Most people say that family is their top priority, making protective orders against family members a delicate and complicated matter. The law on protective orders is equally not simple. There are several aspects that only a skilled criminal lawyer could handle. If you have been issued a protective order, you want to reach out to your attorney for legal counsel.
At California Criminal Lawyer Group, we have helped on hundreds of protective order cases. We thoroughly review the order’s facts, the circumstances that led the court to issue it, and its terms and conditions before taking the next step. Also, remember that some family members misuse protective orders to punish others for making decisions against their wishes, and your case could be one of these.
If we find that this is the case, then you won’t have to comply with the order. If a family member has obtained a restraining order against you, this article will help you understand your situation and what you can do about it. There are several types of protective orders, but this article focuses on emergency protective orders.
Understanding the Law on Emergency Protective Orders (EPOs)
In many states, including California, laws on protective orders usually come into play in cases to do with domestic violence, child abuse/abduction, or elder abuse. Emergency protective orders prohibit abusive wives/husbands from going near the protected persons for specified periods. In California, protective orders are also known as emergency restraining orders.
Restraining Orders for Domestic Violence Cases
One can request a domestic violence restraining order if the restrained person has abused them, and they have a close relationship with them. A close relationship means the two parties are domestic partners, married, separated, divorced, dating or dated before, live together, have a child together, are in-laws or family members.
Protective Orders for Elder Abuse Cases
One can request for an independent abuse or elder abuse protective order if:
- They are sixty-five years old and above (or are between eighteen and sixty-four years with certain physical and mental disabilities), and
- They are a victim of neglect, abuse, deprivation by a caregiver, or bodily injury
What Is an Emergency Protective Order (EPO)?
An EPO is a court order meant to protect an individual from another named person. Generally, the California Code of Civil Procedure provides that an EPO can protect against physical abuse, threats of violence, stalking, or harassment. Additionally, an EPO may include terms and conditions for:
- Stay-away orders: Stay-away orders are meant to keep the restrained person a given distance away from the protected or their children, home, work, or other specified areas.
- Personal conduct terms: These stop the restrained person from committing various acts, for example, harassing, making phone calls, destroying personal property, threatening, or assaulting the protected person.
- Residence exclusion orders: These orders make the restrained person move out from where the victim resides.
- Participation in various activities: For instance, Assembly Bill (AB) 1396 authorizes the judge to order you to participate in compulsory clinical counseling or anger management if it considers appropriate.
A judge may issue an Emergency Protective Order upon the California law enforcement officer’s request any time, be it during the day or night. The officer requests this kind of protective order if he/she has any reasonable grounds to believe the individual to be protected is in the present and immediate danger of domestic violence, child abuse/abduction, or elder/dependent abuse. The reasonable grounds are based on the protective person’s allegations of recent incidents of abuse or threats of abuse by the party against whom the order is sought.
Usually, the police officer is called to an individual’s residence if there’s a disturbance. If the officer feels an EPO is necessary, he/she contacts the court to talk to a judicial officer (commissioner or judge). However, an EPO is legal only if a judicial officer issues it as per the police’s exact request after considering the findings necessitated by the California Family law.
The EPO is effected right away and lasts five business days or seven calendar days, whichever is shorter. The EPO intends to provide a long enough protection for the protected individual to apply for the temporary domestic violence restraining order in court. Note, however, that the victim can always try to extend an EPO if he/she feels threatened by the restrained party, and the threat comes when the order is about to expire.
After the expiration of the EPO, a temporary restraining order (TRO) can be issued. The court often issues a TRO before a full hearing on the protective order case to keep the victim and the restrained party apart for an extended period than the EPO would before the court conducts a full hearing. Even if the victim makes allegations of harassment or severe physical abuse, the court doesn’t have adequate time to conduct an immediate hearing. Therefore, it will issue the TRO to keep the parties apart until the hearing is held. Note that a TRO is not served similarly as an EPO. The victim has to file the proper paperwork for this kind of a restraining order to be issued against you.
At the hearing, the judge will consider the facts of the case and make a ruling. For instance, he/she will look at who is telling the truth and establish if the TRO ought to be made permanent. If the judge rules there was harassment or abuse, it could issue a permanent restraining order (PRO) for generally between three and five years, based on the facts. If the judge doesn’t believe there was harassment or abuse, it’ll dissolve the TRO, and the case will be dismissed.
Two primary things a judge must consider when issuing an EPO in domestic abuse cases are:
- A reasonable ground has been affirmed to believe a present and immediate danger of child abuse/abduction, elder abuse, or domestic violence exists.
- An EPO is necessary for preventing the recurrence or occurrence of child abduction/abuse, domestic violence, or elder abuse.
