Your spouse or domestic partner can obtain an emergency protective order (EPO) against you. This order will bar you from communicating with them.
An emergency protective order is also referred to as a temporary restraining order (TRO) or a stay-away order. If you violate the terms of the order, you may find yourself facing criminal charges. An emergency protective order can be obtained either before or after the Los Angeles Department of Prosecution files criminal charges against you for domestic violence.
We at The LA Criminal Defense Law Firm have extensive experience in helping defendants remove the temporary restraining orders issued against them, as well as fight the underlying domestic violence charges. Get in touch with us if you or your loved one has been issued an emergency protective order or is facing a domestic violence criminal charge. We will help you build a robust defense strategy. In this article, we will explain to you all you need to know about emergency protective orders.
What is an Emergency Protective Order?
An emergency protective order is a court order whose primary purpose is to protect an individual from harassment, abuse, stalking, or threats. Some individuals commonly refer to it as a ‘temporary restraining order’ or a ‘stay-away order.’ To get an EPO, the alleged victim does not need to prove that he/she suffered physical harm.
Typically, emergency protective orders are issued in cases involving domestic violence, such as:
- PC 273. 5 – Corporal injury to an inhabitant or spouse
- PC 646.9 – Stalking
- PC 243(e)(1) – Domestic battery
- PC 422 – Criminal threats
- PC 273(d) – Child abuse
- PC 368 – Elder abuse
- PC 273(a) – Child endangerment
In most cases, the alleged victim can obtain an EPO even before you’ve been arrested for the offense. Sometimes, the judge may issue an emergency protective order after the prosecutor has filed criminal charges against you.
An emergency protective order lasts for 5 – 7 days. As the restrained person, you can apply for it to be lifted at any time.
If an emergency protective order is issued against you, you will have to abide by it fully. If you don't, you may face criminal charges for violating the terms of the order, under California Penal Code 273.6. The judge may also issue other additional conditions, which you will be expected to follow. Some of these conditions may include:
- Avoid making phone calls to the protected person
- Keeping a certain distance away from the protected person or his/her home or work or any other specified place
- Moving out from where the protected person lives
Who Can Obtain an Emergency Protective Order?
Typically, it is your spouse or domestic partner who would want to obtain an emergency protective order against you. However, any person can obtain a TRO against you as long as he/she proves:
- You abused him/her
- You have a close relationship with him/her
Besides your spouse or domestic partner, any person whom you've ever had an intimate relationship with can obtain a stay-away order against you, as long as he/she proves that you are subjecting him/her to abuse. Also, suppose you are the caregiver of an elderly person. In that case, he/she can obtain a TRO against you if there is evidence showing that you subjected him/her to physical injury, neglect, or abuse. Moreover, if you are co-parenting with your ex, he/she can obtain an EPO against you, alleging that you are subjecting your child to harm, abuse, neglect, torture, or injury.
How is an Emergency Protective Order Obtained?
The primary purpose of an EPO is to provide immediate protection to the alleged victim. It is easy for the alleged victim to obtain an emergency protective order. All he/she needs to do is call the police and inform them that you are subjecting him/her to abuse. If the police believe him/her, they will issue the emergency protective order.
Alternatively, the alleged victim or his/her attorney can go to the courthouse and fill in an application form for a restraining order. This form will require him/her to explain why he/she would like to obtain an EPO. After filling in the form, the victim will file it with the court clerk and pay a filing fee. The judge will review the form and then decide whether or not to issue an EPO.
After the EPO has been issued, you may be arrested for domestic violence. If this happens, you’d have to post bail before being released. Moreover, the California Department of Prosecution may file criminal charges against you.
Sometimes, the judge may issue an EPO after you’ve been arrested for domestic violence. The victim or the prosecution may convince him/her to issue the EPO during the arraignment.
How Long Does an Emergency Protective Order Last?
Typically, an emergency protective order lasts for 5 – 7 days. Remember, its primary goal is to provide immediate protection to the alleged victim. Therefore, you should expect to be arrested for domestic violence even before the order lapses.
After you’ve been arrested, you will be taken to the police station where you will be booked. To be released, you’d have to post bail.
If you are released on bail, you may be tempted to get back at the victim to punish him/her for reporting you to the authorities. We strongly recommend you to refrain from revenging against the alleged victim because it will land you in more trouble with the law enforcement.
The first hearing of the California criminal trial process is known as the 'arraignment.' During this hearing, your charges will be read out to you, and you will be asked to take a plea. It is at this hearing when the victim can request the judge to extend the EPO.
As long as the victim proves that he/she still feels threatened, the judge will extend the EPO for several days or a couple of months. In some cases, the judge may extend the EPO for up to five years.
What Happens if I Violate an Emergency Protective Order?
