Domestic violence is on the rise, not just in California but also in other states. The good thing is that there are laws in place to protect those that face abuse in their homes, whether a spouse, child, or any other member of a family. The consequences of those found guilty of domestic violence are grave. However, it is not uncommon to find a person facing false accusations for domestic violence. The majority of those that face severe domestic violence seek emergency protective orders against their abusers.
At Orange County Criminal Lawyer, we believe that everyone facing a protective order deserves a fair trial. We can put together a strong defense against your charges to have them dropped or reduced. We could also help you deal with other legal matters surrounding the issuance of the restraining order. Therefore, if you are in Orange County, CA, and have an Emergency Protective Order against you, get in touch with us.
An Overview of California Protective Orders
Domestic violence is demeaning and could leave the victim facing other issues in life, including shattered self-esteem. The law against domestic violence enables those who face abuse in the confines of their homes’ confines to seek justice and enjoy freedom from abuse. One form of protection that comes in handy when a person is in dire need of help is a protection order. In California, protective orders, also called restraining orders, are usually issued in domestic violence cases. The orders ensure that the abusive person does not come within a specific distance of their victim for a given period. Most protective orders are temporary, but some can be made permanent, depending on the situation.
Victims of domestic violence are subject to all manner of abuse, not just physical abuse. It could be mental or emotional abuse. Some people live in abusive families for years before they seek help. When a person seeks help from the police, the police give them a chance to obtain a restraining order against their abuser, especially if they feel that their life or the lives of their loved ones are in danger. The order seeks to protect the victim of abuse for a specified period before the court determines their case.
There are mainly three types of protective orders available to victims of domestic violence in California. Note that these orders do not stop the abusers or stalkers from hurting their victims. They only permit the victims to call the police on their abusers and have the abusers arrested if they violate the order. These protective orders include:
Emergency Protective Orders
Just as their name suggests, the police issue these types of protective orders on emergency cases. When law enforcement officers witness a domestic violence situation, one of the two parties must leave home temporarily until the case is determined. The person ordered to leave home is the alleged abuser, though it is not always easy to tell the abuser and the victim in a situation like that. The alleged victim is then issued with an emergency protective order. It protects the alleged victim for a few days before he/she can go to the police station in person to obtain a protective order and file a case against the abuser.
Protection orders work the same as EPOs only that they are valid for a more extended period. Again, the victim must obtain the order in person, as opposed to an EPO, which is offered by the police. A protective order can serve the victim for between one to five years, while others can be made permanent. After the end of its validity, the court can review the order if the victim still feels threatened by the abuser.
A restraining order is much the same as a protective order, only that it requires the alleged abuser not to do specific things, as opposed to not get into contact with their victim. Restraining orders are issued when there is an ongoing case involving the alleged victim and abuser. It could be a divorce or another type of civil case.
California Emergency Protection Orders
As mentioned above, emergency protective orders (EPOs) are protective orders issued in emergencies. Judges issue these orders on law enforcement officers’ requests who have witnessed a domestic violence situation. EPOs can be given at any time of the day or night in cases of domestic violence. The only requirements for the issuance of this order are reasonable grounds that the alleged victim of abuse needs immediate protection against their abuser. The officer will be required to prove that the victim could be in immediate danger of domestic violence.
The evidence could be based on what the officer saw or the allegation/complaint the alleged victim lodged against the alleged abuser with the police department. The abuse or threat of abuse in question must be very recent and still fresh in the victim’s mind. This way, he/she will be in reasonable fear of their safety or the safety of their loved one. Note that an EPO will only be valid if a judicial officer issues it. It could be either a judge or a commission. Again, EPOs can only be issued under a reasonable request of a police officer.
However, emergency protective orders are temporary. The order is meant to provide temporary relief from an alleged abuser before the victim obtains an actual protective order. In that case, the EPO will only be valid for a maximum period of one week. Once it is issued, it will go into effect immediately. It means that the victim can call the police on the alleged victim a few minutes of hours after receiving an EPO. This protective order only allows the victim enough time to apply for an actual protective order or restraining court order. Once he/she is issued with the protective or restraining order, the EPO loses its validity.
