A restraining order is tailored to protect victims of harassment, stalking, abuse, and violence. When you have a protective order against you, you should comply with its restrictions. Otherwise, you risk life-altering penalties, including serving time, probation, and paying fines, among other collateral consequences. Since a lot is at stake, you should take the matter seriously and consult an experienced lawyer.
Defining Violation of a Restraining Order
To understand the penalties of a protective order, you should first understand how PC 273.6 defines the crime and the facts of the crime.
For a defendant to be found guilty of violating a restraining order, the prosecution team should demonstrate beyond any reasonable doubt that:
- A judge issued a valid order against the accused
- It was a restraining order
- The defendant knew of the order
- The accused had the capacity to obey the protective order
- The defendant deliberately breached the order
If you commit another offense while breaching your restraining order, the court could convict you of both PC 273.6 and the laws governing the other offense.
Please note that the protected party in the protective order cannot get into legal trouble for contacting you, the restrained party. If the protected party contacts you, you can use it as evidence in court to argue that the protected party does not fear the defendant and that the protective order is not necessary.
Legal Defenses to Fight Violation of a Restraining Order Criminal Charges Against You
Here are potential practica defense strategies to beat PC 273.6 penalties:
The Order was Invalid
Even if a judge grants a restraining order, it should not be issued unlawfully or in breach of the appropriate processes.
Once your attorney proves to the prosecution team that the order is invalid, it may dismiss your charges.
You Did Not Deliberately Breach the Order
You can use this defense if you accidentally bump into the protected person on your way to or from work, while out shopping, or attending an event.
Even if the victim panics and asserts that you breached the restraining order, the prosecution team may dismiss your charge if they ascertain that it was not a deliberate encounter.
You Had No Knowledge Of the Order
If the protected party did not serve you with the restraining order, you are not obliged to obey it. Your attorney can argue that the server served the wrong individual or forgot to serve the order.
Legal Penalties
Violation of a restraining order is a misdemeanor, punishable by:
- A one-year jail sentence
- A fine not exceeding $1,000
Violation of a restraining order becomes a wobbler if:
- You have a prior conviction for breaching a similar order
- Your violation involves violence
A wobbler is any offense that the prosecution team can charge as a felony or misdemeanor based on case facts and criminal history.
A felony conviction attracts the following punishment:
- Sixteen (16) months, two (2)years, or three (3) years in county jail
- A $10,000 fine
Immigration Penalties
Violating your protective order will not affect your immigration status. Nonetheless, you could be deported as a non-immigrant with a domestic violence conviction on top of violating PC 273.6.
Being deported means you become inadmissible to the United States and cannot return, regardless of how long you have lived in America.
Loss of Gun Rights
According to Section 29800, it is unlawful for anyone convicted of a felony to own, buy, or possess.
However, a misdemeanor conviction will not impact your gun entitlements.
If you have a felony conviction, you can reinstate your gun rights by reducing the felony wobbler conviction to a misdemeanor. To reduce the felony conviction to a misdemeanor, you must have been granted probation for the felony conviction. You are ineligible for a reduction if the court did not grant you probation and you served time in state prison.
Here is when you can petition the court to reduce your felony to a misdemeanor:
- At the conclusion of the preliminary hearing
- During your sentencing
- After completing probation
If you are still on parole or probation, your lawyer can file a petition with the court to reduce your felony to a misdemeanor once you complete probation. They may also enable you to secure early probation termination to accelerate this procedure:
If you have completed probation, the attorney could request the judge to lower the felony to a misdemeanor at any time.
The different factors the court considers when determining whether to grant you a felony reduction include the following:
- The seriousness of your crime
- The case facts
- Your adherence to your probation terms
- Your criminal record
- Your personal history
Sometimes, the prosecution team can object to the reduction of your felony conviction. A position that the judge might or might not consider.
Background Check and How a Conviction Affects Your Future Employment Opportunities
A background check refers to when an employer or company obtains information relating to your criminal history.
A company or employer can conduct a criminal background check on its own or enlist the services of a third party (investigative reporting agencies).
