A General Overview of Protective Orders
Where a restraining order exists, the restrained person should not make any form of contact with the protected person. There are many forms of contact; contact may include personal contact, which entails coming within a certain distance of the protected individual. Contact may also be electronic and may include interaction through emails, phone calls and texts, and any form of surveillance. Contact may also include interaction in social media platforms.
Types of Protective Orders
There are several types of protective orders in California, and not all types of orders have the same provision. Mainly, protective orders in California fall under four main categories, which include:
Domestic Violence Protective Order
This protective order protects a victim from threats or abuse from a person with whom they have a close domestic relationship. Domestic protective orders may exist between current spouses or registered domestic partners. The orders may also exist between significant others or former spouses and registered domestic partners. If a child is above 12 years, the child can file a protective order on his/her own. Another person may also file a domestic protective order on behalf of a child.
Elder or Dependent Adult Protective Orders- An individual who is above the age of 65 years may file an elder or dependent adult restraining order. In addition, a person between the ages of 18 and 64 who has physical or mental disabilities, preventing them from living a normal life may file a restraining order. Typically, elderly or dependent individuals file for protective orders due to abuse, neglect, deprivation, and hurtful treatment.
Civil Harassment Protective Order- If a victim is not eligible for a domestic violence protective order; the person may file for a civil harassment protective order. A victim can file this protective order against extended family, co-workers, neighbors, or roommates. A victim may file this protective order where there is unlawful violence. A victim may also file a civil harassment protective order where there is an incidence of stalking, assault, battery, or a credible threat of violence.
Workplace Violence Protective Order
An employer may file a workplace violence protective order. This protective order aims at protecting an employee from violence or threats in the place of work.
Irrespective of the form of a protective order issued against you, it is essential to seek the counsel of an attorney. The attorney will help you understand the provisions of your protective order.
Levels of Protection
In addition to the different types of protective orders, there are several levels of protection. Each level of protection has its own terms. The three different levels of protection offered to applicants of protective orders include:
Emergency Protective Order (EPO)
Just like its name, this is an order issued in an emergency. When the police respond to a domestic violence call, the police may issue an emergency protective order to shield the victim from further violence. The police contact the on-call judge to issue the emergency protective order if the police suspect that a person is in danger. If the offender is present, the police inform him/her about the emergency protective order, which takes immediate effect. An emergency protective order may protect a victim for up to seven days. Beyond seven days, a victim would have to visit the court to seek a temporary or permanent protective order. EPO offers interim protection to the victim while he/she is in the process of applying for a longer-term protective order.
Temporary Protective Order (TPO)
A temporary protective order may last for up to two or three weeks. A victim may request the court for a temporary protective order when his/her emergency protective order expires. Victims of harassment also request for temporary protective orders. What is harassment? For the purposes of California protective order, harassment refers to unlawful violence or a valid threat of unlawful violence. Any form of behavior that does not serve a legitimate purpose but only annoys or alarms another person is harassment. Harassment may also entail any kind of behavior that may cause the victim to suffer substantial emotional distress or any behavior that results in actual suffering of emotional distress by the victim. Before your temporary protective order expires, the court may hold a hearing. During this hearing, the court determines whether to issue a permanent protective order.
Permanent Protective Order (PPO)
After conducting a hearing, the court may issue a permanent protective order. The court may issue this order is that it believes that the person applying for protective order needs extended protection. The judge would listen to the side of the story of the victim and the defendant before issuing a permanent protective order. After listening to the side of stories of both parties, the court is able to decide whether to issue the protective order. The judge also decides on the types of restrictions to include in the protective order. The judge is also able to decide on the length of the protective order.
How long does a permanent protective order last? A PPO may last for up to three years, but if necessary, the court may extend the protective order. There may be several conditions of a permanent protective order. For instance, the order may require the restrained individual to leave home and to look for a new residence. The order may also require the restrained person to avoid any form of contact with the victim. The restrained person would have to avoid physical contact, contact by phone, or any other electronic communication with the protected person. The protected person may include a child, a domestic person, or a spouse. By avoiding contact, the restrained person should avoid coming into contact with items affiliated to the protected person, including pets.
