Comprehensive Guide to Illinois Violation of an Order of Protection – 720 ILCS 5/12-3.4

In Illinois, a Violation of an Order of Protection is often charged against intimate partners (i.e. boyfriend-girlfriend, husband-wife, or people who have a child in common). Behavior which would otherwise be lawful, like making a phone call or visiting one’s children, is now criminal because a person obtained an order of protection. Being charged with a violation of an order of protection can have huge consequences on your parenting rights and your freedom. Here is a comprehensive guide about Illinois’ Violation of an Order of Protection Statute (720 ILCS 5/12-3.4):

What Is a Violation of an Order of Protection?

There are 2 ways to commit a violation of an order of protection in Illinois:
1) You do something that an order of protection strictly prohibited (i.e. the order says stay away and you come to the victim’s residence); and/or
2) You fail to do something that an order of protection required (i.e. the order says turn over your guns to law enforcement and you keep your guns).

The actual language of the statute is at 720 ILCS 5/12-3.4(a)(1)(i). It states that “a person commits violation of an order of protection if he or she knowingly commits an act which” the court prohibited or “fails to commit an act which” the court ordered “in violation of a remedy in a valid order of protection.”

If my girlfriend/wife does not want to proceed with the case, then the State will have to dismiss the case, right?

Wrong! Criminal cases are not civil lawsuits. In civil cases, the person suing you can always dismiss the case against you. However, in criminal cases, it is “The People of the State of Illinois” v “Defendant” and not “Victim” v “Defendant.” The representative of “the People” is the prosecutor not the victim. Therefore, the State can still go forward with charges even if the victim does not want to proceed.

Additionally, if the sheriff serves the victim, and the victim fails to appear or refuses to testify, the State can obtain an arrest warrant for the victim and file a Criminal Contempt case against the victim. How bad can it get if the jury finds a witness guilty of criminal contempt? There’s one case out of Kankakee where a judge sentenced a witness to 20 years in the Illinois Department of Corrections for refusing to testify (later reduced on appeal to 10 years IDOC). See People v. Geiger, 2012 IL 113181.

Can the State charge me if the police have not served me with the order of protection?

No. Illinois law specifically states that “Such violation occurs after the offender has been served notice of the contents of the order” 720 ILCS 5/12-3.4(a)(2).

Can the State charge me when the victim invited me or consented to me coming over?

Yes! This was the central issue in a recent Supreme Court case, People v. Witherspoon, 2019 IL 123092. Initially, the Appellate Court had found for the defendant, claiming that the victim’s consent to defendant’s entry trumped any court order. However, the Supreme Court expressly overturned and rejected that reasoning. “When a defendant’s prosecution … is premised on the violation of a court order, the consent of the [victim] is legally irrelevant. The [victim’s]consent to a defendant’s entry does not, in some sense, trump the court order.”

Can the State charge me with violating an order of protection when I never even contacted the victim?

Unfortunately, Yes! If you direct someone else to contact the victim, then a jury could find you guilty. Stated differently, the law can hold you accountable for the actions of other people. Additionally, there is no requirement that those other people know that they are helping you commit the crime. 720 ILCS 5/12-3.4(f).

Under accountability, “a person is legally responsible for the conduct of another person when, either before or during the commission of an offense, and with the intent to promote or facilitate the commission of an offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in the planning or commission of an offense.” 720 ILCS 5/5-2(c).

Is there a difference if the judge in a civil case (i.e. divorce) or in a criminal case (i.e. domestic battery) issued the order of protection?

No. It does not matter if the order of protection was issued in a civil or criminal case. A violation of that order will have criminal consequences. 720 ILCS 5/12-3.4(a)(2).

Is this crime a misdemeanor or a felony?

Generally, a Violation of an Order of Protection is a class A Misdemeanor. 720 ILCS 5/12-3.4(d). Misdemeanors are crimes that are punishable by less than 1 year of imprisonment. However, a violation of an order of protection is a class 4 felony if you have a prior conviction for Domestic Battery, Aggravated Domestic Battery, or any of the crimes in the following list if the crime was committed against a family or household member:

• Violation of an Order of Protection,
• Murder, Attempt Murder,
• Aggravated Battery,
• Stalking, Aggravated Stalking,
• Criminal Sexual Assault,
• Aggravated Criminal Sexual Assault,
• Predatory Criminal Sexual Assault,
• Kidnapping, Aggravated Kidnapping,
• Aggravated Criminal Sexual Abuse,
• Unlawful Restraint, Aggravated Unlawful Restraint,
• Aggravated Arson, or
• Aggravated Discharge of a Firearm.

Who Is Included In “Family or Household Member”?

“Family or household members include spouses, former spouses, parents, children, stepchildren, and other persons related by blood or by present or prior marriage, persons who share or formerly shared a common dwelling, persons who have or allegedly have a child in common, persons who share or allegedly share a blood relationship through a child, persons who have or have had a dating or engagement relationship, persons with disabilities and their personal assistants, and caregivers.” 720 ILCS 5/12-0.1.

Do I need a lawyer if I am charged with Violating an Order of Protection?

