Violation of a Restraining Order (HL)

California Penal Code Section 273.6

It is common to have a restraining order in place when facing or convicted of domestic violence charges. In California, it is unlawful to intentionally violate the terms or conditions of a restraining order or a protective order. At Hamasaki Law, we will guide you through the process from the moment we are contacted until your matter is resolved. We will spend the time with you explaining various options and strategies and we will work together to determine the best approach to fighting your case. Contact us now to discuss your case and let us help you through the process

Elements – What elements must be proved beyond a reasonable doubt?

In order to be found guilty of violating a restraining order or protective order you must have:

1) Issued a legal protective order,
2) you knew about the order, and
3)You intentionally violated that order

Penalties – What are the penalties of a Penal Code Section 273.6 conviction?

The penalties of a conviction for intentionally violating a restraining order or protective order vary depending on whether or not there were injuries and whether you have prior convictions for violating a restraining order or protective order.

Misdemeanor Restraining Order Violation

If you are convicted of a misdemeanor restraining order violation, you can be sentenced up to one year in county jail and fined up to $1,000.00. The judge can also impose other terms on your sentence like substance abuse counseling, anger management, domestic violence classes or restitution.

If there is physical injury and it is your first violation of a restraining order, you must serve a minimum of 30 days in county jail and the fine maxes out at $2,000.00. If it is your second conviction for a restraining order violation within the year and there was physical injury, the minimum sentence is 6 months county jail, up to one year and a fine of up to $2,000. Alternatively, your second offense within a year may be charged as a felony.

Under certain circumstances, courts can stay the minimum jail time requirement so long as you have spent 48 hours in custody for the 30-day minimum or 30 days in custody for the 6-month minimum. A criminal defense attorney may be able to persuade the judge to stay the remainder of the minimum by presenting mitigating factors on your behalf, explaining your remorse, showing that you are making progress or having completed progress, or other mitigating circumstances.

Felony Restraining Order Violation

Under certain circumstances, a restraining order violation because a “wobbler” offense. This means that under certain circumstances the district attorney has the option of charging it as a misdemeanor or a felony. It is a wobbler and may be charged as a felony if:

  • It is your second violation within seven years and this offense involves violence or a credible threat of violence – OR –
  • It is your second conviction within one year and there is physical injury.

If it is charged as a felony, you can be sentenced to up to one year in jail and probation or you can be sentenced to a term of either 16 months, 2 years or 3 years and are subject to fine up to $10,000. The judge can also impose certain conditions like counseling or restitution.

Defenses – What are common defenses to a violating a restraining order or protective order charge?

Below are common defenses to a violating a restraining order or protective order charge:

  1. The judge did not legally issue a protective order or the order was illegal. An order is illegal if the court did not have the authority to issue the order (i.e. it lacked jurisdiction) or if there was no legal basis to issue the order. If you believe there was no legal basis for the order to be issued, talk to a criminal defense attorney before willfully violating the order.

  2. You did not know about the restraining order.
    If you did not know about the restraining order, you could not have intentionally violated it. When a restraining order is issued, the person against whom the order is imposed must be given notice. Notice can be oral or written. For example, if a police officer tells you at the time of issuing an emergency protective order. if a judge tells you the terms in court, or if you are given a written copy of the order. If you were not in court when the order was made, it was sent to the wrong address, or served on the wrong person, you may not have been given proper notice and cannot be found guilty of violating a restraining order.

  3. You did not intentionally violate the order.
    You cannot be found guilty of violating the order if you did not do so intentionally. For example, if you run into the person you are supposed to avoid at a grocery store unknowing that he would be there. So long as you leave immediately and do not speak with the person, you cannot be found to have violated the order because your contact was accidental. It is important to note, that if the person you are supposed to stay away from contacts you first or shows up at your house, you cannot respond. Even if the person says that she no longer wants the order in place. You must still comply with the order. The judge is the only person who change the restraining or protective order.

  4. The accusations against you are false.

If you are someone you know has been charged with violating a restraining order or protective order, call Hamasaki Law today.