An emergency protective order is a court order issued against an individual facing charges for domestic violence or other violent crimes. The EPO is a way to tell the accused to stay away from the victim or witness and not to contact or harm them. Also, the order allows the victim to avoid court visits during the hearing. An individual can obtain an emergency protective order against you if you are facing charges for stalking, battery as well as attempted murder. If you violate the terms of a protective order, you will get arrested and charged Under Penal Code 273.6 of California. Facing charges for violation of a restraining order in addition to the crime for which the order got obtained could be devastating. Therefore, it is crucial to seek guidance from a Los Angeles Criminal Attorney.
Overview of Emergency Protective Orders
If you are arrested and charged with a violent crime, mainly domestic offenses, the victim is likely to obtain an emergency protective order against you. A law enforcement order upon assessing the situation and being aware of the danger you pose to a victim, they will request the restraining order. When the victims' request is accepted, a defendant will be notified of the order in writing to ensure they follow all the set terms.
A protective order is a document that lets you know that you need to stay away from alleged victims or witnesses of a crime for which you got charged. An emergency protective order also allows the victims to stay away from criminal court case hearings. Unlike other forms of restraining rules, an emergency protective order starts to work as soon as it is approved and is often a way to prevent recurring or already existing violence or abuse.
An emergency protective order is likely to be issued against you if you pose the danger of the following to another person:
- Physical abuse - Physical abuse is any act that causes bodily injury to another person. In most cases, individuals who are at a higher risk of physical violence include children, the elderly, and disabled persons in the society. If you are charged with an offense of physical abuse, a victim is likely to obtain a protective order against you.
- Making criminal threats – You do not need to have caused actual harm for a protective order to be issued against you. If you threatened to harm an individual or a member of their immediate family, you would not be allowed to contact or come near them. When a protective order is issued against you, your reputation is likely to be affected.
- Sexual abuse – Sexual abuse cases will include rape, sexual battery, or y other sexual offense on an individual. Often, this offense is committed to family members or dependents. An emergency protective order, in this case, is aimed at protecting vulnerable individuals from recurrent instances of sexual abuse.
- Stalking is the act of harassing another person in a way that instills fear in them. Even though the act of stalking does not cause physical harm, it could be a result of psychological distress and anxiety. If you get served with a restraining order for stalking, you need to stay away from the alleged victim.
The court or commissioner issues the emergency restraining order under the following circumstances:
- There is enough evidence to show that there was a present danger of violence or harm to the victim
- When a senior citizen who is dependent on others is in imminent danger of abuse
- When the EPO will protect a victim from potential violence or abduction
- The emergency restraining order can prevent a recurrence of abuse on an elderly person or a child in a particular household
The duration for which an emergency protective order lasts will depend on the circumstances and type of danger posed on the alleged victim. However, if you have displayed a deadly weapon and threatened to harm another person, the restraining order against you will last a minimum of sixty-one days. When issuing the order, the judge considers the following factors:
- The relationship between a defendant and the alleged victim
- The extent and seriousness of the danger posed to the alleged victim
- The presence of other restraining orders against the defendant affects the courts' decision to issue protection
- The criminal history of the defendant, including the offenses for which the restraining order is issued
If an individual obtains an emergency protective order against you, you are prohibited from having any form of communication with the victim and their close family members. Also, it will be a criminal offense to contact, threaten, or commit an act of violence against them. If you violate any term of the restraining order issued against you, you will face criminal charges under California Penal Code 273.6. As a result of the collateral consequences that accompany an illegal protective order issued against you, you will require competent legal guidance.
Violation of an Emergency Protective Order
Penal Code 273.6 of California makes it an offense for someone to contact someone who has a protective order against you. Before you get convicted for violating a protective order, the prosecutor needs to prove elements of the crime:
- You received an emergency protective order against you from the court. During the trial, the prosecutor is required to show that the protective order issued against you was legal and from the court. Also, the document must have been valid at the time you allegedly violated the terms.
- You were well aware of the court order. Sometimes, a person may seek an emergency protective order against you without your knowledge. This often occurs when you did not get served with the order. For you to get convicted under California Penal Code 273.6, it must be clear that you were aware of the restraining order. A protective order is often in writing and cannot be communicated by word of mouth, and you cannot violate something you know nothing about.
- You were in a position to follow all the terms of the protective order. When charging you with violating a protective order, the prosecutor is required to prove that under all circumstances, you were in a position to adhere to the order rules. Sometimes keeping a certain distance with an alleged victim could be difficult if you live around the same area and could meet in unexpected places.
- You intentionally violated the terms of the order. When a protective order is issued, you are required to stay away from the individual who requested the order. Also, you should avoid any communication or contact with them. When the evidence in the violation case is brought against you, it should be clear that you intentionally violated the order by creating contact with the individual. If your meeting or communication was by chance, you could not get convicted for the offense.
In California, if you commit another offense in the process of violating a protective order, you will be charged under penal Code 273.6, as well as the statute governing the offense you committed. Proving all the elements of the crime, especially your intent to violate the order, could be difficult for the prosecutor. With the help of a criminal defense attorney, you can fight the charges brought against you.
Legal Penalties for Violating an Emergency Protective Order
In California, violating a protective order is an offense. You break a protective order obtained against you by initiating contact with an alleged victim or trying to harm or threaten them. California Penal Code 273.6 can be charged as a misdemeanor or a felony, depending on your criminal history and individual circumstances of your case. Often, the offense will get charged as a misdemeanor, and it is considered a wobbler when you commit a violent act when violating the order. Also, individuals who have a prior conviction for the same offense may face felony charges.