According to PC 273.6, violation of an emergency protective order is a criminal offense. If an EPO has been issued against you, you should not violate it in any manner whatsoever, or you may find yourself facing additional criminal charges, besides the underlying domestic violence charge.
Do not make the mistake of attempting to contact or meet the protected person, even if he/she consents to it. Sometimes, the protected person might consent to you visiting or contacting him/her, and later change his/her mind and report you to the law enforcement for violating the EPO. Note that the court will hold you to have violated the EPO if you make any attempts to indirectly contact the protected person, for example, getting in touch with his/her friends or family members.
If your spouse or domestic partner you live with obtains an EPO against you, one of you would have to move out. If you decide to move out, don't return to the house you’ve been sharing, even if you forgot some of your belongings. If you do so, you will be held to have violated the EPO.
Violation of an EPO is a misdemeanor. If you violate an EPO, you will be put under arrest, and the prosecutor will charge you under PC 273.6.
To be held guilty of violating an EPO, the prosecutor must prove that:
- You knew of the EPO
- You could obey it
- You willfully violated it
The punishment for violating an EPO is a county jail term of up to one year and a fine not exceeding $1,000. Sometimes, the prosecutor may charge you with this offense as a felony, especially if you have two or more prior convictions for violating an EPO and if it involved a violent act. The penalty for felony violating an EPO is a state prison sentence of up to three years and a fine not exceeding $10,000. Note that if you’ve also been convicted of domestic violence, you will face these penalties in addition to the punishment imposed for it.
How Can I Get Back My Property?
Remember, once the protected person obtains an EPO, you cannot get close to him/her. If you do so, you will face criminal charges.
However, the protected person may have remained with some of your property. If this is the case, you would want to get it back. If you are in this situation, do not make the mistake of attempting to visit or contact the protected person without consulting an attorney.
One way you can use to get back your property is to obtain a civil standby order. Simply call the law enforcement, and explain to them your situation. Then, one of them will accompany you to the protected person’s house, and you will be able to get back your property.
Please do not attempt to enter into an altercation with the protected person while you are at his/her residence. The protected person might dispute that you do not own the item you wanted to take. Note that the police officer who will accompany you doesn't have any power to solve disputes regarding who owns what. In this situation, you'd have to institute a civil lawsuit to determine the rightful owner.
We strongly recommend against getting back your property by yourself, even with the help of a civil standby order. Many things can go wrong once you get in touch with the protected person. For instance, you may unknowingly threaten him/her, and this may result in criminal charges. What you need to do is to wait for the EPO to lapse, and then, you’d be able to get back your property.
Alternatively, you can appoint an attorney and have his/her investigator get in touch with the victim to arrange how you can get back your property. This way, you will not have to meet with the victim personally, and he/she will not have any basis to claim that you violated the restraining order.
Can I Possess a Firearm?
When issuing the EPO, the judge may prohibit you from possessing or owning a firearm. If you attempt to acquire, own, or possess a gun when the EPO is still in effect, you may face criminal charges under California Penal Code 29825.
Note that you can still be charged under PC 29825, even if the firearm involved doesn't work. You will also face criminal charges if you failed to give up your gun to the authorities.
For the jury to convict you under PC 29825, the prosecutor must prove that:
- You owned, possessed, received, or purchased a firearm
- You knew that you owned, possessed, received, or purchased a firearm
- You knew that the EPO prohibited you from owning, possessing, receiving, or purchasing a firearm
In most cases, a violation of PC 29825 is charged as a misdemeanor. Upon conviction, you will face a county jail term of up to one year. Sometimes, the prosecutor may charge it as a felony. The punishment for felony PC 29825 is a state prison sentence of a maximum of three years. Moreover, if you are a non-US citizen, a conviction under PC 29825 can make you be deported or become marked as inadmissible.
Can the Protected Person Lift the EPO?
No, the protected person cannot lift the EPO. The EPO will remain in force until the court lifts it. It is only the judge who has the power to lift the restraining order.
Therefore, it is useless to contact the protected person to persuade him/her to change his/her mind about avoiding you. If you do so, you would have violated the EPO, and you may find yourself facing additional criminal charges.
Moreover, the protected person may abuse the EPO and attempt to contact you. He/she will not face any adverse legal consequences by trying to get in touch with you. However, if he/she changes his/her mind and reports you to the authorities, you may be charged under PC 273.6.
Can I Contact the Protected Person when the EPO Lapses?
Yes, you can freely contact the protected person when the EPO lapses. But, be careful not to avenge him/her or enter into a fight or an altercation with him/her. As a general rule, please do not contact the protected person to castigate or inflict violence on him/her. If you do so, you may face criminal charges for assault.