A permanent protective order may also require the restrained person to maintain a certain distance from the protected parties. If the restrained person is in possession of any weapons, the court may require him/her to submit the weapons and prevent the defendant from acquiring new weapons. In some instances, the defendant may have to pay attorney fees for the party seeking protection.
The law does not require the person seeking a protective order to have an attorney. However, it is essential to note that securing a protective order entails a lot of paperwork and deadlines. Therefore, it would be wise for an applicant of a protective order to seek the counsel of an attorney. This way, the application process does not have to be complex and overwhelming.
If the defendant wishes to contest a protective order, he/she may seek the representation of an attorney. An attorney may challenge the validity of the protective order on behalf of the victim. An attorney understands the legal arguments that may successfully persuade the court/judge that the provisions of a protective order are unnecessary or unreasonable.
What Happens When You Violate a Protective Order?
Under California law, violating a protective order is a crime outline under Penal Code 273.6 PC. If you are subject to a restraining order and you do not adhere to the terms of the order, prosecutors may charge you under Penal Code 273.6 PC. To charge you and prove that you violated a protective order, a prosecutor would have to prove various elements.
The prosecutor must prove that the court or the judge issues a written protective order requiring you to stay away from the victim or requiring you to refrain from certain acts. The attorney must also prove that you were aware of the protective order against you. It must also be evident that you had the ability to follow the protective order. Finally, the prosecutor has to prove that you intentionally/willfully violated the protective order.
If the court or the judge issues a legal protective order against you, you have no choice but to adhere to the terms of the order. However, in some instances, a protective order may be issued illegally. A protective order might be illegal if the court that issued the order did not have the required authority to issue the order. The required authority also goes by the name power of jurisdiction. A protective order may also be illegal if there was no legal basis for issuing the protective order. The terms of a protective order cannot bind you if the protective order is unlawful. Even if you disobey a court order, an order of contempt will not stand if the underlying protective order is invalid or illegal.
How can you tell whether a protective order is valid or illegal? It is not always easy to know whether a protective order is valid or illegal. However, an experienced attorney can help you to determine the validity of a protective order. An experienced attorney can challenge the validity of a protective order even before you face an arrest for violating the order. Before you even face accusations for failing to comply with the terms of a protective order, an attorney can present a persuasive case in your favor.
How can the prosecutor prove that you knew about a protective order? If you had the opportunity to read the protective order even if you did not read it, the court automatically assumes that you knew about the order. The California law has in place notice requirements, which entails informing the restrained person of the protective order. It is mandatory to give the defendant a notice that his/her freedoms and liberties will be limited.
There are several ways of filing a notice. If the person being restrained is present in court, the judge may orally file the retraining notice to the person. The notice may also be in the form of writing by a third-party. The third-party may be law enforcement officers. The third-party may personally present the order to the defendant. The officer responsible for enforcing the protective order may verbally communicate the protective order to the party named in the order.
You are only guilty under Penal Code 273.6 PC. If you knew that the court issued a protective order, but you chose to ignore the protective order. For example, you may be aware that you should not contact your ex-wife yet you go ahead and send her a gift or flowers to say that you are sorry. This way, you would be intentionally violating an order, which you are aware exists. You are aware that the court or judge specifically ordered you not to contact your ex-wife yet you went ahead and acted contrary to the order.
At times, you may come to contact with the protected person by chance. If you did not intentionally meet the protected person, you are not likely to face charges for violating a protective order. For instance, the court may bar you from having any physical contact with your ex-wife. While going about your business in a shopping mall or in a movie theatre, you bump into your spouse. Under this scenario, you are not guilty of intentionally violating a restrictive order.
If you accidentally come across the protected person, the law requires you to leave the area immediately. You should refrain from initiating a communication with the protected person. This way, you will not face charges for violating a protective order.
Common Defenses for Violating a Protective Order Charges
With the help of an experienced attorney, you can employ various strategies to fight charges under Penal Code 273.6 PC. The attorney can help you assert various facts to show that you are not guilty of violating the protective order. Some of the common defenses include:
It is common for protected parties to claim that the defendant violated the protective order even when the defendant is innocent. For instance, the victim may lie that the defendant is stalking him or her. The victim may also claim that the defendant is doing other acts that do not comply with the protective order. The acts may include calling and then hanging up. Mainly, victims lie out of jealousy, anger, or an intention to seek revenge. It is also common for a victim to lie in order to gain an advantage in child custody battles or seek a favorable outcome of a divorce case.