Grounds for an Emergency Protective Order
As we mentioned above, the judge may issue an EPO against you where the police affirm reasonable grounds to believe the EPO is necessary. Reasonable grounds include when:
- The victim is in the present and immediate danger of domestic violence, depending on allegations of recent incidents of abuse or threats of abuse.
- The minor is in the present and immediate danger of abuse by you, depending on the accusations of recent incidents of abuse or threats of abuse.
- That a minor is in the present and immediate danger of abduction, depending on a reasonable belief that you intend to abduct the child/flee with them from the jurisdiction or accusations of recent threats to kidnap the minor/escape with them from the jurisdiction.
- That a dependent adult/ elder is in the present or immediate danger of abuse as described under the Welfare & Institutions Code (W&I) 15610.07. This is also based on the allegations of recent incidents of abuse or threats of abuse by you, except that no EPO will be issued depending only on an accusation of financial abuse.
What the Law Enforcement/Court Does to Have You Not Come Close to the Protected Person
The judge can order the law enforcement officers in its jurisdiction to protect the victim and his/her immediate family members living with him/her. At times, the court can protect the family members living reasonably close to the victim’s home.
What To Do After Being Served With an EPO
As we mentioned before, a family member may misuse an EPO to punish you for making decisions with which he/she disagrees. If a family member has obtained an EPO against you, you have two choices:
- To comply with the EPO’s terms & conditions: Read the EPO carefully and ensure you understand what it requires of you. Irrespective of how unfair the conditions seem to you, you must adhere fully to them because it will lower the possibility of being served a temporary or permanent restraining order. Complying with the EPO means you’ll have to miss family get-togethers. You will also be incapable of communicating with the protected person.
- Challenge the EPO: If you’ve received a misguided EPO, an attorney can help you defend your rights by contesting it. The lawyer will assess the EPO and the conditions therein to establish whether you are a threat to the protected victim or not. Additionally, the judge could consider your step of hiring a lawyer as an act of good faith.
What the Victim Can Do If You Refuse to Adhere to the EPO Requirements
If you don’t follow the EPO requirements, the victim could call the police right away. Then, you can be placed under arrest and face felony or misdemeanor charges. Concealing or taking a minor, thus violating the EPO, may be charged as a felony punishable by fines, state prison sentence, or both. Traveling across tribal or state boundaries intending to break the EPO rules & regulations may be punished as a federal crime as per the Violence Against Women Act. Let us look at EPO violations in detail.
Violating an Emergency Protective Order
Note that restraining orders are not criminal in and of themselves. They’re civil orders. But should you violate them, you can face criminal charges. California Penal Code (PC) 273.6 statute makes it an offense to violate the EPO terms & conditions. You are considered to have violated these terms if the prosecution can prove beyond any doubt that:
- The police legally served you with an EPO
- You were aware of the EPO
- You bore the full capability of adhering to the EPO terms
- You willfully breached the order
Regarding knowledge, you need to be aware of the EPO’s existence for you to be convicted. This comprises having the time/chance to go through it (even when you failed in doing so). And, you commit an action willfully when you do it purposefully or willingly. Also, it’s worth noting that in case you violate another statute while breaking the law on EPOs, you could be prosecuted and convicted under PC 273.6 and the law governing the other misconduct. Crimes convicted alongside EPO violation include stalking, domestic violence, criminal threats, vandalism, elder abuse, and contempt of court.
Breaching the law that governs restraining orders is mostly a misdemeanor punishable by up to $1,000 in fines and a sentence of a maximum of one year in jail. Note, however, that violating the terms and conditions of an EPO subjects you to a wobbler crime in case it’s a subsequent conviction for the EPO or any restraining court order, and your violation involved an act of violence. If you are charged with a felony, you will be subject to up to $10,000 in fines. You may also face a prison sentence for a period not exceeding three years.
Mostly, violating an EPO won’t affect your immigration status. We have times when a criminal conviction leads to an immigrant defendant becoming inadmissible or being deported. An instance is when an offender is found criminally liable for committing an aggravated felony. But a PC 273.6 violation isn’t an aggravated felony.
Also, receiving a sentence under PC 273.6 will only impact your firearm rights if it’s for a felony. The state’s law provides that felons won’t have the privilege of possessing or owning a gun, which means you’ll be denied your gun rights if sentenced for EPO violation as a felony. You won’t be subject to any negative repercussions, though, if found guilty of a misdemeanor EPO violation.
You can usually have your record expunged if you are convicted under Penal Code 273.6. But this can only happen if you completed your jail term or probation sentence, whichever the judge imposed.
