Most restraining order violations charged in San Diego do not involve a threat or a break-in. They involve a returned text, a trip to the apartment to collect clothes after the protected person said it was fine, or a conversation in a courthouse hallway. Under Penal Code sections 273.6 and 166, each can be a new misdemeanor, filed on top of the domestic violence case that produced the order.
The order binds only you, and the protected person cannot lift it by invitation. That is the part of the law that catches people.
The Orders That Come With a San Diego Domestic Violence Case
Several orders can restrain you during and after a domestic violence case, and they come from different courts under different statutes.
- Emergency Protective Order (EPO): issued to the responding officer by an on-call judge under Family Code section 6250. It lasts up to seven days and usually bars you from the home.
- Criminal Protective Order (CPO): issued by the criminal court under Penal Code section 136.2, usually at arraignment. A full stay-away order forbids all contact; a peaceful-contact order allows contact that is not harassing, threatening or violent.
- Domestic Violence Restraining Order (DVRO): issued by the family court under Family Code section 6200 and following. A temporary order is followed by a hearing, and the final order can last up to five years and be renewed.
- Civil Harassment Restraining Order: issued under Code of Civil Procedure section 527.6 when the parties are not in a domestic relationship, for up to five years.
- Post-conviction protective order: after a conviction under Penal Code section 273.5, or as a condition of domestic violence probation under section 1203.097, the court can impose an order lasting up to ten years, or up to 15 years after a section 273.5 conviction.
Penal Code 273.6: Violating a Protective Order
Penal Code section 273.6(a) makes it a misdemeanor to intentionally and knowingly violate a protective, stay-away or restraining order: up to one year in county jail, a fine of up to $1,000, or both.
If the violation results in physical injury, section 273.6(b) raises the fine to $2,000 and imposes a 30-day minimum jail term, which the court may reduce to no less than 48 hours for reasons stated on the record. A second conviction within seven years involving an act of violence or a credible threat is a wobbler under section 273.6(d), punishable as a felony by 16 months, two or three years.
Penal Code 166: Contempt for Violating a Criminal Protective Order
A violation of a criminal protective order issued in the criminal case is charged under Penal Code section 166 rather than 273.6. Section 166(a)(4) is general contempt: willful disobedience of a lawful court order. Section 166(c)(1) covers violating a protective order in a domestic violence case, a misdemeanor carrying up to one year in county jail and a fine of up to $1,000. A second violation within seven years involving violence or a credible threat can be filed as a felony under section 166(c)(4).
What the Prosecution Must Prove
CALCRIM 2701 breaks the offense into elements, and each is a place where the case can fail.
- A court lawfully issued a written order covered by the statute.
- You knew about the order, through service or your presence in court when it was issued.
- You had the ability to follow it.
- You willfully violated it. An accidental encounter is not a willful violation.
The Protected Person Cannot Waive the Order
The protected person calls, texts or invites you home. You respond. Weeks later an argument turns that contact into a police report, and you are the one arrested. The protected person is not charged, because the order restrains only you. Consent is not a defense.
The standard order forbids contact directly or indirectly, in any way: a message passed through a friend, a like or comment on the protected person’s social media, a gift sent by delivery, or showing up at a child’s school when the order covers the children. Being in the same restaurant by chance is not a violation. Staying once you see the protected person there may be.
If the protected person is contacting you, do not answer. Save the screenshots and call logs; they show who initiated and support a motion to modify the order.
Firearms Under a Protective Order
Every one of these orders carries a firearm prohibition. Under Family Code section 6389, a person served with a domestic violence restraining order must relinquish firearms and ammunition within 24 hours and file the receipt with the court within 48 hours. Penal Code section 29825 makes it a separate crime to acquire or possess a firearm while a protective order is in effect.
What a Violation Does to the Underlying Case
A violation is rarely prosecuted in isolation. Its real weight is what it does to the case that produced the order.
- A new charge, often before the same judge.
- Bail can be revoked or increased.
- If you are on probation for a prior domestic violence conviction, the contact is a probation violation, proven at a lower standard.
- A peaceful-contact modification is usually the first thing lost.
- The prosecution may seek to introduce the violation under Evidence Code section 1109 as prior domestic violence at trial on the underlying charge.
- For non-citizens, 8 U.S.C. 1227(a)(2)(E)(ii) makes a court finding that you violated the protective portion of an order a ground for deportation, with no conviction required.
- In family court, a violation can trigger the presumption against custody in Family Code section 3044.
Defenses to a Restraining Order Violation Charge
The defenses track the elements. Most of these cases turn on phone and platform records, which Marc obtains early, before they are overwritten.
