Penal Code 166(c)(1) - Violation of Criminal Protective Order (Restraining Order)
Restraining orders are par for the course in most cases alleging abuse. They're most common in domestic violence (DV) cases. When the judge orders you stay away or not harass an alleged victim during a criminal case (i.e., in criminal court), that order is called a criminal protective order (CPO). If you violate it the order -- even with a minor violation -- the DA can file a new misdemeanor for violating the order, which comes with steep consequences.
ELEMENTS OF THE OFFENSE
To prove you are guilty of PC 166(c)(1), Violation of a Criminal Protective Order, the DA must prove each of the following elements beyond a reasonable doubt:
A court lawfully issued a written order that you stay away and/or not harass an alleged victim;
The court order was issued in a pending criminal proceeding involving domestic violence or as a condition of probation after a conviction for domestic violence (or a different type of abuse, such as elder abuse);
You knew of the court order;
You had the ability to follow the court order; AND
You willfully violated the court order.
UNDERSTANDING THE ELEMENTS
What does “willfully” mean?
Someone commits an act willfully when he or she does it willingly or on purpose. It doesn’t matter whether or not you intended to break the law.
What if you didn't really review the order carefully?
The DA must prove you knew of the court order and had the opportunity to read the order or otherwise become familiar with what it said. But the DA doesn't have to prove that you actually read the court order.
What does domestic violence mean?
Domestic violence means abuse committed against (an adult/a fully emancipated minor) who is a (spouse[,]/ [or] former spouse[,]/ [or] cohabitant[,]/ [or] former cohabitant[,]/ [or] person with whom the defendant has had a child[,]/ [or] person who dated or is dating the defendant[,]/ [or] person who was or is engaged to the defendant).
Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else.]
The term cohabitants means two unrelated persons living together for a substantial period of time, resulting in some permanency of the relationship. Factors that may determine whether people are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same residence, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) the parties’ holding themselves out as (husband and wife/domestic partners), (5) the continuity of the relationship, and (6) the length of the relationship.