1. Violating a protective order, sometimes called a “restraining order,” amounts to contempt of court and is a criminal offense under California Penal Code 273.6. Judges can issue protective orders in connection with both criminal and civil cases. Judges frequently issue protective orders in connection with California domestic-violence related offenses. Even if the order was issued in a civil case setting, a violation of the order is still a crime.
The Elements The Prosecutor Must Prove
2. In order to convict a defendant of violating a civil protective order, the prosecutor must prove:
Defenses To Charges Of Violating A Protective Order
3. Fortunately, there are several effective defenses to charges of violating a protective order:
If the defendant did not know that there was a protective order in place, then he cannot knowingly violate the order. This include having the oppotunity to read the order even if you did not actually read the order3.
Even if the defendant had knowledge of the protective order and its terms, the defendant still cannot be convicted of violating the order if his alleged actions in violating the order were not intentional.
Another available defense is false accusation. In some cases, a defendant can show that the alleged victim was simply lying when she reported that the defendant contacted her in violation of the protective order. In the absence of corroborating evidence, the case may be reduced to a he said/she said situation in which the prosecutor may have a difficult time carrying her burden of proving the case beyond a reasonable doubt.
Penalties For Violating A Protective Order
4. Protective order violations are usually charged as misdemeanor offenses, which carry penalties of up to one year in county jail, probation, fines of up to $1000. The crime can be charged as a felony under certain circumstances, depending on whether the defendant has previously been convicted of violating a protective order and whether the alleged violation resulted in any injuries to the victim.
If charged as a felony:
- The penalties can be even more severe, including time in state prison, and and fines of up to $10,000.
As a former prosecutor, Diana Weiss Aizman of the Aizman Law Firm has extensive experience and unique insight into the defense of charges of protective order violations. Contact the Aizman Law Firm right away if you are charged with violating a protective order.
- Order Must Be Lawfully Issued. Pen. Code, § 166(a)(4); People v. Gonzalez (1996) 12 Cal.4th 804, 816–817 [50 Cal.Rptr.2d 74, 910 P.2d 1366]; In re Berry (1968) 68 Cal.2d 137, 147 [65 Cal.Rptr. 273, 436 P.2d 273] [↩]
- Knowledge of Order Required. People v. Saffell (1946) 74 Cal.App.2d Supp. 967, 979 [168 P.2d 497] [↩]
- Must Have Opportunity to Read but Need Not Actually Read Order. People v. Poe (1965) 236 Cal.App.2d Supp. 928, 938–941 [47 Cal.Rptr. 670]; People v. Brindley (1965) 236 Cal.App.2d Supp. 925, 927–928 [47 Cal.Rptr. 668], both decisions affd. sub nom. People v. Von Blum (1965) 236 Cal.App.2d Supp. 943 [47 Cal.Rptr. 679] [↩]