There are different types of restraining orders that work to protect vulnerable victims from recurring domestic violence and other unlawful activities. Yous that threaten their safety. Among such rules is the Emergency Protective Order issued to any suspected domestic violence abuser. It keeps him/her away from the victim seeking protection until the judge issues further directives. Once you receive an Emergency Protective Order to stay away from your spouse, children, or any other person who complains of your violent behavior, it is crucial to follow the guidelines and regulations until you receive further directives. A violation of any orders mentioned in the Protective Order may attract serious consequences that include jail sentences and payment of fines.
Sometimes, dealing with the restrictions of an Emergency Protective Order may be difficult, especially when you do not understand the reason for such orders issued against you. Consequently, you could easily face arrest and charges for violating the regulations, even without proper notice or understanding of the protective order regulations. Therefore, seeking the services of an experienced criminal defense attorney can help shed some light on the matter to help you avoid making any further aggravations after facing violation charges. At the Orange County Criminal Defense Attorney Law Firm serving in Orange County, California, you will receive the necessary legal support, guidance, and representation when charged with violation of an Emergency Protective Order. With our help, you will analyze the restraining orders and help come up with persuasive legal defenses for the charges, to help you obtain a favorable case outcome.
The Nature of an Emergency Protective Order
Under section 273.6 of the California Penal Code, a Protective Emergency Order is among the three types of restraining orders you may receive from court directives, in cases where you face allegations of domestic abuse or unlawful behavior that puts vulnerable victims in danger. Usually, the Emergency Protective Order serves to prevent you from coming into contact with the victim of domestic abuse who reports the matter to a law enforcement officer. Furthermore, section 6250 of the California Family Law also provides for the functionality of an Emergency Protective Order by stating that anyone in fear of immediate danger of domestic violence may also apply for an Emergency Protective Order.
After the victim reports cases of abuse or reasonable grounds for fear of his/her safety caused by your actions, the law enforcement officer handling the matter will make an application for the Emergency Protective Order on behalf of the victim who reports the issue. It is important to note that only the relevant officer can make the application for the protective orders. Thus, if you have any information concerning the claimant colluding with an attorney or an enforcement officer to fast track an application for the Emergency Protective Order, your defense lawyer may raise it in court as a point of concern.
The department dealing with domestic violence cases also provides the services of a judge for twenty-four hours to approve the protective order applications for any victim of domestic violence in immediate danger. Thus, you, as the defendant may have an Emergency Protective Order in effect even without your knowledge, especially when the victim makes an application at night and fails to inform you of its effectiveness. As a result, you may face charges for violations for visiting the person the following day despite the lack of knowledge of such orders. Nevertheless, your criminal defense attorney can raise the point during the trial as a counter-argument for the charges you face.
The protective orders are valid for up to one week and take immediate effect upon issuance by the judge. The interpretation of this duration often means that you must stay away from the victim for five days or seven days, depending on when the person obtained the Emergency Protective Orders.
During the stipulated period in the Emergency Protective orders, the law enforcement officers and the victim will push the applications to obtain a Temporary Restraining Order that requires you to avoid any contact with the applicant for a longer duration, usually twenty to twenty-five days. After the conclusion of the period, the victim may then apply for a Permanent Restraining Order. The directives will keep you away from domestic violence victims for up to five years based on your past violent interactions and threats to the person.
Therefore, the Emergency Protective Order is the foundation for a victim seeking immediate protection from you, especially where he/she has experienced violent episodes with you as the perpetrator. Consequently, violating Emergency Protective Orders may send the wrong message to law enforcement officers, who will arrest you and book you for arraignment. Afterward, you will undergo a trial to determine whether you are guilty of the violation.
Elements that the Prosecutor Must Prove
When you face arrest and trial for violation of Emergency Protective Orders, it is up to the prosecutor to prove your guilt by showing your engagement in all relevant elements of the crime. The burden of proof rests on the prosecutor to promote a reasonable criminal case, whereby you will not face conviction until there is proof beyond any reasonable doubt that you violated the orders. The main elements for the prosecutor to prove are:
There was a Valid Issuance of the Emergency Protective Orders
The primary element to prove is that a lawful and valid Emergency Protective Order was in effect at the time you violated it. The prosecutor must show that the orders were obtained and issued lawfully because contrary circumstances would mean that you are innocent of all accusations you face.
Proving that a valid Emergency Protective Order was applicable requires the prosecutor to show that a qualified law enforcement officer collected all necessary information from the victim. The details include the reason for making an application, the victim's details and address, as well as your details for inclusion in the restraining documents.
