Violation of a Restraining Order

Violation of a Restraining Order - California Penal Code Section 273.6

Actual Case

Everett and Sue had two infant children together.  The couple had an on again, off again, relationship in which they would separate for some time and then come back to each other.  There had been numerous acts of domestic violence each against the other.  Frequently, when they were feuding, one of them would apply for a restraining order which often was granted.  When Everett retained me he had been accused of violation of a court order, but after the accusation he and Sue had gotten back together.  I was able to demonstrate to the D.A. that the couple was back together, that Sue did not want prosecution, and that Sue had voluntarily had contact with Everett.  As a result, the District Attorney dismissed the charges.

WHAT IS VIOLATION OF A RESTRAINING ORDER?

P.C. 273.6, or violation of a restraining order, is a failure to abide by the terms of a restraining order (also known as a protective order.) These include domestic violence, workplace violence and civil harassment restraining orders, and may be issued to protect a person from physical abuse, harassment, stalking or threats. Typically, the restrained person is prohibited from any contact with the protected person, either in person, by telephone or by electronic communications such as text or e-mail.

To prove that the defendant is guilty of violation of a restraining order under 273.6, the prosecution must prove the following facts or elements:

  • The judge ordered a legal protective order; and
  • the defendant knows about the order; and
  • The defendant intentionally violated that order.

EXAMPLES OF VIOLATION OF A RESTRAINING ORDER

Don and Maggie broke up 6 months ago, Don has continued to call Maggie many times a day and has shown up, uninvited, to her home and work. After Maggie obtained a restraining order against Don, he no longer comes to her home, but he continues to call her. Don has violated the restraining order because any contact is forbidden.

Paul and Sam are neighbors who got into a fistfight where Sam's nose was broken. Sam got a restraining order against Paul. They run into each other at a nearby store. Paul immediately makes his purchase and leaves without talking to Sam. Sam calls the police to have Paul arrested for violating the order. Paul can't be charged because he did not intend to run into Sam and left as soon as possible.

PENALTIES FOR P.C. 273.6

For a first offense, P.C. 273.6 violation of a restraining order is a misdemeanor and can result in the following penalties:

  • 3 years Summary probation;
  • Up to one year in county jail; and/or
  • A fine of up to one thousand dollars ($1000.)

Probation may include terms of mandatory counseling (including anger management, domestic violence and substance abuse counseling,) payments to a battered women's shelter and restitution to the victim for any counseling or medical expenses that were reasonably incurred as a result of the offense.

If the protected party suffers a physical injury, the defendant faces a statutory minimum of at least thirty (30) days in county jail.

When there is a second charge of P.C. 273.6, violation of a restraining order, within a one year period of a prior conviction and the violation includes an act of violence or a credible threat of violence, the offense is a wobbler and can be charged as a misdemeanor or felony at the discretion of the prosecutor, depending on the facts of the case and the defendant's criminal history.

A misdemeanor can result in the following penalties:

  • 3 years Summary probation;
  • Up to one year in county jail; and/or
  • A fine of up to one thousand dollars ($1,000.)

A felony can result in the following penalties:

  • 5 years Formal probation;
  • Sixteen (16) months, two (2), or three (3) years in state prison; and/or
  • A fine of up to ten thousand dollars ($10,000.)

If the protected party suffers a physical injury, the defendant faces a statutory minimum of at least six (6) months in county jail.

It is illegal to own, possess, purchase, or otherwise acquire a gun or other firearms while the restraining order is in effect and the restrained person must either relinquish their weapons to a local law enforcement agency or sell them to a licensed gun dealer as instructed on the face of the protective order. If the defendant knowingly owns or possesses a firearm while the order is in effect they can be charged with a misdemeanor with the following penalties:

  • 3 years Summary probation;
  • Up to one year in county jail; and/or
  • A fine of up to one thousand dollars ($1,000.)

If the defendant purchases, receives or attempts to purchase or receive a firearm while the order is in effect the charge is a wobbler, with the misdemeanor penalty as above, and a felony with the following penalties:

  • 5 years Formal probation;
  • Sixteen (16) months, two (2), or three (3) years in state prison; and/or
  • A fine of up to ten thousand dollars ($10,000.)

COMMON DEFENSES FOR P.C. 273.6

Lack of knowledge:

If the defendant was unaware that a protective order had been issued because they were not present in court at the time and had not received notice then they can't be convicted of  a violation.

Lack of intent:

If the defendant had no intention to see the protected person but happened to be at the same location at the same time then the defendant can't be convicted of violating the restraining order.

False allegations:

It is not unheard of for the protected person to make a false allegation due to anger, jealousy or a number of other factors. If this is the case an attorney can have the alleged incidents investigated to expose the truth.

HOW WE CAN HELP

I have been practicing criminal defense for over 35 years.  I have represented people on hundreds of violation of restraining order cases and have a proven record of success.  I will begin by combing the police reports for any helpful information and inconsistencies and then will meet with you to discuss your side of the story and to determine possible defenses.  I employ a team of investigators, legal researchers, and expert witnesses that will help present the strongest possible case.  Often, in their attempt to find someone responsible for a crime the police will arrest the wrong person. Sometimes the police will take an innocent situation and charge someone with a crime.  I served for over sixteen years as a Judicial Officer of the Sacramento Superior Court and have established key relationships that can be used to greatly benefit my clients.  I will aggressively fight for you to get you the best possible result on your assault case including taking the case to trial if needed.  Call Foos Gavin Law Firm at (916) 779-3500 or email us at This email address is being protected from spambots. You need JavaScript enabled to view it. for a no-cost initial consultation."


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