Free Consultation for Violation of Restraining Orders in San Jose, San Mateo or Palo Alto
Restraining Order Attorney Explains Penalties for Violation of a Restraining Order
Temporary restraining orders (TROs) are easy to acquire in California. In fact, if a family member wants to, they can start the application process and get it completed without you being aware of it until you have been served legal papers. These TROs are usually in effect for two to three weeks. However, a temporary restraining order may be upgraded to a permanent restraining order (PRO) valid for up to three years if the courts decide this is necessary. If a restraining order is violated, it is likely you will face up to a year in jail and up to $1,000 in fines.
Domestic violence restraining orders (DVROs) are the most common, and they are used in situations where one member of a household, usually a spouse, feels physically unsafe being near someone else. While they serve a valuable function in situations of true domestic abuse, they can easily be abused themselves. This has led to a great number of people facing restrictions regarding access to home and children unfairly. If you are in the position of having a TRO that restricts your access and movements, call a restraining order attorney at the Law Office of James Dunn for help. If you are accused of violating a restraining order, you need legal representation immediately, as you may be incarcerated.
Don’t Violate Your Restraining Order Under Any Circumstances!
If you have had a temporary restraining order filed against you, do not violate it under any circumstances, or you are at risk of being taken into custody at once. Keep the required physical distance away and refrain from any forbidden types of communication (e.g. email, phone calls, text messages, or others). You need to contact an experienced and thoroughly skilled California criminal defense attorney. It is necessary to prove to the court that the basis under which the TRO was issued was not accurate, and that you are not a danger to any person.
There are a number of situations where a California judge may issue a restraining or protective order against an individual. Such orders should identify the person under protection and the precise conduct that is prohibited. For instance, in cases involving domestic violence, the court may issue a restraining order to prohibit one partner in an “intimate” relationship from abusing the other person. But restraining orders can be issued in almost any scenario, such as to protect someone from an abusive co-worker or neighbor.
If a restraining order has been issued against you, it is critical that you obey all of its terms. Even if you feel the order is unfair or the judge was biased against you, there are appropriate legal channels available for challenging or lifting the order. We will help explain your options at your consultation.
But under no circumstances should you violate the restraining order. Taking the law into your own hands is never advisable. For one thing, you can face criminal charges if you violate a restraining order.
In San Jose and San Mateo, What CA Law Covers Restraining Orders? (California Penal Code 273.6)
Specifically, Section 273.6 of the California Penal Code declares that “[a]ny intentional or knowing violation of a protective order” is a criminal misdemeanor. The words “intentional or knowing” are critical. You cannot be convicted of violating a restraining order that you never knew about. Nor are your criminally responsible if the violation was accidental or inadvertent.
In terms of knowledge, you should be aware that there are different kinds of restraining orders. A judge may initially issue an “Emergency Protective Order” without a hearing. This order is good for up to 7 days. After that, a judge can issue a Temporary Restraining Order that lasts a couple of weeks. Only after the judge has the chance to conduct a full hearing–with you and your attorney present–can the court issue a Permanent Restraining Order, which can last for up to 3 years before it has to be renewed.
Restraining orders are not one-size-fits-all. Depending on the facts of the case, the judge may order you to simply avoid contacting the person who filed the complaint. In more serious situations involving domestic violence, a defendant can be ordered to leave his or her residence and maintain a certain distance (e.g., 1,000 feet) from the victim at all times.
This is where “intent” comes into play. If a judge orders you to stay 1,000 feet away from your ex-boyfriend, and you accidentally bump into him at the store, have you committed a crime? No, as long as it really was an accident.
Also keep in mind that when a restraining order bars “contact,” that usually includes all form of contact, including email or social media. In other words, do not write on your co-worker’s Facebook wall after they took out a restraining order against you for harassment. This would clearly demonstrate intent to violate the order, even if all you did was write “Happy Birthday.”
A Restraining Order Was filed Against Me. What If My Accuser Asks to See Me?
Once a restraining order is issued, it is up to the judge to modify or rescind it before the legal expiration date. Even if the person who took out the order later has a change of heart, he or she must go before the judge. If the accuser makes contact and asks to see you, consider this a legal trap. You can still be arrested and charged with violating the restraining order.
What Are the Penalties for Violating a Restraining Order in San Jose and the Bay Area?
In San Jose, under California law, a violation of Probate Code Section 273.6 is a misdemeanor. This means that if convicted, the judge can sentence you to up to one year in the county jail, fine you $1,000, or order both jail and the fine.
For minor infractions and first-time offenders, the judge is more likely to order probation than jail. Probation may still require you to pay a fine or restitution to the accuser. You may also be ordered to undergo mandatory counseling for anger management, substance abuse, or any other issue related to your case.
If the restraining order violation is not something as simple as just making prohibited contact–if it “results in physical injury,” then Section 273.6 requires the defendant serve at least 30 days in jail.
And while a court may be lenient for a first offense, if you already have a prior conviction for a violating a restraining order, a second charge can quickly escalate. Depending on the length of time between your first and second cases, the prosecutor will have the discretion to file the latter violation as a felony charge. This can result in a prison term of up to 3 years depending on the facts and circumstances.
How Restraining Orders Affect Your Gun Rights in California
If you are a resident of California and are under a restraining order, you cannot own a gun or any other firearms. This means that once the judge issues the order, you must lawfully dispose of any weapons you currently own, either by turning them over to your local police or sheriff’s department, or alternatively by selling them to a licensed gun dealer.
If you fail to get rid of your weapons, you can be charged with a violation of your restraining order. This carries the same misdemeanor penalties as any other violation. And if you purchase, receive, or even attempt to acquire another firearm when a restraining order is in effect, the prosecutor has the discretion to file a felony charge.
How Can a San Jose Restraining Order Attorney Help?
If you are accused of violating a restraining order, contact our office for a free consultation to discuss your options. Restraining orders can quickly get complicated. Even if you have every intent of following the order, you may get tripped up if you do not fully comprehend its terms.
We can also defend you if you are falsely or erroneously accused of violating a restraining order. We also know there are cases where a judge exceeded his or her authority in issuing the order in the first place. Whatever your situation, we can review your case and help you decide the most appropriate (and legal) response. Call us today to schedule a consultation with a restraining order attorney.