Emergency protective orders (EPOs) provide legal protection for people who face immediate threats. Judges or magistrates issue these orders to quickly address cases of domestic violence, stalking, harassment, or threats. EPOs prevent further harm by imposing immediate restrictions, including prohibiting contact with the victim and requiring the abuser to stay away from specific locations. Law enforcement officers can request an EPO if they believe someone is in immediate danger or if a child is at risk. Victims or their representatives can also petition the court for an EPO when urgent protection is needed.
Speak with the Pasadena Criminal Attorney if you are charged with violating an EPO. Violation of an EPO can result in serious consequences. With our help, you will better understand the legal complexity and your rights, potentially reducing the impact on your life.
How Emergency Protective Orders Work
An emergency protective order is an ex parte order, meaning a judge issues it without requiring both parties to be present. When a victim or law enforcement officer provides evidence of impending danger, the judge will usually issue an EPO based on the urgent necessity for protection. The judge imposes the order without giving you, the accused abuser, any advance notice or invitation to the hearing. The victim's immediate protection is the main objective.
When victims or police officers request an ex parte EPO, the order takes effect immediately once the judge issues it. Usually, the EPO lasts for five business days or seven calendar days, whichever occurs later. This temporary restraining order aims to shield the victim until he/she goes to court and requests a more permanent restraining order. This procedure gives the victim time to pursue a more permanent legal remedy while guaranteeing his/her immediate safety.
After the judge issues an EPO, the court sets up a follow-up hearing that both parties can attend. This hearing allows the court to consider granting a more permanent protective order to guarantee the victim's protection throughout the judicial process.
Individuals request emergency protective orders in critical circumstances involving:
- Domestic Violence
An EPO can be requested in cases of domestic abuse if the victim's spouse, partner, family member, or cohabitant poses an urgent threat to them. The EPO restricts the abuser's activity and interactions to protect the victim and ensure their safety while they seek a more permanent protective order.
- Child Abuse and Abduction
Child abuse also necessitates the issuance of EPOs. It is possible to obtain an EPO to shield a child from abuse where there is an immediate or present risk of abuse by a family member or household member. This involves protecting the child from neglect as well as abuse, which could be either physical, sexual, or emotional.
Further, child abduction presents a significant threat that an EPO can mitigate. An EPO can be issued to protect the child's safety and custody arrangements where there is a real risk that the child will be taken against their will by a parent or other family member.
- Elder Abuse
Elder abuse is yet another serious issue that EPOs deal with. Individuals can request an EPO to stop financial exploitation, physical damage, neglect, or other types of cruelty. The main objective is to provide immediate legal protection to protect the welfare of an elderly or dependent adult.
These orders offer urgent legal protection to stop additional harm and deal with the current threat.
Legal Provisions that Address Emergency Protective Orders
Emergency protective orders are anchored under the Family Code.
- Family Code Section 6320
Family Code 6320 deals with various forms of abuse. This law allows the court to declare an EPO to stop actions like battering, molestation, attacking, striking, stalking, threatening, and sexual assault. It also includes damaging personal property, harassing someone, making annoying phone calls, and disturbing the peace of the victim. This will limit your actions and interactions with the victim to protect them from immediate harm.
This section enables the court to step in swiftly and give the victim urgent protection by issuing an order that can:
- Prohibit you from getting in touch with the victim in any way
- Mandate that you maintain a predetermined distance from the victim
- Prohibit you from going to specific locations, like the victim's house, place of employment, or child’s school
- Prevent you from possessing firearms or ammunition
- Family Code Section 6321
Family Code 6321 specifically addresses exclusion orders. Under this law, the court can grant an EPO to keep you out of the other party's home, the family home, or a shared residence. Individuals seek EPOs under this law when victims of threatening behavior need to remain in their houses without worrying about the offender harming them again.
The court can issue an exclusion order if it determines that:
- The victim has a legal right to occupy the premises
- You have assaulted or threatened to assault the victim or others under their care
- The victim or others in the victim’s care might otherwise suffer physical or psychological harm.
What to Expect When Served With EPO Papers and Preparing for the Hearing
Once the hearing is scheduled, you will be served with the emergency protective order papers. Serving you with the order papers formally notifies you that you are the target of a petition. This guarantees that you are informed about the accusations and the pending legal proceedings. The documents will outline the protections sought and the details of the claims made.
Furthermore, the papers will provide the hearing's date, time, and location. This enables you to prepare for your response and attend the hearing to give your argument. Attending this hearing is crucial since it is your chance to contest the accusations and present supporting documentation. The papers will also detail the interim restrictions the EPO has imposed on you.
You should retain the services of an attorney to prepare for an emergency protective order hearing. Your lawyer will walk you through the preparation procedure and assist you in understanding the legal ramifications of the EPO. He/she will ensure you have access to all pertinent information and help you develop a compelling defense. Having legal counsel guarantees that you are well-equipped to respond to the charges made against you.
