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Does violating a restraining order stay on your record in California?

Posted by Neil Shouse | Jul 22, 2019 | 0 Comments

restraining order document

Violating a restraining order (“RO”) does stay on a person's record in California.

Penal Code 273.6 PC is the California statute that makes it a crime for a person to violate the terms or conditions of a restraining order.

A violation of this statute can be charged as either a misdemeanor or a felony, depending on the facts of the case. A guilty conviction of either charge, though, goes directly on the defendant's record.

Note that a RO is a court order that is designed to protect a person from

  • harassment,
  • physical abuse,
  • stalking, or
  • threats

by the person named in the order.

Also note that a person may be able to expunge a conviction for violating a restraining order. Penal Code 1203.4 PC is California's law on “expungement” of criminal convictions. An expungement (also known as a "dismissal") releases an individual from the negative consequences of a conviction for most purposes.

One particular benefit is that an expunged conviction does not need to be disclosed to potential employers.

Does a restraining order violation stay on an accused's California record?

It is a crime in California for a person to violate a restraining order, per Penal Code 273.6. As a result, a violation stays on a defendant's criminal record.

What is a restraining order?

Generally speaking, a RO is a court order that is designed to protect a person from

  • harassment,
  • physical abuse,
  • stalking, or
  • threats

by the person named in the order. The exact order will dictate exactly what type of behavior is or is not prohibited but will likely include provisions that the restrained party refrain from any type of contact with the protected individual.

"Contact" generally includes:

  • personal contact (that is, coming within a certain distance of that person),
  • phone calls or text messages,
  • e-mails,
  • interaction on social networking sites such as Facebook, or
  • any type of surveillance.

Are there different types of restraining orders?

There are essentially four types of California restraining orders that the courts will issue. These are:

  1. domestic violence restraining orders (issued to protect individuals from abuse suffered at the hands of someone with whom that person shares an "intimate" relationship),
  2. civil harassment restraining orders (issued to protect from people who do not qualify as "intimate partners" such as neighbors, co-workers and other people with whom you are not close),
  3. elder or dependent adult abuse restraining orders (issued to protect elders with certain disabilities from physical, emotional and financial abuse and/or neglect), and
  4. workplace violence restraining orders (requested by an employer to protect an employee from violence or threatened violence in the workplace).

What happens if a person violates a restraining order in California?

If a person that is the "restrained" person named in a RO does not adhere to its terms and conditions, then prosecutors may charge him with violating a protective order under Penal Code 273.6 PC.

A prosecutor must prove three things in order to successfully convict someone of violating a RO. These are:

  1. the judge issued a legal protective order,
  2. the defendant knew about the order, and
  3. he intentionally violated that order.

A violation of PC 273.6 is typically charged as a misdemeanor. The offense is punishable by:

  • imprisonment in the county jail for up to one year, and/or
  • a maximum fine of $1,000.

In some cases, a violation of a restraining order can lead to felony charges. A felony charge is punishable by:

  • imprisonment in the state prison for up to three years, and/or
  • a maximum fine of $10,000.

What is expungement?

Penal Code 1203.4 PC is California's law on “expungement” of criminal convictions. An expungement (also known as a "dismissal") releases an individual from the negative consequences of a conviction for most purposes.

One particular benefit is that an expunged conviction does not need to be disclosed to potential employers.

As it is, California's ban the box law in Assembly Bill 1008, bars employers from asking about a job applicant's criminal record until there is a conditional offer of employment. But once a conviction has been expunged, it does not have to be disclosed to an employer even after the employer makes a conditional offer of employment.

Who is eligible to get a California expungement?

As a basic rule, Penal Code 1203.4 PC authorizes an expungement for a misdemeanor or felony offense provided the applicant:

  1. successfully completed probation (either felony probation or misdemeanor probation), and
  2. is not currently:
  • charged with a criminal offense,
  • on probation for a criminal offense, or
  • serving a sentence for a criminal offense.

The person applying for PC 1203.4 relief must have successfully completed probation in its entirety (or obtained an early termination of probation).

Who is not eligible to get an expungement?

There are certain criminal offenses in California that cannot be expunged. These include serious sex offenses committed against children, such as

  • Penal Code 286(c) PC, California's law against sodomy with a child,
  • Penal Code 288 PC, California's lewd acts with a child law,
  • Penal Code 288a (c) PC, California's law against oral copulation with a child, and
  • Penal Code 261.5(d) PC, California's statutory rape law (which prohibits sexual intercourse between persons who are 21 years and older and persons younger than 16).

About the Author

Neil Shouse

Southern California DUI Defense attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT).

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