In California, a restraining order violation can have serious misdemeanor or felony consequences. In today’s blog, we will discuss the elements of a restraining order violation charge, the consequent misdemeanor or felony sentencing, and possible defenses against an accusation.
Consequences for Violating a Restraining Order
What Constitutes a Restraining Order Violation?
California law makes it a crime for a person to violate the terms of a court-issued restraining order, protective order, or stay-away order. First and subsequent offenses can be charged as either misdemeanors or felonies that carry significant jail time.
A restraining order, also referred to as a temporary restraining order, a TRO, an emergency protective order, or a protective order is a court order designed to protect an individual from harassment, physical injury, stalking, dependent adult abuse, or credible threats. To convict a person for a restraining order violation, the prosecutor must prove the following:
- a court lawfully issued a protective order;
- the defendant knew of the court order;
- the defendant had the ability to follow the court order; and
- the accused willfully violated the court order.
Note that there are 6 crimes commonly related to violating a restraining order:
- domestic violence;
- criminal threats;
- elder abuse;
- vandalism; and
- contempt of court.
Some examples could be:
- a defendant in a domestic violence case made phone calls to threaten the protected person in violation of a domestic violence restraining order;
- a defendant stalked a co-worker in violation of a workplace violence restraining order;
- a defendant text messaged a person in violation of a civil harassment restraining order.
If an accused commits another crime while violating a restraining order, they can be guilty of both crimes and could face combined penalties.
Penalties and Sentencing
A first offense for a restraining order violation is generally charged as a misdemeanor punishable by up to 1 year in jail and/or up to $1,000 in fines. In some cases, a judge can award misdemeanor or summary probation in place of jail time.
Note that a restraining order violation becomes a wobbler offense (a crime that a prosecutor can charge as either a misdemeanor or a felony) if:
- it is a defendant’s second conviction for violating a protective order; and
- the violation involved an act of violence.
If the offense is charged as a felony, an individual could face state prison time for up to 3 years and/or a maximum fine of $10,000.
Restraining order violations will appear in criminal background checks, but a person can get an expungement for the conviction in certain cases. If the defendant completed probation (if imposed) or any required jail time, they may be eligible to seek expungement with the help of a lawyer.
Keep in mind that a misdemeanor conviction will not affect a defendant’s gun rights, but a felony conviction will prohibit an individual from owning or possessing a gun. In other words, anyone guilty of felony violation of a protective order will lose their gun possession rights.
Defend Against a Charge
A defendant can work with an experienced attorney to contest a charge of a restraining order violation. 3 common defense strategies are arguing:
- no lawful order;
- no knowledge; and/or
- no willful act.
With the first defense method, a defendant can claim that a protective order was not legal. For example, they could prove that there was no legal basis for a judge to issue the order. After all, a person can only be guilty if they violated a lawfully issued order.
A defendant could alternatively argue that they had no knowledge of an order. Recall that the person must know of a restraining order to be guilty of a violation under California law.
Similarly, an accused must willfully violate a protective order to be convicted under this statute. As a result, a defendant could claim they did not purposefully violate the terms of an order, such as committing an act on accident.
Talk to an Experienced California Lawyer Today
If you have been accused of violating a restraining order in California, seek an attorney immediately. As a restraining order violation is a wobbler offense, a good lawyer could make the difference between arguing a misdemeanor charge or felony charge. The legal team at Corrigan Welbourn Stokke, APLC can evaluate the facts of your situation and build the most effective defense for you to mitigate or even dismiss your charges.
Schedule a consultation with Corrigan Welbourn Stokke, APLC today for more information!