Preparing for the hearing involves gathering evidence, including witness statements and any documentation that supports your case. Your attorney will assist in this process, ensuring you have a comprehensive defense ready. The hearing is crucial because it enables you to refute the allegations against you.
The full extent of the accusations usually comes to light during the hearing. Both sides will make their submissions. The petitioner will provide details of his/her allegations and supporting evidence while you have the opportunity to respond.
Responding entails presenting your evidence and cross-examining witnesses. Use this opportunity effectively, as it is your chance to refute the allegations and demonstrate why a longer-term restraining order should not be issued.
The petitioner bears the burden of proof. He/she must provide sufficient evidence to support his/her claims for the emergency protective order to be issued and upheld.
A crucial part of the procedure is defending yourself in the hearing. Your attorney will argue on your behalf, challenging the petitioner’s evidence and highlighting any inconsistencies or lack of proof. This is your chance to tell your side of the story and ensure the court knows any pertinent details.
The hearing could have either positive or negative results, depending on the evidence each party presents. The judge will consider the arguments, testimony, and evidence to make an informed decision. Given this assessment, the judge can change, extend, or end the EPO.
The judge could extend the protection order and turn it into a longer-term restraining order if the petitioner has strong evidence to support their concerns. On the other hand, the judge could decide to end the EPO if your attorney convincingly refutes the petitioner's evidence or shows that the allegations are unsubstantiated.
Limitations of an Emergency Protective Order
An emergency protective order has certain restrictions, even if the order is consequential. An EPO, for instance, cannot assist with a divorce or end a domestic partnership. Furthermore, it cannot determine a child's parentage unless both parents agree to the court getting involved to settle the dispute.
Violation of an Emergency Protective Order
If you violate an emergency protective order issued against you, you could be charged with a crime under California Penal Code Section 273.6.
A conviction requires the prosecution to establish several essential components, namely:
- An EPO was issued against you that meets all necessary legal requirements.
- You knew about the EPO — This usually entails providing evidence that you received the order or were somehow made aware of its existence and conditions.
- You deliberately broke the provisions of the EPO — This indicates that you intentionally participated in actions that the order expressly forbade.
All these elements must be proven beyond a reasonable doubt. If the prosecution meets this burden, you will be convicted of violating the EPO.
Note:If the person designated as the protected party in an emergency protective order contacts you, the target of the order, he/she will not be prosecuted. You should document this contact, which you can use as evidence in your defense.
An EPO’s main aim is to protect the victim by limiting your contact with them. The protected person does not violate the order, even if they make the first move to contact you. You still have to comply with the Emergency Protection Order’s conditions. Keeping a record of this contact may come in handy if the court disputes the need for or scope of the protection order. This could weaken the protected person’s position and future legal proceedings.
Penalties for Violating an Emergency Protective Order
Violating an emergency protective order under Penal Code Section 273.6 is a wobbler offense. Depending on the circumstances of your case, prosecutors could charge you with a misdemeanor or a felony.
If charged as a misdemeanor:
- Up to 1 year in county jail
- $1,000 fine
- Probation instead of jail
If charged as a felony:
- Up to 3 years in state prison
- $10,000 fine
- Probation
The circumstances of your violation, your prior convictions, and whether a physical injury occurred will determine how the offense is charged and your penalties.
Defenses to Challenge the Emergency Protection Order Violation Charges
You can challenge EPO violation charges in several ways. The best defense will make a big difference in your case. Some of the common defenses used in these cases include the following:
- The Restraining Order Was Unenforceable
One of your lawyer’s defenses could be that the restraining order was unenforceable. This is crucial if procedural errors or legal flaws occurred when the order was made. For example, you may not have known about the order or its terms if it was not served properly. The order is unenforced without proper notice, so any alleged violations are invalid.
Further, your lawyer could argue that the restraining order had no legal basis or that the evidence for it was insufficient. The order could have been made without proper process, or the court may have made the order without sufficient grounds. In this case, the order is unenforceable. For example, if the court lacked enough evidence to support the order or failed to follow the necessary steps in making the order, the order’s validity can be challenged. Challenging the order’s legal and procedural foundation can significantly weaken the prosecution’s case.
Your attorney can also investigate whether the order’s terms are too broad or vague, making compliance impossible. The order could be unenforceable if its conditions are not specific enough or are ambiguous. A strong defense that highlights these weaknesses can get the charges dropped.
- You Did Not Intentionally Violate the Restraining Order
The prosecution must prove you knowingly violated the order, which your lawyer can argue against. This defense shows you your actions were unintentional and did not rise to the level of knowingly violating the conditions of the order. The prosecution has to prove beyond a reasonable doubt that you disregarded the order knowingly and intentionally. Your lawyer will poke holes in the prosecution’s case by showing your actions were accidental, coincidental, or the result of miscommunication.