Note that there are only two grounds on which a judicial officer can issue out an emergency protective order in a case related to domestic violence:
- When there are reasonable grounds to believe that the victim is in immediate and present danger of domestic abuse
- If there is a valid reason to believe that the emergency protective order is necessary to prevent the occurrence or recurrence of domestic violence
What to Do If I Have an EPO Against Me
From the discussion above, it is clear that protective orders are severe in California. When there is a protective order issued against you, it must be a severe issue that requires your full attention. Therefore, ignoring an order like that is out of the question as it could land you in even more significant problems than you already have. The right to do is to get in touch with a criminal attorney as soon as possible. Your attorney will explain the implications of the restraining order and your options. He/she will also guide you through the legal process to have the order lifted to reunite with your family.
You should know that you, too, have rights, just the same as the alleged victim of abuse. Suppose a person has taken an emergency protective order against you for an alleged case of domestic violence. In that case, you have a right to be informed of the court order’s existence, be invited for a court trial, and protect yourself against the allegations. Without notice, you will not know what to do and how to behave within the seven days the order will be in effect. If the alleged victim obtains a protective order, you have a right to a hearing too. It gives you a platform to explain your side of the story and have the judge determine the case.
Thus, you must never disregard a temporary restraining order. If asked to stay away from the petitioner, do so, but seek legal help to understand your constitutional rights and how you can take part in the legal process. Note that you can face additional charges if you violate a protective order that the court has already issued. If you ignore the EPO and the petitioner seeks a permanent protective order, several aspects of your life could be affected. It is because the order can show up if a person runs a background check on you. Your gun rights could also be affected.
Here is what you should keep in mind at all times:
- Obeying the EPO will keep you out of deeper trouble. If you have been served the emergency restraining order, go through it and follow all its contents. Mostly, you will be required to stay out of any kind of contact with the petitioner. Stay away, even if you’ve got a legal defense against the protective order and any other charges you may be facing. Do not attempt to talk it out with the petitioner to have them drop the charges or the idea of obtaining a more permanent protective order. Doing so will be considered as contempt of court and could attract additional penalties.
- Gather any evidence you feel could help with the case. It could be any physical proof that might have been mentioned in the petition, for example, videos, photos, clothes, and other objects. Also, try to remember events and incidents that might help your case. You can write them down and/or share them with your attorney.
- Put together all records and/or documents that might relate to your case. They could be emails, phone calls, computer records, GPS records. Take note of any records that could help show your whereabouts when the alleged incident happened. Again, share them with your attorney as they could help prepare a strong defense against the allegations you are facing.
- List down all possible witnesses that could help strengthen your case. Witnesses may include everyone you feel has information regarding the incident in question, the accusations you face, and/or the petitioner. Obtain their contact information. Talk to them beforehand, so they can be ready to provide their testimony when the need arises.
All these will help in case the alleged victim has made untrue accusations about an occurrence. Pictures and video recordings about the event will help clarify any doubts the judge might have. Again, witnesses will help shed more light on the incident in question. A witness can even bear witness that you weren’t where the petitioner alleges you to have been when the incident happened. For example, if the petitioner alleges that you have been sending them endless calls or texts, the gathered phone records will show that he/she is lying to the court. GPS records can also show details of your whereabouts if you face accusations of driving by or to the petitioner’s home numerous times.
Note that the contents of the petition will guide the kind of evidence you need for your defense.
What Not To Do
Similarly, there are several things you should not do if you have an emergency restraining order against you. Some of them are:
- Never try to destroy any evidence even when you feel that the evidence might hurt you. However minor an offense it may seem, destroying evidence will portray you as a suspicious person and could general to additional criminal charges.
- Never try to communicate with the petitioner. A protective order is meant to stop any form of communication between you and the petitioner. Therefore, trying to communicate with the petitioner will be treated as contempt of court. Communication here includes emailing, calling, verbal communication, or even texting.
- Do not try talking to or influence any witness that is expected to testify in favor of the petitioner. Remember that it is a criminal offense to dissuade a witness, as provided under California Penal Code Section 136.1.
- Do not ignore, disregard, or disobey an emergency protective order in any way. As mentioned above, doing so is regarded as contempt of court, an offense covered under Section 166 of the California Penal Code. Contempt of court comes with severe consequences such as time behind bars and a hefty fine.
