Defenses for Violating a Restraining Order in California

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 What Is a Restraining Order?

A restraining order may also be known as a protective order. Such orders are issued by a court and are meant to protect people, businesses, or the general public from harm. This is generally done in cases involving allegations of domestic violence, stalking, harassment, assault, and/or sexual assault.

Restraining orders provide the court with the power to order a person to stay a specified distance away from another person. This could also include a home, group of people, or business. A restraining order may also include a provision instructing that there is to be no contact. What this means is that the person being restrained is to refrain from making any contact by phone, email, letter, delivery, etc.

There are many different types of restraining orders that may be issued depending on each specific circumstance. In general, a restraining order falls under one of three main types:

  • Temporary Restraining Order (“TRO”): A temporary restraining order is in effect until the court holds a hearing in order to review the circumstances which lead to the order being issued. TROs generally have a set expiration date; alternatively, they will last until the court hearing. At such a hearing, the court determines if there is a need for a long term restraining order;
  • Emergency Protective Order (“EPO”): An emergency protective order is issued by the police when they have responded to the scene of a domestic violence case. These are effective immediately and generally do not last longer than one week. During that time, a person may file for a long-term order; and
  • Permanent Restraining Order (“PRO”): There are several types of restraining orders that fall under the permanent restraining order umbrella. They are put into effect once a court case is finalized, and will last for several years, if not forever.

Is Violating a Restraining Order a Crime in California? Can I Be Automatically Found Guilty of Violating a California Restraining Order?

California defines violating a restraining order, or protective order, as “failing to comply with the conditions and terms as outlined in the restraining order.” When the order is violated, the police will be called and come to the scene. Once there, they will ask to see the restraining order; as such, if you have filed a restraining order or have had one filed against you, you should keep a copy of the order with you at all times.

As it is a crime to disobey any court order, the police may arrest the abuser for violating the restraining order. There will be a court hearing in order to determine whether the order was violated; if so, they will also determine and impose civil and/or criminal penalties.

In order to be found guilty, the State must prove that the defendant violated the order. This means you cannot be automatically found guilty of violating a California restraining order. Fighting a California restraining order would generally consist of contesting at the hearing. It could also consist of providing evidence and witness statements.

What Is the Criminal Punishment for Violating a Restraining Order in California?

Violating a restraining order will result in being held in contempt of court for violating that order. Contempt of court is generally punished by monetary fines and/or imprisonment. Additionally, violation of a restraining order carries civil penalties which includes monetary fines. Violation of an order also may prompt a court to issue a mandatory injunction, which is a court order requiring a person to take a specific action.

An example of this would be if a person has obtained a restraining order against a factory. This order prohibits the factory from engaging in pollution; a court may take action, requiring the factory to remedy the pollution in some way. In the context of this scenario, ordering that the factory properly dispose of waste would be an example of such a remedy.

A person who violates a restraining order could be sued by a victim in civil court. The court would most likely require the violator to pay monetary damages, specifically for emotional pain and suffering. If the violator caused physical harm, the court may order them to pay for doctor bills, pharmacy bills, and other expenses resulting from that harm. If the violation involves physical abuse, a court may order revocation of the violator’s child custody and visitation rights. This is more likely to occur if the physical abuse is done while in the presence of the violator’s child.

Violating a restraining order could also result in criminal penalties. The length of a prison sentence and/or monetary fine will depend upon the severity of the violation. An example of this would be a person who intentionally violates a restraining order by approaching the protected individual with a gun. They would likely be charged with a felony. If the violation is a second, third, or other additional offense, it may be punishable as a felony where it would otherwise be punishable as a misdemeanor.

In California specifically, a misdemeanor restraining order violation is punished a follows:

  • Up to one year spent in jail;
  • Monetary fine of up to $1,000;
  • Potential restitution payout to the victim;
  • Potentially mandatory counseling; and/or
  • Relinquishing any personal firearms.

A violation in California could also be ruled as a felony. In such cases, the defendant could face one of the following two sentencing scenarios:

  • Probation and up to one year spent in a county jail; or
  • A minimum of sixteen months or a maximum of three years in prison, as well as a fine of up to $10,000.

Are There Any Defenses I Can Use to Fight The Charge of Violating My Restraining Order in California?

Specific restraining order defense(s) will depend on the circumstances surrounding the violation. Generally speaking, some common defenses include the following examples:

  • The alleged victim made a false claim that the defendant violated the restraining order. For example, the victim may claim that the defendant was within the restricted range, when the defendant was actually not at that location;
  • The alleged victim makes attempts to have the defendant violate the restraining order to punish the defendant. In some cases the alleged victim may have a restraining order against the defendant, such as a restraining order requiring the defendant not come within 1,000 feet of the victim, and then purposefully go to a location where the defendant is located. In such cases, the defendant may fight the charge of violating the restraining order, as the victim was using the restraining order as a sword, rather than a shield;
  • The defendant did not know about the protective order, and therefore could not know that they were violating said order;
  • The order is impossible for the defendant to obey due to vague language or some other such example. Typically this defense will not be available, as the Court will not approve the use of vague language;
  • The defendant accidentally violated the conditions and terms of the order; or
  • The order was illegally or improperly issued.

Should I Contact a Lawyer about My Charge?

If you are being charged with violating a restraining order, and you live in California, you should immediately consult with a skilled and knowledgeable California criminal lawyer.

An experienced local criminal law attorney will be knowledgeable of any unique local laws that would apply to your case, as well as what potential penalties you could face. They will also be aware of any potential defenses available to you based on the specifics of your case. Additionally, an attorney will represent you in court as needed.


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