Legal Defenses to EPO Violation
Before you are convicted, there are various defenses you can present to prove your innocence. You can argue that:
- The EPO was not lawful
- You did not know of the existence of the EPO
- You act was not willful
- The EPO wasn’t properly served
- Insufficient proof to convict you
The EPO was not lawful: You are guilty of violating an EPO only if you were legally issued with the order. Therefore, it’s a valid defense for you to claim that the EPO wasn’t legal. Maybe, for instance, there wasn’t any legal basis for the court to serve the order.
You did not know of the existence of the EPO: Remember that you have to be aware that an EPO against you exists for you to be accused and convicted for violating it. This means it’s always a valid defense to prove that you weren’t aware that the judge had issued the order against you.
Your act was not willful: You need to have willfully breached the law governing EPOs to be convicted under PC 273.6. Therefore, it is a defense for you to say that you didn’t do so purposefully while violating the EPO’s terms & conditions. Perhaps, for instance, you committed the violation accidentally or due to a mental deficiency or misunderstanding.
The EPO Wasn’t Properly Served: There are strict rules on how an EPO should be served. If your lawyer can prove that the service requirements were not met, you shouldn’t be convicted.
Insufficient Proof to Convict You: The prosecutor has to show, beyond any reasonable doubt, that you indeed violated the terms and conditions of the EPO. Criminal charges against you shouldn’t stand if your lawyer can cast reasonable doubt on the prosecution’s evidence by showing that the proof they have against you is unreliable and inadequate.
If the police have served you an EPO, contact our law offices for a cost-free consultation at any time of the day or night. We will thoroughly explore your case and advice if the order is valid or you can challenge its authenticity. If you have been charged for an EPO violation, we will review your situation and develop a strong defense that will yield the best possible outcome.
Consequences of Having an EPO Against You
Having a protective order against you can subject you to severe consequences. Let us look at a few:
An EPO Can Appear in a Background Check
In most cases, an emergency protective order can show up when someone is carrying out a background check on you. Most protective orders are classified as CLETS Orders. By this, it means they’re fed into the state’s criminal database referred to as California Law Enforcement Telecommunications System (CLETS). All law enforcement departments can access the records, and they may use them to enforce protective orders. CLETS orders may create serious issues when searching for work, trying to acquire a California license, or applying for school admission. Our lawyers can usually prevent the entry of a restraining order to a CLET when they represent clients by negotiating with the protected person.
When an EPO Affects Your Home
An EPO may require you to stay within a given distance away from the protected party. If you’re living together as your husband/wife, you will be forced to leave the house immediately. You will probably have to be escorted back to your home to pick your belongings. The visit is likely to last less than one hour, and you’ll only be capable of collecting stuff that is undisputedly yours.
An EPO Can Affect Your Work and Life
A protective order intends to protect a party from you who has supposedly harmed or threatened them. Thus, even if you are only issued with an EPO, your life will be affected. For instance, the EPO can adversely affect your relationship with your spouse or other family members, various civil rights, and employment. However, note that every situation is distinct, and not every condition applies to each order.
An EPO Can Affect Your Daily Personal Life
It is more likely that you frequently visit the same spots or joints as the victim. An EPO may mean no contact regardless of the circumstances. Therefore, if you unintentionally run into the protected party when in a food store, you may be in trouble. An EPO can also affect your personal life in this manner:
- Contact with your kids might be restricted or entirely cut off
- Your immigration status may be impacted if you aren’t a full U.S citizen
- You won’t be permitted to possess any firearms or weapons
- Violating the EPO, even if it’s accidental, may mean hefty fines or jail time
When an EPO Threatens Your Job
Under several circumstances, an EPO wouldn’t affect your job where you’ve worked for a considerable period. However, because EPOs are public records, it could affect job searching. Your prospective new employers may know of the restraining order against you when conducting a background check. There are various reasons an EPO may impact your present job. They include:
- If your job requires you to use a gun, you may need to change tasks or find another job. An EPO can bar you from owning a weapon.
- An EPO prohibits you from coming within a hundred yards of the protected person. Thus, if you work nearby or even in the same building, adhering to the EPO terms and conditions may not be possible.
- Technically, a lot of employers can fire you without any cause. In case your employer becomes aware of the restraining order against you and thinks it’s a threat to the business’s reputation, you may lose your job.
Hire an Experienced Restraining Order Attorney Near Me
Restraining order court cases aren’t simple. Most people who try to solve cases on their own after being issued with an EPO only end up inviting more trouble that could lead to the issuance of a TRO or PRO, which could, in turn, ruin, for instance, their career. If you have a restraining order against you (and not only an EPO), you must handle the situation seriously and professionally, which involves hiring an expert restraining order attorney.
At the California Criminal Lawyer Group, we have been handling protective order cases for several years and have vast experience in this area. We invite you to retain our services as soon as a protective order is issued against you. We will review the order and advise how you can proceed legally. Contact us at 408-622-0204 for a free consultation. We serve clients in San Jose and the surrounding counties.