Note that in violation of the court order, the petitioner is allowed by law to bring it up in the trial or file a motion in court. It will make it hard for you to protect yourself against the charges you are facing or stop the petitioner from obtaining a permanent protective order.
Note that if the petitioner is living with your children, the emergency protective order will prevent you from establishing contact with those children. If contact is allowed, it will only be under supervised conditions, at least until the court determines your case. It means that you might compromise your issue if you tried to see the children in school or at a family member’s home. If that is done, the petitioner has every right to bring it up in the trial or file a motion against you, alleging that you violated the restraining order.
Violation of Emergency Protective Order
Violation of a California EPO is a criminal offense, whose consequences are provided under Section 273.6 of the State’s Penal Code. When this happened, new charges of the violation will be brought up, for which you must stand trial. The prosecutor has to prove some facts of the case for you to be found guilty of the violation. They include:
- That an emergency protective order was issued against you
- That you were well aware of it
- That you had the ability to follow it
- That you willfully violated the order
If all these elements are satisfied, then you will be found guilty and consequently convicted.
Violating a protective order is mainly charged as a misdemeanor in California, punishable by:
- A jail sentence for a maximum period of one year
- A fine of not more than $1000
However, there are times the offense can be treated as a wobbler, which means that it could be charged as either a felony or a misdemeanor. This is if:
- It is your second time to face a conviction for violating a court order.
- The violation involved an act of violence.
If any of both of the two circumstances apply and you get a misdemeanor conviction, the penalties remain the same as above. However, if you get a felony conviction, the penalties will be stiffer, and could be:
- A prison sentence for not more than three years
- A fine of not more than $10,000
Generally, a violation of a court order will not affect your immigration status. However, you may face deportation or marked as inadmissible to the United States if the offense involved the commission of an aggravated felony.
Again, violation of a court order does not affect a person’s gun rights unless if it is convicted as a felony. California law does not allow felons to own or possess a gun. If the defendant already has a weapon, the weapon will be taken away, and not be allowed to purchase any in the future.
How Can an Attorney Help Me?
Legal matters regarding protective orders are sometimes complicated and difficult to understand especially if it is your first time having a court order issued against you. Hiring an attorney will help you understand the terms of the emergency protective order. Remember that you are required to adhere to the terms of the court order to not face additional charges for its violation. That is why you need an attorney by your side to help you understand what to do and what not to do to remain legally safe.
After getting an emergency protective order, the petitioner can move to court at any time to obtain a permanent restraining order. The permanent order will stop any form of contact between you two for a long time. If this is not what you want, your attorney must act fast to petition the court against issuing the permanent protective order. An experienced attorney will know what to do and how to do it within a short period since the EPO is only useful for a few days.
An attorney will also help you prepare strong evidence against the accusations you are facing to ensure that you do not lose in the hearing. An experienced attorney will know the kind of evidence that is needed. He/she will also know the form in which this evidence is required in court to help in your case. Your attorney will also present the evidence in court and counter any evidence presented by the petitioner. He/she will do anything possible to ensure that you do not lose the case.
In case of a violation of the EPO, your attorney will ensure that you are well represented not to face additional penalties. He/she may argue that you did not know of the emergency protective order or that you did not willfully violate the order. Your attorney could also find valid evidence to say that the protective order was not lawful. If the arguments are reasonable and are accepted in court, the court will drop your charges for contempt of court. Winning, in this case, will also improve your chances of winning in the underlying case.
Whether or not you are in the wrong, your rights should be respected. Your attorney’s primary task is to ensure that neither the petitioner nor the court is violating your rights. A protective order will restrict your movement and contact with the people you love. If this infringes on your rights, then the court will be compelled to lift the order.
Find an Orange County Criminal Attorney Near Me
If an emergency protective order has been issued against you, it means that more legal issues are coming. Thus, you need the help of an experienced criminal attorney to navigate the legal process and avoid more legal problems. There is a lot that an experienced criminal attorney can help you with, including understanding the implications of the court order and your options. At Orange County Criminal Attorney, we have attorneys who have extensive knowledge and experience handling all types of California court orders. Therefore, if you are in Orange County, CA, call us at 714-831-1858. We can work together to fight all your charges and ensure that your rights are protected.