Restraining orders are legal tools to protect individuals from harassment, abuse, and unwanted contact. Violating a restraining order is a serious criminal offense that may result in immediate arrest, hefty fines, and potential imprisonment. Such violations carry severe legal consequences in civil court, often leading to a permanent criminal record with lasting impacts on one’s future. This article explores the types of protective and restraining orders, the potential legal consequences of violations, and the lasting impact, with insights from Nicole Duncan, an experienced attorney specializing in family law and restraining order cases in California.
Understanding Restraining Orders and Their Purpose
Restraining orders are designed to prevent harm by legally prohibiting one person from contacting or approaching another. Violations of these orders are treated seriously by the legal system, as they often occur in situations involving harassment, domestic violence, or stalking. Knowing the terms and respecting a restraining order’s conditions is essential, as even a seemingly minor breach can result in substantial legal consequences.
Types of Restraining Orders and Their Legal Scope
Restraining orders, also known as protective orders, come in various forms to address different situations. Common types include:
- Civil Restraining Orders: Typically filed in situations such as domestic disputes, harassment, or stalking. These are preventive measures that do not involve a criminal case. Family law courts often handle cases involving protective orders, especially when there are shared minor children.
- Criminal Protective Orders: A criminal protective order is often issued during criminal proceedings, especially in cases involving domestic violence, to prevent further contact between the accused and the victim. These are often court ordered protective orders issued by a judge in domestic violence cases, with severe penalties for violations.
- Emergency, Temporary, and Permanent Orders: Emergency orders can be issued immediately, temporary orders last until a full hearing, and permanent orders can extend for several years, depending on the circumstances.
Each order specifies conditions that the restrained person must follow, such as:
- No Contact: Prohibiting all forms of communication with the protected person, including phone calls, texts, or social media messages.
- Proximity Restrictions: Forbidding the restrained person from coming near the protected person’s home, workplace, or other frequented locations.
- Behavioral Restrictions: Preventing any form of harassment, intimidation, or threats against the protected individual.
- Peaceful Contact Protective Orders: A less restrictive form of protective order that allows the defendant to maintain contact with the victim under specific conditions, such as living together or communicating via phone, as long as the interactions remain non-violent and respectful.
Violating these terms can have severe legal and personal consequences.
Consequences of Violating a Restraining Order
Criminal Charges
Violating a restraining order is generally treated as a criminal offense. Depending on the violation’s nature and local laws, it can be charged as either a misdemeanor or felony. Criminal protective orders play a significant role in domestic violence prosecution, with severe penalties for violations, such as:
- Misdemeanor Violations: May result in fines and up to one year in jail.
- Felony Violations: Can lead to several years in prison, especially if the violation involved physical harm, harassment, or additional criminal acts like stalking or assault.
Immediate Arrest
- In most jurisdictions, law enforcement officers are authorized to arrest individuals suspected of violating restraining orders without a warrant. If officers have reasonable grounds to believe a violation has occurred, they can detain the individual immediately, leading to further legal proceedings.
Fines and Penalties
- Penalties for restraining order violations often include significant fines. For instance, misdemeanor violations can lead to fines up to $1,000, while felonies involving physical harm or additional crimes can result in much higher fines.
Jail Time
- Sentences can range from several days in jail for minor violations to years of imprisonment for severe or repeat offenses. Some jurisdictions impose mandatory minimum sentences for certain types of violations, particularly for first-time offenders.
Permanent Criminal Record
- A conviction for violating a restraining order results in a permanent criminal record, which can create barriers in many areas of life, from employment and housing to travel opportunities.
Long-Term Implications of a Restraining Order Violation
Beyond immediate legal penalties, the long-term implications of violating a restraining order are often overlooked but can be just as impactful:
- Employment Challenges: Many employers conduct background checks, and a criminal record from a restraining order violation may reduce employment prospects, particularly in fields that require trustworthiness or security clearances.
- Housing Difficulties: Individuals with criminal records often face challenges securing rental properties or mortgages, making it harder to find stable housing.
- Social Stigma: A criminal record can affect relationships with family, friends, and communities, leading to isolation and strained support networks.
Social and Psychological Implications
The legal and social consequences of a restraining order violation can create significant emotional and psychological stress:
- Social Isolation: Many individuals with a criminal record experience a sense of alienation from their communities.
- Mental Health Strain: The stigma and stress of a criminal record can lead to mental health challenges, such as anxiety, depression, or low self-esteem. Seeking support from counselors or support groups can be helpful in managing these effects.
Legal Defense and Mitigating Factors
Facing charges for violating a restraining or protective order is a serious matter with significant legal ramifications, including penalties under Penal Code 273.6. However, there are potential defenses and mitigating factors:
- Common Defenses: Defenses might include a lack of intent, misunderstanding the order’s terms, or mistaken identity.
- Mitigating Factors: Courts may consider factors such as a person’s cooperation, willingness to attend counseling, or an apology to the protected individual, which could reduce sentencing severity.
- Legal Representation: Having a skilled attorney like Nicole Duncan can be invaluable in navigating these complexities, building a defense, and mitigating potential penalties.
Steps to Take if You Are Facing a Restraining Order Violation
If you believe you may have unintentionally violated a restraining order, taking prompt action can be crucial:
- Immediate Actions: Contact a lawyer as soon as possible to assess your case and understand your rights. Violating protective and restraining orders can lead to serious repercussions, including legal penalties under California Penal Code 273.6.
- Gathering Evidence: Collect any evidence that might demonstrate compliance or lack of intent, such as messages, call logs, or witness statements.