While you are under a protective order, you should tread carefully. For instance, if the victim contacts you and suggests that you should meet in order to iron things out and reconcile, you should not agree. As long as there is a protective order restraining you from meeting with the victim, you should avoid any form of contact. Agreeing to meet the victim is not just a violation of protective order; it also forms a good ground for the victim to set you up and report you to the authorities. If the victim is bold enough to contact you and attempt to make you violate the protective order, the victim may also be bold enough to set you up with the police.
You Were Not Aware
You might not face charges for intentionally violating a protective order if you were not aware that the order existed in the first place. For instance, you may not have been present in court when the judge was issuing a protective order. You may also not have been present when the law enforcement officers sought an emergency protective order for the victim. If you can successfully prove that you did not receive a protective order, you cannot face charges. The court may have sent the notice of protective order to the wrong address for instance. The officer responsible for delivering the protective order to you may have delivered the order to the wrong person. If this is the case, you should not be responsible for violating the protective order.
Lack of Intent
At times, you may violate a protective order without knowing it. Even if you were aware of the existence of the protective order, as long as you did not intentionally violate the order, you should not face charges. This includes accidental violation of a protective order if you bump into the protected person in the streets, for instance.
It is important to note that only the judge can lift the terms of a protective order. Therefore, even if the victim contacts you and suggests that you reconcile, you should not agree. You should not agree to meet the victim even if the victim states that he/she no longer wishes to enforce the protective order. If the victim wishes to withdraw the protective order, he/she should visit a court of law and request the charge to lift the protective order.
Even if you feel or believe that the protective order is unfair, you should still avoid violating the order. You may feel that the court issued the protective order based on an overblown or exaggerated report by the victim. However, you must still comply with the terms of the protective order. If you fail to comply you may face charges under Penal Code 273.6 PC.
Penalties for Violating a Protective Order
Under California law, a violation under Penal Code 273.6 PC is a misdemeanor offense. If you violate a protective order in California, the associated penalties may include fines that do not exceed $1,000. You may also face imprisonment that does not exceed one year in county jail.
Instead of jail time, the judge may recommend probation and include some conditions of probation. For instance, the judge may require you to attend mandatory domestic violence classes. The judge may also recommend that you undergo mandatory counseling. The counseling may cover various areas, including anger management. You may also have to pay for the victim's shelter in the case of domestic violence. The court may also require restitution of the victim for any damage that the victim may have suffered due to your actions. Restitution may include medical costs incurred by the victim when seeking treatment for the injuries you inflicted on them. If the victim had to undergo counseling due to the trauma suffered because of your actions, counseling fees incurred by the victim might form part of restitution.
At times, the crime of violating a protective order may be a wobbler under California law. This means that the offense may either attract felony or misdemeanor charges. If you commit a second violation of a protective order within a seven-year period, the offense is a wobbler. This particularly applies if the violation of the protective order involves an act of violence or a valid threat of violence.
If the prosecutor charges an offense under Penal Code 273.6 PC as a felony, you will face enhanced consequences. The consequences may include probation and jail time of up to one year in county jail. You may also face imprisonment of 16 months, two years, or three years in California state prison. The court may also require you to pay a fine of up to $10,000. If you violate a protective order, and the victim suffers a physical injury, you have to serve up to 30 days in county jail.
For a 30-day sentence, if you serve a minimum of forty-eight hours in jail, the judge has the power to stay the balance of custody time. The same case applies if you serve 30 days on six-month imprisonment. Your attorney can make an effort by explaining to the judge that you are remorseful about your actions, and you understand that you must comply with the protective order. The attorney may present mitigating factors on your behalf. The attorney may also present evidence to the judge that you are in the course of completing your counseling.
While you are under a protective order, it is illegal to possess or acquire a firearm. If you go against the law and possess a firearm, you may face fines of up to $1,000 or serve jail time of one year in county jail.
Contact a San Diego Criminal Lawyer Near Me
If you or your loved one is facing charges under Penal Code 273.6 PC, the San Diego Criminal Attorney can assist. Contact us at 619-880-5474 and speak to one of our attorneys today.