Moreover, you should only contact the protected person after you’ve received his/her consent. In California, making unwanted contact with a person is a criminal offense, commonly referred to as stalking.
No matter how pure your intentions are, please do not attempt to get in touch with the protected person without his/her consent. Also, don't send voice mail messages, car notes, letters, emails, and floral bouquets without first receiving his/her permission. The prosecutor can use all of them as evidence during the criminal trial hearing for stalking.
How to Lift an Emergency Protective Order
Remember, an emergency protective order lasts for 5 – 7 days. However, the protected person can convince the judge to extend this period. If this happens, the EPO may last for up to five years.
While the EPO remains in force, the protected person may change his/her mind about avoiding you. As a result, he/she can apply to the judge for lifting the EPO. In most cases, the judge will automatically lift the EPO if the protected person asks for it. But, the judge will require him/her to testify under oath that you no longer make him/her feel threatened. The victim will also have to promise the court that he/she will contact the police should you subject him/her to violence or abuse.
You can also apply for the EPO to be lifted. However, you will be required to satisfy the court that you will never subject the protected person to abuse or violence.
It is much easier for the victim to have the EPO lifted than to do it yourself. Sometimes, you may mend your relationship with the protected person. For instance, if you were dating him/her, both of you would probably want to revive the relationship. In this situation, it would be best if the protected person applied for the EPO to be lifted by himself/herself.
Otherwise, it can be difficult for the restrained person to have the EPO lifted. Typically, the court will impose numerous conditions, which you will be expected to follow. For example, you may be ordered to enroll in a domestic violence batterers’ rehabilitation program and attend a specific number of meetings as well as obtain good progress reports before the judge lifts the EPO. Or, you may be placed under probation, where you will be expected to attend frequent domestic violence counseling sessions, and your counselor will make periodic reports about your progress to the judge.
Fighting Criminal Charges for Violating an EPO
The most common legal defenses that you can use to fight a criminal charge for violating an EPO include:
- You did not violate it willfully
- It is unlawful
- You did not know about it
Sometimes, the police or the judge may issue an EPO without any legal basis. For instance, maybe the victim bribed the police officer to issue the EPO. In this situation, you can argue that the restraining order was unlawful.
For you to be convicted under PC 273.6, the prosecutor must prove that you willfully violated the restraining order. Therefore, you have a good defense if you show the court that you violated the EPO accidentally.
You must also have known of the EPO to be guilty under PC 273.6. This means that you can defend yourself by arguing that you didn't know about it.
Fighting the Underlying Domestic Violence Charge
Remember, the judge can issue the EPO before and after the prosecution has filed criminal charges against you. The prosecutor can only institute criminal charges against you if he/she is satisfied that there is enough evidence to convict you. Note that the standard of proof in California criminal cases is beyond a reasonable doubt.
If the EPO has been issued before the prosecutor has filed domestic violence charges against you, you can stop him/her from filing the charges altogether. What you need to do is to get in touch with an experienced criminal defense attorney who will advise you on the best steps to take.
The prosecutor will not file criminal charges against you if there isn’t enough evidence to show that you committed an act of domestic violence. When you contact an attorney, he/she may get in touch with the prosecutor and convince him/her that you are innocent. Your attorney might also hire a private investigator, whose primary role would be to acquire evidence showing that you are innocent.
Suppose the prosecutor has already filed a domestic violence charge against you. In that case, you should focus on building a robust defense strategy so that the jury can acquit you or the judge dismisses your case. Some of the best legal defenses to domestic violence charges include:
- Self-defense or defense of others – You can argue that the alleged victim was acting violently, and you were only defending yourself or your loved ones from imminent danger.
- No intent – You can convince the jury that you did not have any intention to injure the victim.
- You did not cause the injuries – You can demonstrate that the injuries occurred due to another reason, for instance, an accident.
- False accusation – You can argue that the alleged victim is accusing you falsely, simply due to jealousy or anger, or to gain the upper hand in child custody or divorce proceedings.
There are different types of domestic violence charges. Some are categorized as misdemeanors, while others are deemed to be felonies.
Regardless of the type of charge, most California courts impose a mandatory 30-day minimum jail sentence upon conviction. The judge can increase this imprisonment period, depending on the magnitude of the offense. Besides imprisonment, you may be ordered to pay a hefty fine, be placed on probation, restitute the victim, and enroll in a batterers' counseling program. You will also obtain a permanent criminal record and lose your rights to custody over your children.
Find an Experienced Los Angeles Criminal Defense Lawyer Near Me
Get in touch with us at The LA Criminal Defense Law Firm for professional legal help if you are facing domestic violence charges or you've been issued an emergency protective order. Call us at 310-935-1675 to speak to one of our attorneys today.