Violation Of A Protective Order

The state of California as well as every other state in the country have developed mechanisms to protect Victims of domestic violence from having harm inflicted on them by the same Defendant in the future. These mechanisms include both civil and criminal suits for protection. The most common form of protection is known as a “restraining order.” California Courts have the power to enter a “restraining order” in an effort to protect the Victim of domestic violence. The practical effect of a restraining order is to limit the behavior and freedom of a Defendant who has been convicted of a domestic violence crime as it relates to the victim of that crime.

There are a number of variations of the restraining order including: (1) an “EPO”, also known as an emergency protective order, (2) a “TRO”, also known as a temporary restraining order; and (3) a “PPO”, also known as a permanent protective order. The remainder of this article will discuss the various types of restraining orders, and the rules associated with them.

The first variation of restraining orders we will discuss is the EPO, or emergency protective order. The Court has the power to enter an EPO, and typically does so at the request of a peace officer who has responded to a call regarding domestic violence. In order to be a valid EPO, the requesting officer must have what is known as probable cause that the Victim is in danger and is in need of an EPO. Probable cause in this case requires an articulable and reasonable reason, based on the facts, that the person to be restricted should be kept a certain distance away from the Victim. If the judge believes the officer has satisfied his probable cause requirement, the judge will enter the EPO, which will be valid for 7 days, and the Officer will inform the restricted individual of the existence of the order.

Another variation of restraining orders is a TRO. In order to obtain a TRO, there must be an offer of proof to the Court that restricting the alleged abuser is required in order to prevent irreparable harm to the Victim. The lifespan of a TRO is between 2 and 3 weeks depending on the offer of proof that gave rise to the TRO in the first place. A TRO is typically entered after an EPO has run its course, or if the Victim has been subjected to conduct amounting to harassment. In turn, harassment is defined as conduct which has the probable outcome of causing the Victim to suffer physically or emotionally. It is common practice for the Court to hold a hearing prior to the expiration of a TRO to determine whether or not to impose a PPO

Another variation of restraining orders is a PPO. This is the harshest form of restraining order available in the Court’s arsenal, and is imposed only in the most extreme situations. In order to obtain a PPO, an offer of proof must show a significant need for a long term restriction on the accused. A PPO lasts up to 3 years, and can carry several burdensome restrictions.

It is not necessary, in most cases, for the person seeking a PPO to hire an attorney to assist them. However, hiring an attorney will greatly improve your chances of success; the paperwork to obtain a PPO is significant, and often times people seeking the PPO are facing significant stressors in their life. At Los Angeles Criminal Lawyer, we will take the time to prepare the PPO request for you, so you can put the events giving rise to a PPO request in the past.

Alternatively, if you are opposing a PPO, Los Angeles Criminal Lawyer will advocate on your behalf to avoid the harsh consequences of having a PPO entered against you. Having a skilled attorney on your side provides you the best chance to avoid the imposition of a PPO against you.

In order to be found to have violated a restraining order, the Prosecution must prove the following elements to a jury beyond a reasonable doubt:

1. A valid restraining order was entered;
2. The Defendant knew of the existence of the order;
3. The Defendant is able to comply with the order; AND
4. When the Defendant violated the order, they were acting willfully

Common sense dictates that a restraining order cannot be violated if it was an invalid order. There are several reasons a restraining order could be invalid including: (1) the restrictions violate the Defendant’s Constitutional rights, (2) the Judge who entered the order did so without proper authority, (3) there was insufficient probable cause to grant an EPO; or (4) the person seeking the PPO never notified the Defendant of the hearing, which requires the restricted person to be present at the hearing.

A Defendant cannot be convicted of violating a protective order they are not aware of. Thus, the Prosecution must show that the Defendant had knowledge of a valid restraining order, and had a chance to familiarize themselves with the terms of that order. As a practical matter, this occurs when the officer obtains an EPO and informs the restricted person, when the judge orally informs the restricted person of the terms, or when the restricted person receives writing from a third party. It is unnecessary to prove that the Defendant took the time to familiarize themselves with a writing they received. The rules only require that the restricted person had knowledge of the existence of an order, and had an opportunity to inform themselves of the terms of that order.

Ability to Comply

A violation of a restraining order cannot occur if the order itself is invalid. Further, a Defendant cannot be found to have violated the terms of an order, if those terms were impossible for the Defendant to comply with. For example, a restraining order that prohibits the Defendant from driving past the Victim’s house would normally be an acceptable restriction. However, if both the Victim and the Defendant live in the same town, and there is only one road to the Defendant’s work, which happens to pass the Victim’s house, the Defendant cannot be found to have violated the order.

There are two types of criminal intent required for nearly every criminal act; general or specific. General intent means that the Defendant intended to do the act that gave rise to the crime. Specific intent means the Defendant intended the outcome of their act, or acted for a specific reason. Almost all forms of battery are general intent crimes, which means that to satisfy the intent element of the crime, the Defendant only had to intend to do the action that resulted in the touching. It does not matter if the Defendant had no ill-will, or only meant to frighten the Victim The legal community has been engaged in a discussion as to whether this definition is sufficient, it has been suggested that the correct definition of willfully is a person acts “willfully” when they engage in conduct on purpose, they are aware of what they are doing, and they intend to engage in that act[i]. For practical purposes, absent extenuating circumstances, this element is fairly easy for the Prosecution to prove; many of the defenses your LACL attorney can raise will be aimed at negating the possibility that the Defendant was acting willfully.

A violation of §273.6 can be charged as either a misdemeanor or a felony.

If you are convicted of misdemeanor violation of a protective order, you may face up to one (1) year of imprisonment in county jail, and/o a fine not exceeding one-thousand ($1,000) dollars. Additionally, the Court may impose mandatory education on Domestic Violence, therapy, payment to the victim, and classes.

If you are convicted of felony violation of a protective order, meaning you have previously been convicted of a §273.6 violation in the last 7 years or your violation involved violence or threats, you will face incarceration in county jail for a period ranging from 16 to 2 years and/or a fine of up to $10,000

If the Victim suffered a physical injury as a result of your violation, you will face at least 30 days of imprisonment in county jail.

If the Victim suffered a physical injury as a result of your violation, and you have had a §273.6 violation in the last 7 years, you will face up to 3 years imprisonment and a significant fine.

A conviction for violating a valid restraining order can have a substantial impact on your livelihood. The impact becomes even more pronounced when you have multiple convictions for a §273.6 violation, or when the Victim suffered an injury.

Criminal convictions appear on your criminal background, which is viewable by anyone who conducts a criminal background check. Employers typically conduct a background check on applicants for positions with their company in an effort to weed out candidates. Generally, employers are hesitant to hire individuals with a criminal background.

As such, it is important to contact Los Angeles Criminal Lawyer the moment you are accused of violating a protective order. Doing this will provide you the best opportunity to avoid the potent consequences of a conviction. At trial, your LACL attorney will raise a number of arguments in your defense including:

• The Defendant did not have knowledge of the restraining order
• The Defendant did not have an opportunity to familiarize themselves with the restraining order
• The Defendant’s conduct did not violate the restraining order
• The restraining order was invalid
• You were falsely accused of violating the restraining order