There are several ways in which California criminal law protects victims of domestic violence. Issuance of a protective order is one of these ways. A criminal protective order protects a victim of violence or abuse by restricting their contact with the abuser. If someone else portrays a violent behavior towards you, you should obtain a restraining order to keep yourself safe.
Sometimes, a defendant is not liable to allegations made by an alleged victim, for instance, false accusations for domestic violence. In such a case, the defendant needs a protective order attorney to defend them in the hearing. This is what we do at the San Diego Restraining Order Attorney; we represent both petitioners and defendants depending on their case.
What is a Criminal Protective Order?
A criminal protective order is an order made by a judge with the sole aim of protecting a witness or victim of a crime. The CPO will be issued for specific cases such as domestic violence. The order compels the restrained individual to stay away from the victim and sometimes cut off all communication with them. The judge will evaluate the facts of the alleged crime to determine if the protective order will be issued.
If the court believes you threaten the safety of someone else, they will serve you with a criminal protective order. To get a protective order, the prosecutor must show evidence of you hurting a person you live with, a person you are dating as well as other family members. On the other hand, if you are facing domestic violence, the court may issue an order to protect you from the defendant in your domestic violence case.
After an incident of domestic violence and issuance of the protective order, the court will be specific on actions of the abuser in that:
The user may be asked to leave the home residence shared by the couple or family
In most situations, the court will grant custody of the minor children to the victim of domestic violence. The abuser may be asked to pay child support and can be granted visitation. If a protective order is issued against your spouse, you should make sure the children are safe when visitation is allowed. Otherwise, you should notify the court.
If the matter was taken to court, the person you are restricting could be made to pay for your attorney fees.
The restrained individual can be escorted by the police away from the shared residence or place of work to avoid any contact. If you are the victim, the court may impose other protective measures they deem fit as long as you agree to them.
The following types of domestic violence can attract a Criminal Protective Order:
Physical Abuse - This involves hitting bruising, grabbing or any other activity that causes bodily injury
Sexual Abuse - This is forcing another person to participate in sexual acts.
Emotional Abuse - Emotional abuse occurs from belittling, criticism as well as trying to diminish someone’s self-esteem
Economic Abuse - This can involve making the other person entirely dependent on the abuser by withholding financial resources.
Psychological Abuse - This results from threats and humiliation of the victim.
There are two (2) major types of criminal protective orders which can be issued in San Diego: a stay away order or a no negative contact order.
A Stay Away Order
This is the most common protective order a court can issue. A stay-away order means that one must stay away from the other person until the case is ruled and after the case if there is a conviction. This order encompasses the following type of contact:
Do not have any physical contact with the other person.
You should not go within one hundred (100) feet of the protected individual.
Avoid any electronic communication, including emails, phone calls, as well as different types of social media.
If the two individuals accidentally come in contact, the restrained person is required to leave immediately.
Avoid third-party contact unless it’s an attorney of either party.
Violating a condition of the stay away protective order can bring forth a misdemeanor charge of a criminal protective order violation. If you want to get a stay-away protective order against someone, it is crucial to be represented by a competent criminal protective order attorney.
A No Negative Contact Order
This type of contact order gives a little more leniency to the individual who is restrained. Harmful contact is saying or doing things that affect the other party. Issuing threats and insult is also not acceptable when there is a criminal protective order. Violation of this type of order is detected if the police get contacted over a confrontation. However, no negative contact order is granted under unique circumstances.
The Protective Order Hearing
When law enforcers come to the scene of the crime, a temporary restraining order will be issued against the abuser. A court date will be set for you to appear before the judge. This allows you to explain your situation in the absence of the defendant. On return for the second hearing, both of you will be preset. The district attorney is required to prove that the restrained person made you feel unsafe, threatened, you, or hurt you. This will show that you need protection. The defendant is also allowed to tell their side of the story. At the end of the hearing, the court will determine if you deserve the final protective order.
If the defendant fails to appear for the hearing, the judge may choose to continue with the temporary protective order. If they do this, the police will be given the notice to pass to the defendant, asking them to show up for the hearing. Alternatively, they can enter the final order to grant you a full protective order. California treats domestic violence seriously; thus if the victim does not appear, the law enforcers will attempt to find you. If they do not get to you, the restraining order will get dismissed. Therefore, you will not get protected from your abuser.
After the hearing, the court will issue you with a copy of the protective order. It is important to seek clarification of the law and carry it with you all the time. This gives you a right to get protected by the police. The court will then notify the police of the existence of your protection order within twenty-four hours. The terms of this order will require them to protect you, your close family members, and the people you live within your home. If you accidentally lose your order, you should go back to court and obtain another copy.
Violation of a Criminal Protective Order
If the defendant does not follow the protective order terms, the victim should call the police. The restrained individual will get arrested. Under California Penal Code 166(a) (4) violating a criminal protective order is a criminal offense by itself. The violation of this order is often prosecuted as a misdemeanor, felony, or contempt of the court depending on the circumstances of each case. The prosecutor is required to prove the following to convict a defendant for violation of the protective order.
A valid criminal protective order was put in place, and the issuance of the law was done legally. The validity of the order is the main element that determines a conviction. You will not get convicted for violating an unconstitutional order. There are different reasons which could make protective order illegal. If the judge had no right to issue the order or there was no reason to seek an emergency protective order.
The defendant was aware of the existence of the protective order issued against them. The prosecutor is expected to prove your full knowledge that the order existed To get convicted for a protective order violation. Permanent restraining orders are served orally in court if the abuser is present. If they are not present, the order will be issued in writing and delivered by a third party. However, they are not required to prove that the defendant read the order.