Yes, because you should be represented by an attorney on any offense that can result in the loss of your freedom. Specifically, the Sixth Amendment to the United States Constitution gives you the right to a lawyer, and the Supreme Court case of Gideon v Wainwright, 372 U.S. 335 (1963) provides state appointed lawyers (public defenders) for indigent people. 

Can I go to Jail or Prison for a Violation of an Order of Protection? What is the Sentencing Range for a Violation of an Order of Protection in Illinois?

Generally, a Violation of an Order of Protection is a class A misdemeanor punishable by up to a year in the county jail. 720 ILCS 5/12-3.4(d). However, if the State charged you with the class 4 felony version, then your sentencing range is 1 to 3 years in the Illinois Department of Corrections. Even if the judge sentences you to probation, you must serve a minimum of 24 hours in jail.

Can I get Probation on a Violation of an Order of Protection?

Yes, you are eligible for a sentence of probation of up to 24 months on the class A misdemeanor version, or up to 30 months on a class 4 felony version.

Not only are you eligible for probation, but Illinois law suggests it:
“the court shall impose a sentence of probation or conditional discharge upon an offender unless, having regard to the nature and circumstance of the offense, and to the history, character and condition of the offender, the court is of the opinion that: his imprisonment or periodic imprisonment is necessary for the protection of the public; or probation or conditional discharge would deprecate the seriousness of the offender’s conduct and would be inconsistent with the ends of justice.” 730 ILCS 5/5-6-1(a).

Can I get Court Supervision on a Violation of an Order of Protection Case?

Yes, court supervision is an available sentence if you are charged with a class A misdemeanor Violation of an Order of Protection. 730 ILCS 5/5-6-1(c). Illinois law states that “if the defendant is not barred from receiving an order for supervision as provided in this subsection, the court may enter an order for supervision after considering the circumstances of the offense, and the history, character and condition of the offender, if the court is of the opinion that:
(1) the offender is not likely to commit further crimes;
(2) the defendant and the public would be best served if the defendant were not to receive a criminal record; and
(3) in the best interests of justice an order of supervision is more appropriate than a sentence otherwise permitted.

When Is Jail Mandatory for a Violation of an Order of Protection?

If you are charged with the class 4 felony version of Violation of an Order of Protection, you must serve a minimum of a day (24 hours) in the county jail. 720 ILCS 5/12-3.4(d). This is generally satisfied by your date of arrest.

What Is the Extended Sentencing Range for a Violation of an Order of Protection?

There are no extended sentencing ranges for misdemeanors. However, if you are charged with the class 4 felony version of Violation of an Order of Protection, and you have been convicted of a felony in the last 10 years, then the maximum allowable sentence is doubled under Illinois extended sentencing guidelines. 730 ILCS 5/5-4.5-45(a). That means that the extended sentencing range for a felony violation of an order of protection is 3 to 6 years in the Illinois Department of Corrections.

What Percentage of your sentence do you serve for a Violation of an Order of Protection?

Violation of an Order of Protection is a 50% sentence. Illinois “Truth-in-Sentencing” law states that: “the rules and regulations shall provide that a prisoner who is serving a term of imprisonment shall receive one day of sentence credit for each day of his or her sentence of imprisonment.” 730 ILCS 5/3-6-3(a)(2.1). So if you received an imprisonment term of 3 year in the Illinois Department of Corrections, the most you would actually serve is 1.5 years assuming you do not receive any other credits.

How long Is the Mandatory Supervised Release or Parole Period for a Violation of an Order of Protection?

For the class 4 felony violation of an order of protection, a person sentenced to the Illinois Department of Corrections will not have a mandatory supervised release period unless the Prisoner Review Board, based on a validated risk and needs assessment, determines it is necessary for an offender to serve a mandatory supervised release term. If the Prison Review Board decides to put you on Mandatory Supervised Release, the maximum period will be 1 year. 730 ILCS 5/5-8-1(d)(3). But you should know that if you are released early from the Department of Corrections as a result of sentencing credit, “the Department, as a condition of release, shall require that the person, upon release, be placed under electronic surveillance.” 730 ILCS 5/3-6-3(f).

Can I Possess a gun if I am convicted of a Violation of an Order of Protection?

Generally, no. Let me explain. First, if you were convicted of the class 4 felony version of violation of an order of protection, then you cannot possess a firearm as a convicted felon. Second, if you currently are the subject of an order of protection, and that order bars you from possessing a firearm, then once again, you cannot possess a firearm. Third, if you violated your order of protection by the use or possession of a firearm, then you cannot possess a gun until 5 years after the conviction. But, if you:
1) are the subject of an order of protection, and
2) the order does not bar you from possessing a firearm, and
3) you are convicted of a misdemeanor violation of an order of protection, and
4) your conviction was not based on the possession or use of a firearm,
then, technically you could still possess a firearm (but the Illinois State Police would probably deny your FOID application). See my FOID Violations guide and 430 ILCS 65/4(a)(2)(vii-viii).

How to keep a Violation of an Order of Protection Case off your Record?

There are several ways to keep a conviction for Violation of an Order of Protection Case off your criminal record. Here are some of the ways:

How to Win a Violation of an Order of Protection Case at Trial?

