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What is the difference between a protective order and a restraining order?

Posted by Neil Shouse | Aug 09, 2019 | 0 Comments

restraining order in california

Under the law in most states, there is no difference between a protective order and a restraining order. The two terms are used interchangeably.

Both are described as a court order that is designed to protect a person from:

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

by another person – that is specifically named in the order.

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/protective order.

A violation of this statute can be charged as either a misdemeanor or a felony depending on the facts of the case.

Fortunately, a variety of legal defenses apply when a defendant is accused of violating a protective order. A skilled California defense lawyer can assert these on your behalf. Three common defenses include:

  1. lack of knowledge,
  2. lack of intent, and
  3. false allegations.

What is a restraining/protective order under California law?

Generally speaking, a restraining order is the same thing as a protective order under California law. Both are described as 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 protective 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 protective order in California?

If a person that is the "restrained" person named in a restraining order 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 restraining order. 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.

Are there legal defenses available if a person is accused of violating a protective order?

A person can raise a legal defense if he is charged with violating Penal Code 273.6. A good defense can work to get a charge reduced or even dropped altogether.

Three common legal defenses include:

  1. lack of knowledge – meaning that the defendant shows that he did not know about an order. If he can prove no knowledge of an order, then he cannot be convicted of intentionally violating it.
  2. lack of intent – meaning that the accused proves that, while he may have violated a restraining order in some way, he did not do so intentionally (e.g., he violated an order on accident).
  3. false allegations – unfortunately, people get falsely accused of a crime all the time. It is a valid defense then for an accused to prove that someone lied about him violating a protective order.

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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