San Diego Violation Of Protective Order Attorney
In California, there are several rules that protect domestic violence victims from further abuse. These rules could be civil and criminal protection, also the Court could have the discretion to issue a restraining order option to protect the victim from the abuser.
A restraining order is a Court's rule limiting the conduct and freedom of the abuser to protect the victim, the order usually is to avoid the abuser of making contact with the victim. The rules of restraining order is going to vary depending on each case. However, sometimes the protective order is not enough to make the abuser stop from stalking or hurting the victim. In that case, the California Penal Code 273.6 established a charge of misdemeanor to the abuser that violates the Court rules. if a person intentionally and knowingly violates or does not respect a protective order issued by a Court, this conduct could be charged of misdemeanor. Thus, it is a crime to violate the terms and condition of California restraining order.
The restraining order rules could include prohibiting the abuser from texting, calling, emailing, stalking, hitting, threatening or disturbing the victim. Also, the provision of the restraining order could include no personal contact with the victim, as stay away from the victim at least a certain number of yards or the courts could rule that the abuser may not buy a firearm.
Furthermore, if you violated intentionally the rule from your restraining order, you could be charged of misdemeanor.
The most common conducts that could lead a person to a conviction:
- An ex-boyfriend who has a restraining order to not get close to his ex-girlfriend and one night he tried to entered at her apartment.
- A restraining order established that you may not call the victim and you keep calling her.
- A man that has a protective order against a woman, in which she may not disturb him and she keep disturbing anyway.
- A woman may not use the force against her husband, but she violates the rule and grabbed his arm and breaks it.
- A man that has a restraining order to not own or possess any firearms, he failed the rule and bought a shotgun.
Types of Restraining Orders
The California restraining/ protective order is issued to protect the victim from further domestic violence, civil harassment, elder abuse and workplace violence. The domestic violence protective order serves to protect the victim from the intimate relationship abuser. The civil harassment order usually is issued to protect the victim from abuse, in which the abuser is not intimate partner, such as people that the victim is not close and does not have an intimate relationship. Also, the victim from elder abuse could seek a restraining order against the abuser, with the purpose of protecting the elder from further physical, financial or emotional abuse.
There are different types of restraining order in California, the victim could seek an emergency protective orders "EPOs", Temporary restraining orders "TROs" and permanent protective order "PPOs", depending on the abuse committed by the abuser.
Emergency Protective Orders (EPO)
An emergency protective orders frequently is seeked by the police when they respond to a domestic violence call. A request for an emergency protective orders must be made when the police has probable cause that someone is in danger, meaning that, the officer must have reasonable ground that the abuser should not be close to the victim. If the judge issues an emergency protective order, the officer should inform the abuser and the order is going to be valid for seven (7) days.
Temporary Restraining Orders (TRO)
The temporary restraining orders is granted by a court when it is necessary to prevent irreparable injury to the victim. Usually the TRO will expire within two (2) or three (3) weeks, depending on each case. The TRO is going to be issued if the emergency protective order expires, or if there is a victim of harassment. Furthermore, California defined harassment as an unlawful violence or a behavior that could cause an injury to the victim, the injury could be emotional or physical. The courts will hold a hearing before the TRO expires to determine whether the temporary restraining order could transfer to a permanent restraining order.
Permanent Restraining Orders (PRO)
In order for a judge issues a permanent restraining order, the court must hold a hearing with both parties to determine whether the victim needs to extent the protection. The permanent restraining order will last up to three (3) years and may determinate some rules to the abuser, as leaving the home, or refraining from having contact with the victim, or even maintaining distance from the victim and also the abuser may pay the attorney's fee of the restraining order.
Usually, the victim does not need an attorney for seeking a permanent restraining order, but a person should always be represented by an attorney, since the paperwork could be overwhelming and complex, beside there is the emotional side of the case, it could be emotionally hard for the victim to seek an PRO by herself. San Diego Criminal Attorney could help you with the process.
On the other hand, if you need to contest a protective order, you should hire an attorney promptly to build a strong defense to invalidate the PRO. San Diego Criminal Attorney could build strong arguments that could challenge the protective restraining order.
In order for a defendant to be charged of violation of protective order, the prosecution must prove the following elements to the jury:
- A court had issued a written protective order after a conviction.
- The defendant knew about the court order.
- The defendant had the ability to follow the court order.
- The defendant willfully violated the court order.