“I didn’t know that she would be there” defense. One of the best cases for the defense is People v. Reher, 361 Ill. App. 3d 697. In that case, a defendant went to the K-Mart and happened to come into contact with his daughter and his daughter’s mother. His daughter’s mother, however, had an order of protection against him which included a stay away provision. The State charged Reher with violating an order of protection, and his argument was that he had no idea that his daughter’s mother was going to be at the store. The Court held that “a violation of a stay-away order does not encompass aimless, unintentional, or accidental conduct.”

“I didn’t harass, intimidate, interfere with personal liberty, or stalk the victim” defense. Not every order of protection involves no contact or communication with victim. When there are children involved, the order of protection can allow for visitation and communication. It is the State’s burden to prove that a specific communication was to harass. One case on this issue is People v. Spencer, 314 Ill. App. 3d 206. In that case, the defendant called to his ex-girlfriend on the phone. She was the mother of his child. She hung up the phone on him before he could say what he wanted, and immediately reported the call to the police. The appellate court, in reversing the conviction, held that “there is no evidence here that defendant’s call was not for a reasonable purpose. In fact, there is no evidence at all of the purpose of defendant’s call.”

I didn’t know about the extension of the order of protection” defense. There is a case directly on point on this one titled People v. Hinton, 402 Ill. App. 3d 181. In that case, the police served the defendant with an emergency order of protection. The victim subsequently obtained a 2-year plenary order of protection, extended the stay away condition that was in place with the emergency order of protection.

The State charged the defendant with violating the plenary order of protection, but presented no evidence at trial that the defendant knew about the plenary order of protection. Specifically, they failed to show that the defendant appeared for the plenary hearing and failed to show that the police served him with the plenary order afterwards. As a result, the appellate court vacated his conviction because the State failed to show proper service of the plenary order of protection.

How to Win a Violation of an Order of Protection at Motion?

There is one case on the books where a judge threw out a Violation of an Order of Protection case on a motion. In People v. Barwicki, 365 Ill. App. 3d 398 (2006), a judge vacated the order of protection nunc pro tunc to the date of entry because the defendant and victim had reconciled their marriage. The State, however, wanted to proceed with criminal charges against the defendant for violating the order of protection. The trial court dismissed the criminal case because the charge was now based on an invalid order of protection. The appellate court affirmed the dismissal.

How Can Domestic Violence Court Keep a Conviction Off Your Record?

Since a Violation of an Order of Protection is a form of domestic violence, the offense is eligible for Domestic Violence Court. The goal of that specialty court is to rehabilitate families through treatment and not incarceration. Many courts understand the need to keep fathers and mothers in the home, and have those parents continue to be contributing members to society. A conviction would not only burden the defendant, but ultimately burden the victim and children. Successful completion of Domestic Violence Court in many cases results in a dismissal of your case. That’s right, no criminal conviction at the end of the program is possible.

How to Avoid a Violation of an Order of Protection Conviction through probation under the Substance Use Disorder Act (Previously TASC Probation – 20 ILCS 301/40-10)?

Under the Substance Use Disorder Act, the judge can sentence you to treatment as a condition of probation. Although a conviction initially enters against you, the good news is that “upon successful fulfillment of the terms and conditions of probation the court shall discharge the person from probation. If the person has not previously been convicted of any felony offense and has not previously been granted a vacation of judgment under this Section, upon motion, the court shall vacate the judgment of conviction and dismiss the criminal proceedings against him or her.” 20 ILCS 301/40-10(e).

How to Keep a Violation of an Order of Protection Conviction off your Record by Diversion or Deferred Prosecution Programs?

Many counties have diversion or deferred prosecution programs which are alternatives to the criminal justice system. Specifically, you and the prosecutor enter into an agreement that if you comply with the terms of the program (which usually include treatment, classes, and/or community service) the prosecutor will dismiss the case. If the prosecutor is offering a diversion program, then accepting and complying with the program is almost always the best possible result.

How to Keep a Violation of an Order of Protection Conviction off your Record through a Plea Agreement (Reduction on the Charge)?

Although rare, prosecutors sometimes move cases by giving defendants “a bargain.” A reduction from Violation of an Order of Protection to supervision on a disorderly conduct, assault, or a criminal trespass to land is very good disposition. If the State charged you with a class 4 felony violation of an order of protection, then a reduction to misdemeanor harassment by electronic communication, battery, or aggravated assault is a very good disposition.

Other Domestic Violence Guides

If you are looking for information about:

• Domestic Battery cases, then check out our guide to Domestic Battery cases in Illinois.
• Aggravated Domestic Battery cases, then check out our guide to Aggravated Domestic Battery cases in Illinois.
• Interfering with the Reporting of Domestic Violence, then check out our guide to Interfering with the Reporting of Domestic Violence cases in Illinois.

Hire Illinois Domestic Violence Lawyer Clyde Guilamo

I offer this Illinois Violation of an Order of Protection guide as free legal education. #notlegaladvice. If you found this article helpful, then consider giving us a review on Google! And if you have specific questions about your case, give me a call.