The defendant violated the terms to the protective order intentionally. A person will willfully violate the order if their actions are intentional with the hope of gaining something or hurting the victim. However, if you had no intention to violate the order, you cannot get convicted for the offense.
The defendant’s ability to comply with the protective order to prove they are in violation. To be legally bound by a protective order, you must have the ability to adhere to that order in that it should be reasonable.
Penalties of Violating a Criminal Protective Order
Violation of a criminal protective order is a serious matter. Under California Penal Code 273.6, a misdemeanor CPO violation carries penalties of up to one (1) year in jail and fines not exceeding one thousand ($1,000) dollars. If the alleged violation resulted in injuries or the defendant is a repeat offender, the violation is charged as a felony. A felony conviction carries up to three (3) years in jail and a fine amounting to ten thousand ($10,000) dollars. Additionally, violators of a criminal protective order will be required to attend mandatory counseling and pay for all medical costs incurred by the victim. If the defendant is a holder of a firearm, the court will confiscate it and prevent future ability to acquire a new firearm.
Defenses Against Charges for Violating a Protective Order
These defenses can be used to contest the protective order violation charges:
Lack of knowledge regarding the protective order. If you were not aware of the protective order, then you cannot violate the terms willfully. For example, if the order was issued without a hearing, there is no way you would find out of its existence.
You can argue that you did not commit any crime against the alleged victim; thus, the protective order was illegally issued. If the prosecutor lacks evidence to prove without a reasonable doubt that you committed the crime, the charges against you can be dropped.
Contact was accidental. This defense is applicable if you did not intend to come in contact with the victim, and your meeting was a mere coincidence. You cannot get convicted or any unintentional actions.
Owning Guns and Other Firearms When there is a Restraining Order Against You
When the court grants a restraining order against you, you will not be allowed to possess or obtain a firearm while the restraining order is still valid. If you already own a gun, the court will instruct you to sell it to a licensed dealer or turn it to the authorities until the protective order expires. Failure to obey orders can get you charged with a crime. Violating this order could result in jail time or fine, not exceeding one thousand ($1,000) dollars. The court may set another hearing to review and determine whether you complied with the order to dispose of the firearms.
Terminating a Criminal Protective Order
You can end a criminal protective order by filing a motion or orally. However, there are several factors a court will consider before granting the termination of a criminal protective order. They include:
Whether the supervised individual accepts the responsibility for their abusive actions against the victim
Whether the restricted person is taking appropriate measures to correct their behavior, these actions include taking drugs counseling as well as parenting counseling
The outcome of the case and whether a conviction was made
The progress which the defendant has made during the probation period and the opinion of the victim to the situation change
The court will consider the living situation between the defendant and the victim before deciding to terminate the criminal protective order
The impact termination of the criminal protective order will have on the victim
Related Restraining Orders
There are other orders of protection similar to the criminal protective order, and they include
Emergency Protective Order
California Family Code Section 6250, gives the law enforcers the right to request an emergency restraining order. The EPO is issued by law enforcement when they are called at the scene of a domestic violence incident. If the officer believes that one is in danger, they will contact the judge and request the issuance of a temporary protective order. This order takes effect immediately after publication and is valid for five (5) to seven (7) days. Only law enforcers are allowed to seek such an EPO for individuals under threat. Judges are always available for twenty-four (24) hours to issue emergency protective orders upon request.
As stipulated in the Family code section 6251 of California, the following must be established before an emergency protective order is issued:
When there is sufficient evidence that a person is in danger of domestic violence
A minor is in danger of abduction or abuse
A dependent adult or an older person is not safe
The restraining order will ensure the past domestic abuse incidents do not reoccur
Workplace Violence Restraining Order
This order is initiated by a business owner for their employee who is a victim of a violent encounter at the workplace. After the incident, a temporary restraining order will be issued by the court as the hearing is getting is set. To get the full restraining order, the employer must provide clear and convincing evidence to show that the employee suffered violence. The must also show that the incident is likely to recur if nothing is done about the situation. However, only the employer is allowed to obtain the workplace violence restraining order.
Elders and Dependent Adult Restraining Order
This is the restraining order that protects individuals over the age of sixty-five (65) years residing in San Diego, CA. Adults between the age of eighteen (18) and sixty-four (64) who suffer from a mental or physical disability are also considered dependent adults. The order protects these individuals from past or ongoing abuse. The order can last up to three years. For the elders and dependent adults, abuse could be physical, mental, emotional as well as neglect and denial of proper primary care.
Civil Harassment Restraining Order
The CHRO is granted to a person who is not related to the individual they want to be restrained. To seek a CHRO against someone, you must have suffered harassment, which is defined as unlawful physical violence as well as verbal threats. If there is reasonable proof of harassment, a temporary restraining order will be issued. However, the full order will be granted after the hearing. If sufficient evidence of harassment is presented, the temporary restraining order will get converted into a complete restraining order. The validity of a civil harassment restraining order lasts for three to five (5) years.
Find a Protective Order Attorney Near Me
Getting a protective order is an effective way to protect yourself from people who threaten your safety. The CPO is specific to individual criminal cases, especially those involving domestic violence. However, if you get falsely accused, you can challenge a motion to file a protective order against you. You can contact the San Diego Restraining Order Attorney if you are in either of these situations. Our attorneys are experienced in dealing with criminal protective orders for both petitioners and defendants in San Diego and the surrounding communities. Call 619-728-6293 to talk to us today!
If you are in need of a restraining order attorney in Orange County we recommend this law firm: Orange County Domestic Violence Lawyer