Violation of an Order of Protection Under California Law

Why is it important to have an attorney assist when it comes to a violation of an order of protection?

Read all the details here.

Introduction

An order of protection can be used in many different types of court settings, such as domestic violence, civil harassment, workplace violence, or even elder abuse. They are used as a means of protecting the victim – even allowing for a cooling down period on an emergency basis.

According to California Penal Code 273.6, it is illegal to violate an order of protection once it is in place. So, let’s talk about what can happen if a violation occurs.

What is an Order of Protection?

An order of protection, sometimes referred to as a restraining order, is a court-issued mandate that can be used to protect certain individuals in cases of abuse, stalking, harassment, intimidation, etc. Often, these orders prohibit contact with the alleged victim in nearly every way – texts, phone calls, emails, social media, and in person. They may also forbid any attempts at communication through a third party or visiting certain places frequented by the victim, such as a home or workplace.

Each order of protection will vary in its terms, allowing them to be somewhat personalized based on a situation. The order is usually set to be in place for a certain amount of time – days to years. And, as long as the terms are followed, it can end without issue.

However, when an order of protection is violated, it is viewed as being in contempt of court. In other words, the court ordered you to follow certain rules and you broke them. Depending on the situation, you may find yourself facing criminal charges, a criminal conviction on your record, jail time, and even fines.

Types of Protection Orders in California

All orders of protection are not created equal in California. There are a couple of different types, including an Emergency Protective Order (EPO), Temporary Restraining Order (TRO), and Permanent Restraining Order (PRO).

An Emergency Protective Order is used when law enforcement intervenes on a domestic dispute. They can immediately call a judge to request protection for the victim which keeps the aggressor from having any contact. It takes effect immediately and lasts for 7 days.

A Temporary Restraining Order can be put in place after an EPO expires, as long as the victim appears in court and applies for it – with valid reason. This remains in effect for up to 3 weeks.

A Permanent Restraining Order involves both sides appearing in court and the judge hearing both arguments. Evidence is often required to prove the need for the order. If approved, it can last for up to 3 years – and can even be extended if necessary.

What California Law States

California Penal Code 273.6 states that, “(a) Any intentional and knowing violation of a protective order, as defined in Section 6218 of the Family Code, or of an order issued pursuant to Section 527.6, 527.8, or 527.85 of the Code of Civil Procedure, or Section 15657.03 of the Welfare and Institutions Code, 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.” There are additional penalties for violations, especially those that result in physical injury. For instance, section (b) of the same penal code states, “In the event of a violation of subdivision (a) that results in physical injury, the person shall be punished by a fine of not more than two thousand dollars ($2,000), or by imprisonment in a county jail for not less than 30 days nor more than one year, or by both that fine and imprisonment.”

To break it down, the penalties that are allowed under this law are:

• For a misdemeanor violation, the penalty can include up to 1 year in county jail and a fine up to $1,000.
• For more serious violations that include violence or injury, the penalty can include up to 3 years in California state prison and a fine up to $10,000.

The judge has every right to remand the defendant into custody if it is proven that the violation happened. Keep in mind that these penalties are solely for the violation and do not include any additional offenses, such as probation violations.

The Need for Legal Counsel

As you can probably imagine, not every case of restraining order violation is cut and dry. This is why having an attorney to represent you can be quite beneficial. While it varies greatly on why the order was put in place to begin with and what the violation entails, the prosecutor will be looking to prove the following:

• That there was, in fact, an order of protection legally signed by a judge and put into place.
• That you knew about the order of protection – including the terms laid out within it.
• And, that you intentionally violated those terms.

Whether you intentionally violated the terms or there is some underlying circumstance, it is possible for your own attorney, should you hire one, to use various defenses that will be effective, including:

Lack of Knowledge. You weren’t aware of the order of protection – or you didn’t have proper time or opportunity to read the order. After all, you cannot violate what you don’t fully know about.

Lack of Intention. The prosecutor has to prove you intentionally violated the order. But if the violation was not intended, you cannot be accused of the violation.

Being Falsely Accused. Being able to prove that the person claiming the violation was lying, especially by showing that there is no corroborating evidence or even by proving you weren’t where they claimed you were.

It is important to note that if the other party invites you to meet, you can be in trouble for violating the order of protection – and there is no defense for that.

Regardless of what you are dealing with when it comes to a violation of an order of protection, having an attorney on your side gives you an opportunity to have your rights acknowledged, addressed, and your rights protected.

So, if you find yourself in this situation – facing a violation of an order of protection – protect yourself by hiring an attorney.