Let's explain in details those elements of violation of restraining order for better comprehension. These conditions are essential for someone being convicted of this offense, if the prosecution does not prove these elements, a person should not be convicted of violation of restraining order. San Diego Criminal Attorney will work to prove the innocence of its clients.
Valid protection order
The main element for someone being convicted of this offense, there is must be a valid protective order against the defendant, the court order must be lawfully issued against the defendant. Also, any person might not be convicted for violating an order that is unconstitutional. Moreover, in order to enforce a protective order, the order must be legal and valid, lawfully. If the order was illegal or invalid, you should not be guilty of violation of a restraining order, if the protective order was illegal, it should not be bound by its terms. The order could be illegal for different types of reasons, the judge did not have authority to issue a restraining order, or there was no probable cause to seek for an emergency order, or the applicant did not give notice to the abuser about the hearing of permanent restraining order, in which is mandatory the presence of the abuser.
Knowledge about the restraining order
In order for a person being convicted of this offense, the prosecution must prove into court that the defendant knew about the restraining order and the defendant had the opportunity to become familiar with the order. Further, give notice to the abuser about the restraining order, it is the main requirement for the order to be valid. The notice must be served orally by the judge, if the abuser is present in the courtroom, or could be served in writing by a third-party who presents the order, usually those third-parties are police officers, or verbally by a law enforcement who has been called to enforce the order. However, the prosecution does not have to prove that the defendant read the order.
Ability to Comply With Order
As explained above, the court order must be valid and constitutional, in order to be legally bound against someone, meaning that the defendant must have an ability to comply with the order
Willfully violated the court order.
The main element that prosecution needs to prove to initiate the charges is that there was a willful action of the defendant. A person is acting in a willful way, when the intention is to do something on purpose, when there is no intent to hurt someone, gain advantage or break the law.
The evidence necessary to proof, is that the person, the defendant, willfully committed a conduct that would violate the restraining order, if the defendant know about the court order and intentionally choose to ignore it, you could be liable of this offense. Any conduct that intent to violate the order, could be enough to satisfy a violation of restraining order. However, there is just going to be a crime if you intent to break the order, by calling your ex-boyfriend, when you knew you were not allowed to do it. Or disturbing your ex-girlfriend calling her several times a day, when you were not permitted to do it.
However, if you did not have intention to violate the order, you should not be guilty of this offense, for instance, you are not allowed to get close to your neighbor, but you went to the new coffee shop in the city and bumped into her. In this case, you did not premeditate to get close to her, so you should not be convicted of this crime. If that was the case, you must demonstrate that you did not have intention to violate the order and that you did not communicate with the victim, or did not get close to her.
A violation of restraining order usually is a misdemeanor in California, punishable by a fine not exceeding one thousand dollars ($1,000) or by imprisonment in the county jail not exceeding one year, or the fine and imprisonment. Additionally, the punishment could include a misdemeanor probation, in which could grant mandatory counseling, domestic violence classes, anger management, restitution to the victim for counseling or medical expenses, also could include to payment to a battered women's shelter.
However, if the defendant has been convicted prior for violating a restraining order within seven-year period, the defendant's conduct involves violence or threat, the offense could be charged as a wobbler in California, meaning that the prosecution has discretionary to charge the defendant with either misdemeanor or felony. Moreover, if someone was charged with a felony, the penalties could be aggravated depending on the facts of the case, a felony is punishable by a fine not exceeding ten thousand dollars ($10,000) or by imprisonment in county jail not from sixteen (16) months to two (2) years, or both fine and imprisonment.
Additionally, if the victim suffered physical injury from violating the order, the defendant would face a minimum of 30 days in the county jail. And if the defendant had already been convicted for violating a restraining order within one year and the victim suffered a physical injury, the offense could be a wobble punishable by imprisonment up to three years in county jail.
A violation of protective order is serious offense in California Law, meaning a person could carries severe penalties from this offense, if a person is convicted with this type of crime, the conviction is going to be on the person's criminal records. If you are looking for a job and the employer does a criminal background check and there is a domestic violence offense register, it is likely that the employer won't hire someone with a misdemeanor or felony background. If you have been charged with this offense, you should promptly look for a Lawyer. San Diego Criminal Attorney has a great deal of success defending our clients and we can help you build legal defenses that it could be use to contest these types of charges. If you would like more information, please contact our successful staff to help you with your legal problems.
To contest the charges, San Diego Criminal Attorney would be able to use the following legal defenses:
- Lack of knowledge.
- Lack of intent to violate the order.
- Wrongfully accused.