- Engaging in Counseling or Support Programs: Showing an active effort to improve behavior, such as attending anger management or support groups, can be viewed favorably by the court.
What to Do If the Abuser Violates a Domestic Violence Restraining Order
Violating a Domestic Violence Restraining Order (DVRO) is illegal and can result in serious consequences for the abuser.
There are two main avenues to seek help if a DVRO violation occurs:
Contacting Law Enforcement
If the defendant violates the DVRO, call 911 immediately. In some cases, law enforcement officers can make an immediate arrest if they believe a violation has occurred. When speaking to the officers:
- Inform them that you have a DVRO and that the defendant is in violation.
- Always carry a certified copy of your Restraining Order After Hearing (CLETS) and the Proof of Service form, which shows the abuser was properly served.
You may be required to appear in court as a witness, so it’s helpful to document each violation in detail to support your case.
Filing for Civil Contempt in Court
If the abuser violates any part of the DVRO, you can file for civil contempt, which penalizes the abuser for disregarding family law court orders. Here’s how it works:
- Go to the clerk’s office and file for civil contempt, stating which specific terms of the DVRO were violated.
- If found in contempt, the abuser could face fines up to $1,000 or imprisonment for up to five days. Multiple violations can lead to increased jail time or alternative penalties, such as probation or conditional sentences of up to one year for a first offense, two years for a second, and up to three years for further violations.
For non-compliance with other parts of the order, such as child support, you may consult the family law facilitator, district attorney’s family support office, or a private attorney to explore additional enforcement options.
Conclusion
Violating a restraining order is a serious offense with lasting legal, social, and psychological consequences. Nicole Duncan’s extensive experience in restraining order cases highlights the importance of adhering to the terms of any protective order. For those navigating the complexities of restraining orders or facing possible violations, consulting an experienced attorney like Nicole Duncan can provide essential guidance to effectively manage the case and reduce potential penalties. Understanding and respecting the conditions of a restraining order is essential to avoid serious repercussions and to protect both parties’ rights and well-being.
FAQ on Violating a Restraining or Protective Order
What is a restraining or protective order?
A restraining or protective order is a court-ordered protective order that legally requires the restrained person to stay a certain distance from the protected person or avoid contact. These orders are often issued in domestic violence cases or situations involving credible threats or harassment.
What are the different types of protective orders in domestic violence cases?
Protective orders vary in restrictiveness. The most restrictive form is a full stay-away order, prohibiting any contact and requiring the restrained person to stay a certain distance from the protected person. Less restrictive protective orders, like a peaceful contact order, may allow limited, non-violent interaction, often when the couple shares minor children.
What happens if the defendant violated a protective order?
If the defendant violated a protective order, they may face criminal charges. Violating a protective order is considered an intentional and knowing violation, which could lead to immediate arrest, county jail time, or other legal repercussions based on the California Penal Code.
What are the penalties for violating a protective order?
Penalties for restraining order violations depend on the severity and nature of the offense. Violations can lead to criminal conviction, fines, county jail time, or a probation sentence. In serious cases, the defendant’s sentence may extend up to three years in state prison.
Can someone be charged for violating a protective order without physical contact?
Yes. An intentional and knowing violation of a court-ordered protective order can involve non-physical actions, such as sending a text message or using other electronic devices to contact the protected party. Even if contact remains peaceful, it may still constitute a violation.
What is considered evidence in a criminal court for restraining order violations?
In criminal cases, evidence includes any documentation or witness testimony showing that the restrained personwillfully violated the protective order. Text messages, emails, phone records, or proof of the restrained person’s presence at the same location as the protected person can be presented as evidence in criminal court.
What are the consequences for a defendant with prior convictions who violates a protective order?
A defendant with prior convictions who intentionally violates a restraining order may face harsher penalties, especially in domestic violence cases or if the violation involved criminal threats or sexual assault. This can result in longer jail time, stricter probation terms, or even imprisonment for up to three years.
Can a defendant be falsely accused of violating a protective order?
Yes, false allegations can occur. In cases where the defendant is falsely accused, they can argue that they were not aware of the order or that it was a knowing violation with other motives from the alleged victim. Presenting credible evidenceto support this reasonable argument is essential in such criminal cases.
How can a couple with minor children navigate a protective order?
When a couple shares minor children, a less restrictive protective order may allow peaceful contact for co-parenting purposes. However, in cases where violence is involved, a judge may issue a full stay-away order to protect the children and the protected person from potential harm.
Can a restraining order restrict the use of electronic devices?
Yes, protective orders can limit contact via electronic devices. Any communication through text message, social media, or other devices may be restricted or prohibited if it involves the protected party and could lead to a probation violationif the defendant’s sentence includes conditions against contact.
What should a person do if they believe the restraining order is unfair?
If the restrained person believes the restraining order is based on a false allegation or has other motives, they may challenge it by presenting evidence in court. A judge will consider both sides, and the restrained person can seek legal representation to argue for modification or dismissal.
What is the role of a judge in issuing a protective order?
In domestic violence cases or situations involving credible threats, a judge issues the court-ordered protective orderbased on the California Penal Code. The judge assesses the level of threat, the needs of the protected person, and the history between both parties before determining the restrictive form of the order.
Can a restraining order be violated if the protected person initiates contact?
If the protected party initiates contact, it can complicate matters, but it does not necessarily void the restrained person’sobligation to follow the court-ordered protective order. Violations are still possible if the restrained person responds, so consulting a legal professional is advised in these scenarios.
