Pursuant to Penal Code 273.6 PC, it is a crime for a person to violate the terms or conditions of restraining order, protective order, or stay-away order issued by the court. This crime is a misdemeanor that carries a maximum sentence of up to one year in jail. A second-offense violation of a restraining order, or one that involves an act of violence, can be charged as a felony and punished by up to 3 years behind bars.
Restraining Orders/Protective Orders
Restraining order – also referred to as a “temporary restraining order”, a “TRO”, an “emergency protective order”, or a “protective order”, this is a court order that is designed to protect a person from harassment, physical injury, stalking, dependent adult abuse or making credible threats.
The statute at 273.6 PC says that “any intentional and knowing violation of a protective order…is a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000), or by imprisonment in a county jail for not more than one year, or by both that fine and imprisonment.”
Possible defenses to contest a charge of violation of a restraining order include no lawful order, no knowledge, and/or no willful act. Criminal charges under this law are normally filed as a misdemeanor. It is punishable by summary probation, time in county jail for up to one year, and/or a maximum fine of $1,000.
The California criminal defense attorneys at Spodek law Group will show you in this article:
1. What happens if you violate a California restraining order?
The District Attorney must demonstrate the following to convict a person under PC 273.6 a court lawfully issued a protective order, the defendant knew of the court order, the defendant had the ability to follow the court order, and the accused willfully violated the court order.
Regarding the knowledge requirement, a defendant must have known about the existence of a court order for guilt to be proven. This includes the accused being granted an opportunity to read the order, even if he didn’t do so.
A person commits an act “willfully” when he does it willingly or on purpose.
In the event that the accused breaks another crime while violating a restraining order, he or she can be guilty under both PC 273.6 and the statute governing the other offense.
2. What legal defenses are there to 273.6 PC?
A defendant can use one of these common defenses to contest a charge under this statute.
Guilt can only be proven under this statute if he violated a lawfully issued order. If the defendant says that the protective order was not legal. For example, if there was no legal basis for a judge to issue an order, then it can be said that it was not lawful.
Another defense is for an accused to show that he had no knowledge of an order. Also, the accused must willfully violate a protective order to violate these laws. If the defendant can say that while he may have violated an order, he did not do so on purpose.
3. How much jail time does violating a restraining order carry?
A violation of California Penal Code Section 273.6 is usually charged as a misdemeanor, punishable by imprisonment in the county jail for up to one year, and/or a maximum fine of $1,000.
The crime becomes a wobbler offense if it is a defendant’s second conviction for violating a protective order, and the violation involved an act of violence. A wobbler crime is one that a prosecutor can charge as either a misdemeanor or a felony.
As a felony, this offense is punishable by time in state prison for up to three years and/or a maximum fine of $10,000.
4. Do restraining orders appear on background checks?
Restraining orders usually do not appear on criminal background checks since they are technically civil matters. Nevertheless, if a person violates a restraining order, that violation will show up in criminal background checks.
5. Can a person have a violating a restraining order conviction expunged?
An individual can usually get an expungement if convicted under this statute, provided that they completed probation (if imposed) or his jail term (if imposed).
6. Does a conviction affect a person’s gun rights?
A conviction under this legislation will only hurt a person’s gun rights if it is a felony conviction. There are no negative firearm consequences, though, in misdemeanor cases.
7. Is it possible for a victim to violate a restraining order?
Victims named as the “protected person” in a restraining cannot get into legal trouble for contacting the “restrained person” that the order was taken out against. Only the restrained individual faces arrest and criminal charges for violating the restraining order.
That said, it is not a good idea for victims to contact the person they need to have restrained. The restrained individual could use it as evidence in future court proceedings that the victim does not fear the restrained person, and that the restraining order is no longer needed.
8. What related offenses are there?
Six other crimes are related to violating a restraining order. They are domestic violence, stalking – PC 646.9, criminal threats – PC 422, elder abuse – PC 368, vandalism – PC 594, and contempt of court – PC 166.
For more detailed and personal legal advice or to discuss your case with a criminal defense attorney, give us a call at Spodek Law Group. We serve clients in Los Angeles, Long Beach, Pasadena, Orange County, San Diego, Riverside, Torrance and beyond.
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