This lack of intent can be a strong defense, for example, if you accidentally went into a place prohibited by the order without knowing it. Suppose you did not know the protected person was at the place you went to. In this case, your actions do not amount to a willful violation. Similarly, your conduct may not be considered deliberate disobedience of the order if you thought it had been modified or lifted. It is often the case when you get the wrong information from a reliable source.
Miscommunication or confusion about the order's details can also be a factor. If the terms were not communicated to you clearly or the order was worded ambiguously, then any alleged violation is due to confusion and not a willful act.
You can also argue that you did not intend to violate the order if the protected person contacted you first and you responded out of concern or necessity. They will highlight the events leading up to your actions to show that you did not intend to disobey the order.
- You Were Falsely Accused
Your lawyer can challenge the allegations against you by asserting that you were falsely accused of violating the order. This defense shows that the alleged violation did not occur or that the accusations are baseless.
For example, evidence that you were not at the scene of the alleged violation or witnesses who can attest to your whereabouts elsewhere can prove the violation claim is false. Moreover, your lawyer can highlight the protected person’s motive to fabricate the violation. This helps to cast doubt on the protected person’s claim. This is often the case in contentious custody or divorce cases.
Your lawyer can also challenge the evidence the prosecution presents. This can mean showing the texts or surveillance footage proving your violation was doctored or misinterpreted. Your lawyer can also use any inconsistencies in the protected person’s statements to further undermine the claim.
Note: Be careful if you have been accused of violating your emergency protective order. It is best to avoid destroying any evidence. If you do, suspicion will only grow, and you will face additional criminal charges, making your defense harder.
Further, avoid contacting witnesses or the protected person. Any contact with these people will complicate your case and create new legal hurdles. You must keep your distance and let your lawyer handle everything. In the event police officers approach you, direct them to your attorney.
Violating an Emergency Protective Order and Your Immigration Status and Gun Rights
When you violate an EPO, you could face additional consequences other than fines and imprisonment. Some of these consequences include deportation and the loss of gun rights. These consequences apply to both misdemeanor and felony violations and felony violations usually carry more severe penalties.
For non-citizens who are found guilty of EPO offenses, deportation is a given. Certain criminal convictions, especially those related to domestic violence or violating protective orders, can make a non-citizen deportable under U.S. immigration law.
Deportation will happen regardless of whether the offense is a felony or a misdemeanor. Once deported, you will be denied reentry to the country.
You can also lose your right to bear arms for violating an EPO. Under Federal law 18 U.S.C. § 922(g)(8)(9), you lose your right to own or possess a firearm after a felony conviction unless you go through a legal process to have your rights restored. Gun restrictions can also come from misdemeanor convictions, especially if domestic abuse is involved. Domestic abuse poses a considerable risk to the victim, especially when guns are involved. These restrictions seek to prevent a fatal outcome in these cases.
That is why the federal law will apply to gun rights if you are convicted, even if the offense was a misdemeanor.
Penal Code 29805 also prohibits possession of firearms after certain misdemeanor offenses. Even as a misdemeanor, violating a protection order can result in a 10-year gun prohibition. Penal Code 29800 applies if you are convicted of felony charges.
Do Emergency Protection Orders Show up in Background Checks?
There is a difference between the civil nature of EPOs and the criminal consequences of violating them. Except in cases where the EPO terms are violated, emergency protective orders are meant to provide immediate protection and do not impose criminal penalties.
EPOs do not appear in routine criminal background checks because they are civil orders. So, having an EPO issued against you will not show up to employers, landlords, or others who do these checks. However, an EPO violation resulting in a conviction will appear on your criminal record and background checks.
However, once you violate EPO, the situation changes dramatically. If you are charged and convicted, the conviction will reflect on your criminal record. Criminal convictions are included in background checks, so potential employers, landlords, and others will see this information.
You could be in big trouble if your background check shows an EPO conviction. It can prevent you from securing a job, housing, or other opportunities because it shows your disregard for court orders and legal boundaries. A conviction of this kind can mean more fines, jail time, and other legal consequences, making your life more complicated.
Find a Criminal Defense Attorney Near Me
Emergency protective orders offer immediate safety to victims in dangerous situations. You must abide by these instructions for everyone's safety and well-being. Violating an EPO could have immediate consequences, including facing criminal charges that could result in fines and imprisonment if convicted. The negative impact will equally extend to your personal and professional life.
If you face prosecution for violating an EPO, a criminal defense attorney can help. They can help you navigate the court system, explain the charges, and develop a defense strategy tailored to your situation. This strategy seeks to reduce fines or possibly have the charges dropped.
Speak with an experienced criminal defense lawyer who will fight for your rights and strive for the best result. If you are in Pasadena, call the Pasadena Criminal Attorney today at 626-689-2277.