When charged as a misdemeanor, you will face the following legal consequences:
- Up to $1,000 in fines
- A jail sentence of one year
- Misdemeanor probation
On the other hand, a felony conviction will result in:
- A maximum of three years in state prison
- Fines not exceeding $10,000
Since a violation of a restraining order often gets charged as a misdemeanor, getting convicted for this offense does not impact your immigration status. However, in cases where you get a felony conviction, you may risk deportation or be marked as objectionable.
Defenses against Penal Code 273.6
An arrest and conviction for a protective order violation trigger some legal penalties. However, if you are facing these charges, you will not necessarily face a sentence. A competent criminal defense attorney, you can present the following defenses for your case:
Claim that the Order was not Lawful
The presence of a lawful order from the court is an essential element that a prosecutor needs to prove before a conviction is made. If you can clearly show that the order which you allegedly violated was not lawful, you cannot get convicted for the offense. There are several ways in which an order could be unlawful when there was no valid reason for the order to be issued, and you can claim that the order wasn't lawful.
You Lacked Knowledge that the Emergency Protective Order Existed
You are not in any way capable of violating an order you did not know about. Sometimes a protective order is issued against you, but you fail to be notified. This can happen when the restraining order document is sent to the wrong address, but it does not reach. When proving your guilt in the case, the prosecutor may be required to prove that you received the order and were aware of the terms.
With the help of your attorney, you can argue that you did not know that the protective order existed. Using this defense will allow you to fight the charges brought against you and evade the legal penalties.
Argue that You did not Have an Intention to Violate the Restricting Order
Even when you were aware of the protective order issued against you, you cannot get convicted for violating a law if you lacked an intention to do so. A protective order issued against you requires you to maintain distance between you and the alleged. Also, you should avoid making communications with them. Sometimes you may come in contact with the victim unintentionally without a plan of harming or threatening them. If this is the case, you can argue your lack of intent to commit the offense.
Emergency protective orders are often issued in cases of domestic violence. Sometimes the situations end in conflict and can compel the alleged victim to lie about the defendant contacting them. For violation of protective order cases, claiming false accusations is a valid defense. If there is no sufficient evidence to show that you violated the terms by contacting or causing harm to the victim, your charges could be dismissed.
Offenses Related to Violation of a Protective Order
Some of the criminal offenses that are related to protective order violation include:
Contempt of Court
In California, contempt of court is acting in a way that disregards the court process and is charged under Penal Code 166. You are considered to be disobeying the court if:
- You decline to be used as a witness.
- While serving as a witness, you fail to answer the questions.
- Giving false information regarding court proceedings
- You violate an order from the court, including emergency protection, temporary and permanent restriction orders.
A prosecutor is required to prove that you were given a legal order which you wilfully disobey before you get convicted for contempt of court. Penal Code 166 is charged as a misdemeanor and attracts a six months jail sentence and fines not exceeding $1,000.
California Penal Code 368 – Elder Abuse
Elder abuse is an offense that is directed to an individual exceeding the age of sixty-five years. In most cases, elder abuse takes place at home or in nursing homes, and it comes to inform of:
- Sexual abuse
- Physical abuse
- Financial exploitation
Elder abuse is one of the circumstances that prompt the issuance of an emergency protective order. The following are elements of a crime necessary to prove your guilt in this offense:
- You willfully put an elder through mental or physical pain
- Your action puts the life or health of the elderly person in danger
- At the time of committing the crime, you knew that the victim was above the age of sixty-five years
Penal Code 368 of California is a wobbler which can get charged as a felony or misdemeanor. If you caused severe bodily injury to the victim, you would face felony charges. If you are facing charges for elder abuse, it would be wise to enlist competent legal guidance.
Expunging your Conviction Record
If you get convicted Under Penal Code 273.6, you are eligible to expunge your criminal record. An expungement of your files allows you to overturn the guilty or no contest verdict. If a person obtains a protection order against you, it is likely to ruin your history. When you have granted an expungement, the negative consequences that accompany a conviction will be eliminated.
You qualify to relieve your records if you successfully serve your probation by following all terms. Also, you should not have served a prison sentence. During the period of applying for the expungement, you need not be facing charges for any other criminal offense. If you violated the terms of probation, your attorney could request a special hearing, which gives you an opportunity for the relief.
Before your criminal record gets expunged, the following process will be followed:
- Your case will be examined to certify your eligibility for the relief.
- The attorney will carry out some legal research on the law regarding the offense you committed.
- Appropriate paperwork will get filed out
- An expungement hearing will be held in court
When you receive relief for your criminal record, an employer will not use it against you during a job application. Also, an expunged record does not deter you from obtaining a professional license in California. When a conviction for violating a protective order is lingering in your record, you can reduce its impact by applying for relief.
Find a Criminal Defense Attorney Near Me
The court has the authority to issue an emergency protective order against you if you are facing charges for physical or sexual abuse, harassment, and stalking. If you are subject to a restraining order, it is essential to understand that the order is a serious issue which you need to deal with. Also, it is your right to be notified of the order so you can adhere to it accordingly. You are at risk of facing criminal charges in the case where you violate any term of the protective order by initiating contact with the victim. Should you find yourself battling charges for violating the protective order, you will require legal advice. If you are in Los Angeles, CA, we invite you to contact the Los Angeles Criminal Attorney at 424-333-0943 today.