Moreover, the prosecutor should also show the considerations that the presiding judge undertook before deciding on granting the victim his/her application for the emergency orders. Typically, the judge should make considerations as to whether your violent actions created sufficient grounds for the victim to seek Emergency Protective Orders.
For example, he/she will seek information to determine whether you put a child's wellbeing in danger by abusing him/her or threatening to abduct the minor. Several sworn statements from domestic violence victims may also be enough to persuade the judge to issue the orders, primarily if they include instances when you became violent or issued threats.
Once the judge receives the relevant information, he/she provides the orders that should be enforceable for one week, which takes effect immediately. During the trial, the prosecutor should provide evidence to show that the process followed was lawful. He/she should include the victim's statements that indicate valid reasons for seeking protective orders.
You Knew of the Emergency Protective Orders' Effect
Secondly, the prosecutor should successfully prove that you were aware of the existence of the Emergency Protective Orders despite their short duration of effectiveness. In this case, knowledge of the existing orders is the main element in question, as it determines whether your violation was valid. Moreover, the prosecutor should show that you had a reasonable opportunity to read through orders to understand the restrictions you were to uphold and the consequences of failing to follow them.
Some sources of evidence from the prosecutor may include a record of service of the documents that the claimant presents. A letter of service contains information to show that you received the relevant records containing a copy of the Emergency Protective Order and that you signed the service letter as evidence of receiving the orders. Subsequently, such documentation will provide the prosecutor with all the required proof of your knowledge about the rules and what they prohibited you from doing. e
Alternatively, the claimant can serve as a witness in providing a testimony to prove that he/she delivered the Emergency Protective Orders to you or contacted you to inform you of their existence. Thus, the prosecutor may show the means of communication used by the claimant to alert you on the orders requiring you to keep away.
You Had the Ability to Follow the Emergency Protective Orders
Apart from providing that you knew of the existing Emergency Protective Orders, the prosecutor must show that you could follow them without any difficulty. The element of crime distinguishes defendants who acted willfully in violation of those who faced limiting circumstances that made it difficult to follow the regulations mentioned in the Emergency Protective Orders. For example, if you abused your spouse and children and ordered them to move out of your matrimonial home because of the abuse, the prosecutor will check whether you had the means to look for alternative housing.
Therefore, it is not uncommon for the prosecutor to question your means of earning a living, and whether you own any property where you could have stayed during the period when the protective orders were in effect. Moreover, the prosecutor may ask whether you made an effort to check into an affordable hotel or rental, or if there were any relatives or friends ready to house you during the restraint period. If such avenues of support were available, the prosecutor successfully proves your unlawful intentions to violate the orders.
The prosecutor may also prove that you were able to follow the protective orders by requesting you to interpret the content stated out in the documents. Usually, the wording of the rules is not difficult to understand, meaning that any defendant who receives the restraining orders should uphold the directives or face the repercussions of making a violation.
You Wilfully Violated the Emergency Protective Order
The last element of the offense for the prosecutor to prove is that you acted willfully in violation of the Emergency Protective Orders. A defendant willfully commits a crime if he/she does something on purpose and wilfully, with knowledge of the possible consequences for the actions. The prosecutor must show that certain elements were present in deriving your wilful intention to violate the orders, including your behavior and any communication you made to the victim of domestic abuse.
For example, several witnesses may appear in court to testify of your recurring behavior of going to the victim's premises without permission, or loitering near the victim's school or workplace, ready to contact him/her contrary to the provisions in the protective orders. Also, if you broke into the person's home when you were supposed to stay away, the prosecutor will include the events as sources of evidence to show that you willingly violated the orders.
Additionally, the prosecutor may present evidence showing different avenues of contacting the victim that you used to intimidate or lure him/her into letting you go back home. In such situations, you will already violate the protective restraining orders, even if you contacted the person to request a chance to work things out and seek forgiveness. Therefore, it is necessary for you as the defendant to refrain from engaging in any form of contact until your lawyer advises you on the next step to take after the effectiveness of the Emergency Protective Orders lapses.
Penalties for Violating an Emergency Protective Order
Section 273.6 of the Penal Code also provides penalties for the offenses created by violating restraining orders. The crime attracts misdemeanor charges. Thus, you may face up to one year in county jail or a maximum fine of $1,000.
However, sometimes the violation of an Emergency Protective Order can be charged as a wobble crime, mainly if you engaged in any aggravating activities that increased the risk of harm to the victims of domestic violence. For example, if you abducted your child and exposed him/her to danger during the abduction period, you are more likely to face wobbler charges that could amount to a felony sentence.