Please note that it is a crime for potential employers to access criminal history details on:
- Arrests that did not result in a conviction
- A conviction that happened more than seven years ago from the date of performing the background check
- A sealed and expunged conviction
- A conviction for which you were pardoned
Conducting a background check is legal in the Golden State. Nevertheless, the law imposes different obligations and restrictions on firms when hiring.
Here are the examples of these restrictions:
Ban-the-Box Law
Under this law, employers with more than five employees may ask about your criminal record after making you a conditional employment offer.
If the potential employer finds that you have a criminal conviction, they cannot disqualify you based on that. Instead, the employer should conduct an individualized evaluation and consider the following:
- Whether the conviction can affect your specific work responsibilities
- The severity and nature of the crime
- How much time has elapsed since your conviction or completing your sentence
- The type of work held or being sought
The potential employer may deny you employment after making this review due to business necessity. When the company denies you the job, it must inform you in writing of its preliminary decision.
You should respond within five working days to their notice with proof of mitigating factors and your rehabilitation efforts. The evidence can include the completion of a drug diversion program and community service.
Upon submitting your response to the potential employer, they must assess it. After consideration, they can do any of the following:
- Employ you, or
- Deny you a job due to the criminal record details
The Fair Chance Ordinances
Before the ban-the-box law, San Francisco and Los Angeles had enacted the fair chance ordinances. The law permits a job applicant with a criminal record to provide potential employers with favorable proof if they decide not to employ them.
San Francisco and Los Angeles have since amended the ordinances to align with the ban-the-box law, which provides better protection.
The Fair Credit Reporting Act
The FCRA requires employers to:
- Obtain your consent before performing your background check
- Provide you with a notice if they deny you employment due to information found in your background check
These rules apply to companies that use third parties to run background checks. FCRA does not apply to employers that conduct checks in-house.
The California Information Privacy Act
This law contains regulations similar to those in the FCRA. For instance, CIPA states that employers should obtain consent before doing a background check.
Employers conducting an in-house check should:
- Offer you an option to see a report of the background check
- Give you a copy of the report if you decide to exercise the option
Anti-Discrimination Regulations
State and federal regulations prohibit employers in California from discriminating against a job applicant based on:
- Ethnicity
- Race
- Sexual orientation
Therefore, employers cannot deny you employment because of your criminal record.
Impact on Your Professional License and Ability to Practice Your Career
The mandate of most licensing boards is to protect the public, and they often act swiftly whenever a licensed professional is charged with or found guilty of a crime that significantly relates to their professional duties and responsibilities.
The conviction can trigger investigations with the board and ultimately disciplinary actions such as citations, reprimand, probation, license revocation, and license suspension.
It is a collateral consequence. You might have resolved your criminal case with the court, but that does not mean you have any issues with your licensing board.
Failing to divulge details about your conviction when applying for a professional license can lead to rejection of your application or suspension or revocation of your existing license. Perjury is a crime.
You should be truthful and honest when disclosing your conviction. Ensure you provide the exact details of the conviction and what happened. Showing your rehabilitation attempts, such as attending counseling, can show your efforts towards upholding ethical standards.
Please note that taking any plea can affect your professional license. Therefore, it is advisable to discuss the implications with your attorney before taking the plea.
Expunging Your Conviction and Erasing Almost All Your Penalties
Expungement permits you to withdraw your guilty plea or no contest and get your criminal case dismissed. It provides a fresh start from your criminal past.
Here are the pros of having your conviction expunged:
- Your potential employer cannot discriminate against you when applying for a job due to your expunged conviction.
- An expungement makes it easier to acquire a professional license
- An expunged conviction cannot be utilized to impeach your credibility when testifying in court, unless you are the accused person facing prosecution in another case
- Under certain circumstances, an expungement can enable you to avoid immigration consequences, including deportation.
PC 1203.4 permits felony and misdemeanor expungement if any of the following apply to you:
- You completed your felony or misdemeanor probation
- You are not under prosecution for another offense, on probation, or incarcerated in jail or prison
If you served time in state prison upon your conviction or due to a probation violation, you are not eligible to file an expungement petition.
