I've previously written extensively on this blog about restraining orders in California -- how to get them, how to fight them, how to prepare for your day in court, and how to effectively present your case to the judge. Those posts are available here, here, and here.
Today, I want to discuss the laws that apply when a person is accused of violating an existing restraining order. In California, those laws are codified in section 166(a)(4) of the Penal Code, commonly referred to "Contempt of Court", and in PC 273.6. Violating an existing restraining order is a misdemeanor. Depending on the circumstances and your criminal record, it may be punishable by up to 1 year in jail and a $5,000 fine.
In order to be found guilty of contempt under PC 166(a)(4), the prosecutor must prove 4 things beyond a reasonable doubt:
1) That a court had lawfully ordered you to do a specific thing (or to refrain from doing a specific thing),
2) That you knew about the order and its contents,
3) That you had the ability to follow the order, and
4) That you violated the order.
You can be charged with violating a restraining order even if you're not the person named in the restraining order. A non-party (someone who was not involved in either side of the restraining order petition) is guilty of contempt if he knows about the order and he helps the restrained person violate it. For example, if your friend has a restraining order against him and he asks you to pass a message to the protected party, you can be charged with contempt if you do so.
There are several possible defenses if you're accused of violating a restraining order:
You didn't do it
As mentioned above, the prosecutor bears the burden of proving you guilty beyond a reasonable doubt. If they cannot prove that you committed the act in question, then you are not guilty. Just because a message was sent from your phone or your computer, the DA might have difficulty proving that you actually sent the message.
You might also admit that you engaged in some particular conduct, but argue that this conduct did not technically violate the restraining order. For example: You were ordered to stay away from your ex-girlfriend's place of work. You were seen in the area, but she doesn't work there any more.You might have a solid argument here that your conduct did not actually violate the judge's order.
The order itself was unlawful or unconstitutional
You cannot be convicted of violating an unlawful restraining order. This is a difficult argument to make, though. If you disagree with a restraining order or you feel like you did not receive an adequate opportunity to present your case when the order was initially granted, you must appeal the order within a very short time period. If you fail to properly file the appeal within that time period, you will be barred from doing so in the future.
You did not know about the restraining order or its contents
The prosecutor only needs to prove that you had an opportunity to learn about the contents of the restraining order. They do not need to prove that you actually read it, or even that you were properly served with a copy of the order after it was granted.
Usually, the DA will satisfy this element by simply proving that you were served with the order. If you were served, then you are presumed to have knowledge of the order and its contents. Willfully refusing to read the order is no defense.
Even if you were never served, the DA may be still able to prove that you had knowledge of the order and intentionally avoided service. Again, this is no defense.
You were unable to comply with the order
To be convicted of contempt, the DA must prove that you acted "willfully" or "intentionally", depending on the circumstances. If the court ordered you to do something specific and you are physically unable to do that thing, then you have not violated the court's order. For example: The judge granted a restraining order against you and he ordered you to surrender your firearms at the local police station. You have been in jail or in the hospital ever since the incident and you have not yet had an opportunity to comply with the order. In this case, you are not guilty of contempt because you have not "willfully" or "intentionally" violated the judge's instructions.
If you or a loved one is accused of violating a restraining order in California, call our office for a free consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Orange County Restraining Order Lawyer
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