Breaking into the restricted place of residence and injuring the victims can also attract severe charges and penalties, primarily if the violence resulted in severe bodily harm for the affected victims. Consequently, you may face felony charges for the offense, leading to a three-year imprisonment sentence in state prison. Alternatively, you could face a $10,000 maximum fine penalty for the crime. Wobbler charges for violating a restraining order may also arise whereby you are a repeat offender who currently faces a second-time conviction for a crime related to domestic abuse.
Defenses for the Offense of Violating an Emergency Protective Order
As a defendant facing violation charges, it is crucial to seek the services of an experienced criminal defense attorney who will help you prepare for your trial and present sound arguments in your defense. Each defense is unique to the circumstances of your case, and the types of charges you face. As a result, it is crucial to consult your defense attorney, who will help you choose the best defenses that are suitable for your case. Some of the available legal arguments include:
There Was No Proper Legal Basis to Issue the Emergency Protective Order
Sometimes, you may face restrictions from emergency orders that lack any legal standing, mainly if the regulations were issued based on unreasonable accusations from the applicant. For example, if you and the applicant are separated and do not maintain constant communication, he/she may make false reports about a violation.
Since most Emergency Protective Orders are issued shortly after application because of their urgency, it is not uncommon for the judge to approve them even when there is no proper verification of facts and accusations made by the claimant. Thus, you may feel that there is no basis for the protective orders, especially if you do not live with the claimant. It is up to your criminal defense attorney to prove that the applicant was on unlawful grounds, including false allegations about your activities and engagement in the abuse of the victim.
There Were Conflicting Restraining Orders
Emergency Protective Orders serve as an interim solution to a victim who fears for his/her safety based on your past acts of domestic violence against the person. Once the effectiveness of the Emergency Protective Orders lapses, you may assume that you can resume contacting the claimant, without knowledge of any his/her further action to apply for a Temporary Restraining Order. Consequently, you may face arrest for violating a restraining order because of an overlap in obtaining new rules, especially when the victim does not inform you about applying for additional temporary restraining orders.
In such a case, you may raise a defense stating that you acted based on a genuine mistake of fact. The basis of your argument will involve proving that you were unaware of additional restraining orders after the lapse of the seven-day Emergency Protective Orders.
You Did Not Receive Proper Notice of the Emergency Protective Orders
In some cases, the claimant may not inform you of his/her application for protective orders, especially when they experienced violent behavior and reactions from you in the past. However, fear is not a reasonable justification for their lack of proper communication, mainly because the lack of knowledge about a restraining order may attract severe penalties. Thus, your defense attorney can prove that you were unaware of the Emergency Protective Orders and their effectiveness during the period when you contacted the victim. Since the orders serve for a short time, you may also state that the victim ought to have informed you of their effect to provide you enough time to seek alternative accommodation until the judge gave further directives.
Your criminal defense attorney should provide evidence to show that you were unaware of the orders issued against you by providing all relevant information about your whereabouts during the period when you were supposed to receive the documents. Moreover, you may allow authorized officers to search your residence and devices to check whether you received any information on the protective orders. If the officers retrieve no such details, your defense will counter any claims made by the prosecutor, and the judge may consider an acquittal of charges.
Your Violation was Unintentional
You may also face unfair charges and trial for making unintentional contact with the victim protected by the emergency orders. In most cases, unintended contact arises when the victim calls or sends you a message using a different number, leading you to answer it. Once you text message the victim back, or pick a call and begin a conversation, you are eligible for arrests and arraignment for violation charges. Thus, it is important to avoid picking calls from unknown numbers during the period of restraint. Sometimes, the protected victim may also use an identifiable contact channel when contacting you, asking you to consider going back home. While such messages may appeal to you, it is vital to remember that any responses will still amount to a violation.
In a situation where you suspect that the applicant may have used such channels to trap you into violating the orders, you may raise the defense of lack of intention, primarily because you did not initiate the contact. However, presenting the argument is not as straightforward because your lawyer should prove the victim's malice in making contact with you.
Find a Criminal Defense Attorney Near Me
Charges related to domestic violence crimes often lead to severe consequences, especially when you face additional accusations for violating an Emergency Protective Order. After facing arrest, it may be challenging to navigate the subsequent events leading up to trial without a criminal defense attorney to support you. Partnering with a lawyer from the Orange County Criminal Defense Attorney Law Firm will give you access to the best criminal defense lawyers for your case. We strive to provide the best legal defenses and support for our clients in Orange County, California, facing charges for violation of restraining orders. To get started with us, call us today at 714-740-7848.