person to keep a specified distance from protected persons and specified places. This includes the protected person's home, workplace, children's school, vehicle, or other places named in the order.
A residence exclusion order, also known as a “kick-out” order, requires the restrained person to move out of the place where the protected person lives. They may be limited to taking only clothing and personal belongings with them until a court hearing.
Many criminal protective orders also prohibit the subject from owning, receiving, purchasing, or possessing a firearm. This often applies to restraining orders involving domestic battery or domestic abuse. If the subject of the order has a firearm, they are required to turn over any guns to law enforcement or sell them to a gun dealer.
Anyone who is prohibited from having a firearm found to be in possession of a firearm or fails to turn over their guns is subject to misdemeanor criminal charges, punishable by up to a year in prison and a fine. However, if an individual under a restricted CPO purchases or attempts to receive a firearm, they may face a felony.
Criminal Penalties for Violating a Restraining Order
The penalties for violating a restraining order under California Penal Code PC §273.6 depend on the individual's criminal history. A first offense for violating a protective order is punishable by a fine of up to $1,000 and up to a year in jail.
If violating the restraining order results in a physical injury to any person, the defendant shall be punished by a fine of up to $2,000 and up to a year in jail, with a minimum sentence of 30 days. The court does have the discretion to reduce the 30-day minimum sentence in the interests of justice, provided the defendant spends at least 48 hours in jail.
On a second or subsequent conviction for violating a restraining order within the prior 7 years that results in injury carries a minimum sentence of 6 months in jail. The court does have the discretion to reduce the 6-month minimum sentence in the interests of justice, provided the defendant spends at least 30 days in jail.
Factors in determining whether to reduce the sentence include:
- The seriousness of the violations;
- Whether there were additional violations of the order;
- Probability of future violations;
- Safety of the victim and the victim's family; and
- Whether the defendant goes to counseling.
If probation is granted, the court can impose a number of probationary conditions for the defendant to follow. This includes making a payment of up to $5,000 to a battered women's shelter or shelter for elder persons or dependent adults. The defendant may also be required to reimburse the victim for costs of counseling or other expenses.
Defenses to Violating a Restraining Order
There are a number of possible defenses to charges of violating a restraining order. Violating a protective order requires the defendant knowingly and intentionally violated the order. It is a defense to charges of violating a restraining order if the defendant did not know they were in violation of the order.
In some cases, a person may be unaware they are subject to a restraining order. If an emergency restraining order was issued when they were out of town, or the notice of the order was sent to the wrong address, the subject of the restraining order may not know they are doing anything in violation of the court order.
Innocent people may also be falsely accused of violating a restraining order. The alleged victim or their friends or family may make false claims that the subject was seen driving by the house, making phone calls, or showing up at a prohibited location.
East Bay Restraining Order Attorney
Lynn Gorelick has more than 30 years of criminal defense experience defending her clients who have restraining orders for domestic violence or other restrictions. She understands how to approach the individual facts of each case for the greatest chance of success, keeping her clients out of jail and keeping a clean record. Whether you are arrested in Oakland, Richmond or anywhere else in Contra Costa County or Alameda County, contact Lynn Gorelick.