4 Things You Should Know About Violating a Protective Order

California Penal Code 273.6

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:

  • There was a valid protective order in place that was legally issued by a judge1;
  • The defendant had knowledge of the protective order’s existence and terms2
  • And the defendant intentionally violated the terms of the order.

 Defenses To Charges Of Violating A Protective Order

3.  Fortunately, there are several effective defenses to charges of violating a protective order:

Lack Of Knowledge

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.

false accusation sign
Example

If a judge issued an emergency protective order without holding a hearing, the defendant would not know that the order had been issued unless someone, usually a police officer, informed him of the order and served him with a copy. If the police officer failed to provide the defendant with proper notice of the order, then the defendant cannot be convicted of violating the order.

Lack Of Intention To Violate

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.

Example

If the defendant was ordered to stay 100 feet away from his wife, but the defendant accidentally crossed paths with his wife in an unexpected location such as at a gas station in a town where neither the defendant or his wife live, the defendant can not be convicted for violating the order.  However, if the defendant intentionally went to see his wife in violation of the order, knowing that he would see her, the prosecutor can prove the necessary intent. This is true even if the victim asked the defendant to meet her.  The victim’s invitation to meet is not a defense to violating a protective order.

False Accusation

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.

Footnotes

  1. 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] []
  2. Knowledge of Order Required. People v. Saffell (1946) 74 Cal.App.2d Supp. 967, 979 [168 P.2d 497] []
  3. 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] []

3 comments

If there is a criminal protective order and the person being restrained emails the protective party a message that they were going to call the persons job and get them fired, is it a violation even though there is peacefull communication allowed regarding children?

The mere sending of an email from the restrained party to the protected party after the issuance of the order is a violation of that order.

If the protected party comes to see the restrained at there place of residency is that counted as a violation of said protection order??!

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