You should have fulfilled all probationary conditions before applying for an expungement. However, the court has wide discretion in deciding whether to grant your expungement petition.
During the expungement hearing, the judge considers factors that include:
- Your performance during probation
- Your criminal record
- Any other evidence that proves you deserve this relief, including the possibility of securing a lucrative employment opportunity, your family’s support, and robust community ties
- The nature of your underlying conviction
If you served time in prison, you could still expunge your conviction as though you were sentenced to jail if your conviction happened after the Proposition 47 Realignment law. Under this law, judges can expunge your criminal record if:
- They deem it would serve the interests of justice
- Your offense is presently punishable by jail
- At least two (2) years since you finished your sentence
Also, you should not be:
- Under supervised release
- Serving another sentence
- On parole or probation
- Charged for another offense
From July 2024 on, most criminal cases can be automatically sealed upon dismissal or if you complete probation, eliminating the need to bring your expungement petition.
Here is what the procedure involves:
Hire an Experienced, Qualified Attorney.
The expungement process can be time-consuming and confusing due to its extensive paperwork.
Nevertheless, a knowledgeable attorney can streamline the procedure and do it right the first time.
Completing Proper Forms
Your lawyer understands the right forms for every situation.
For instance, if you successfully finished misdemeanor parole, you should file a petition for the dismissal of your misdemeanor. If you are still on probation, you should file a petition to terminate it early. Then, if the court denies it, you can file for a dismissal.
Please note that California felonies can only be expunged after a reduction to misdemeanors.
File Your Expungement Request
Upon completing the required forms, you should submit them to the court where the conviction was rendered. The court can respond within five months.
Each court has its guidelines and fees. In some situations, the expungement forms should be delivered physically or by mail.
Ensure you timely file your paperwork. For instance, provide the prosecution team with a minimum of 15 days' notice before the hearing. The time allows the prosecution team to assess your case and to object.
Preparing for your Expungement Hearing
Whether you make a court appearance during the expungement hearing depends on your case. After looking at the case factors, the judge can decide whether to expunge your criminal record. Factors that the court looks at include the following:
- Whether you can keep a job
- Do you have additional convictions
- Have you finished the mandatory community service
If the court declines your expungement, you can try again after six months. When refilling, ensure you include all necessary changes.
After the court grants your expungement petition, you can legally answer no when asked about your criminal record. However, your expunged conviction is accessible for state professional license, sensitive positions, law enforcement, and immigration purposes.
How a Lawyer Can Help You Avoid or Reduce the Severity of Penalties Stemming from Your Criminal Charges
The benefits of hiring an attorney include the following:
Understanding of the Justice System
Lawyers are professionally educated and trained to navigate the legal system effectively. Therefore, your attorney knows how to handle each aspect of the justice system and court processes. They can leverage their expertise and knowledge to craft a formidable defense to help you achieve the best possible outcome.
Reviewing Your Case
Your criminal defense attorney can individually evaluate your case and the charges you are facing. Your lawyer will properly educate you so that you can better understand the charges, why you are being prosecuted for that particular offense and how to fight the charges.
Safeguarding Your Constitutional Rights
Your attorney has an in-depth knowledge of Constitution Law and will go the extra mile to ensure your legal rights are protected throughout the judicial process. Additionally, enlisting a lawyer can protect you against heavy legal penalties, lessen or even negotiate to have your charges dismissed.
Professional Connections
A criminal defense attorney has relationships and previous standings with court staff in the district or city where they practice law. Your lawyer’s good standing with the court can portray you in a positive light and could lead to a favorable ruling for you.
Find an Aggressive Attorney Near Me
PC 273.6 makes it an offense to violate the conditions of your court-ordered restraining order. The crime is a wobbler depending on the case circumstances and your criminal history. Regardless of whether charged with a misdemeanor or a felony, a conviction can have severe criminal and collateral penalties. Goldman Flores Restraining Order Law Firm can help you whether you want to fight the allegations against you or want to report a violation. We can guide you through the process and answer your questions to ensure your interests and rights are protected. Please contact our Los Angeles office at 213-341-4087 to schedule your initial consultation.