- No knowledge of the order: you were never personally served and were not in court when it issued.
- Invalid or expired order: the case was dismissed, the temporary order lapsed, or the terms had been modified and the police were working from an old version.
- Accidental contact: the same gym, the same store, the same courthouse on the same morning. What matters is what you did once you saw the protected person.
- Ambiguous terms: an order that permits contact about the children but does not say how.
- No ability to comply: you were in custody, or had no means to leave the residence.
- False report: the protected person reported a contact that did not happen, or reported contact they initiated as if you had.
- Insufficient proof of who sent it: a text from an unknown number, a message from a shared account, or a call from a shared phone.
Getting a Criminal Protective Order Modified in San Diego
A full stay-away order issued at arraignment can keep you out of your home for months. Only the judge can change it, on a motion to modify in the criminal department. The court will want the protected person’s position, usually through the District Attorney’s victim advocate, and will weigh the charges, any prior history, and whether you share a residence or children.
Marc regularly moves at arraignment to have full stay-away orders modified to peaceful contact, and files the motion later when the arraignment judge declines. A granted modification is entered into CLETS, the statewide law enforcement database. Until then, the old order is the one police will enforce.
If the order allows communication about the children only through a specific channel, such as a co-parenting app, use that channel and nothing else. A message about pickup time sent by ordinary text is still a violation.
Talk to Marc Kohnen About a Restraining Order Violation
Marc Kohnen, State Bar of California number 255303, has defended criminal cases in San Diego since 2008 from his office at 425 Tenth Avenue, downtown near the central courthouse. If you have been accused of violating a protective order, or the protected person has been contacting you, call (619) 398-2500. The phone is answered 24 hours a day. Bring the order, the proof of service and whatever messages exist.
Questions About Restraining Order Violations Charges
What if the protected person contacted me first?
It is still a violation if you responded. A protective order restrains one person only, and the protected person cannot waive it or give you permission to break it. The protected person will not be charged, and prosecutors file these cases even when the messages show the other side reached out first. Who initiated still matters: it supports a motion to modify the order and undercuts a report that describes you as the pursuer. Preserve the messages and do not reply.
Is violating a restraining order a felony?
Usually not. A first violation under Penal Code 273.6(a) or 166(c)(1) is a misdemeanor, punishable by up to one year in county jail and a fine. It becomes a wobbler when it is a second violation within seven years involving an act of violence or a credible threat. As a felony it carries 16 months, two or three years. A violation causing physical injury stays a misdemeanor but carries a minimum jail term, and a threat made during the contact can add a Penal Code 422 count.
Can a text message violate a restraining order?
Yes. The standard California order forbids contact directly or indirectly by any means, and the form names telephone, mail, e-mail, text message and other electronic means. A single text is enough. Under a full stay-away order it does not matter whether the message was apologetic or about logistics. What does matter is proof that you sent it. A message from a number or account others could access leaves room to challenge who made the contact.
Can I get a criminal protective order modified so I can go home?
Often, yes. A criminal protective order under Penal Code 136.2 can be modified by the judge handling your case, at arraignment or later by motion. The usual change is from a full stay-away order to a peaceful-contact order, which lets you live with and speak to the protected person as long as there is no harassing, threatening or violent conduct. The court will consider the protected person’s wishes, typically through the District Attorney’s victim advocate. Until the modified order is signed and entered into CLETS, the original order remains in effect.
What is the difference between a criminal protective order and a DVRO?
A criminal protective order, or CPO, is issued by the criminal court under Penal Code 136.2 in a case the District Attorney is prosecuting. It lasts while the case is pending and, after a conviction, for up to ten years, or 15 years after a PC 273.5 conviction. A domestic violence restraining order, or DVRO, is issued by the family court under the Family Code at the protected person’s request, with a temporary order followed by a hearing, and can last up to five years. Violating a DVRO is a crime under Penal Code 273.6, and violating a CPO is charged as contempt under Penal Code 166.
More on Domestic Violence
- Corporal Injury (PC 273.5). The felony-eligible charge. Any visible injury turns a domestic dispute into a wobbler with prison exposure.
- Domestic Battery (PC 243(e)(1)). No injury required. A misdemeanor that still carries a 52-week program and a lifetime federal firearm ban.
- Criminal Threats (PC 422). Words said in anger, charged as a strike. The felony that rides alongside many domestic violence filings.
Back to the Domestic Violence overview.
Legally reviewed by Marc S. Kohnen, Attorney at Law, State Bar of California #255303, defending San Diego since 2008.
Free, confidential case evaluation, available 24 hours at (619) 398-2500.