Courts often issue emergency protective orders, abbreviated as EPOs, in domestic violence cases. A protective order prohibits the restrained person from coming close to the victim or visiting certain places, like the victim's workplace or school. When the judge issues a protective order against you, you will receive a notification that there is a restraining order against you. Violation of an emergency protective order is a crime under California PC 273.6. The offense has severe potential penalties, including hefty fines and serving jail time. You could also face collateral penalties, like facing challenges when seeking employment. If you face charges for violating PC 273.6, our California Criminal Lawyer Group attorneys can help you create a solid defense to fight your charges in Fresno.

Understanding An Emergency Protective Order

It is a crime under California PC 273.6 to violate a protective order. An emergency protective order is also known as an emergency or temporary restraining order. This order protects the victim against:

  • Stalking.
  • Threats of violence.
  • Physical abuse or injuries.
  • Dependent adult abuse.
  • Harassment.

An emergency protective order can also include some additional terms and conditions:

  • Stay-away – The order requires you to maintain a certain distance from the protected person or their loved ones. The order can also define the distance you should maintain from the victim's home or place of work.
  • Personal Conduct Order – A personal conduct order prohibits the restrained party from committing acts like calling, threatening, assaulting, harassing the victim, or destroying the victim's property.

A Residence Exclusion Order requires the restrained person to move out of the residence shared with the victim. It gives the victim exclusive use or possession of the residence, whether jointly owned or shared.

When The Victim Can Request For An Emergency Protective Order

A victim can request an emergency protective order if:

  • If you, as the restrained person, have abused the victim.
  • You have a close relationship with the protected person.

Under California law, you have a close relationship with the victim if you and the victim are:

  • Married.
  • Separated.
  • Divorced.
  • Dating or if you have dated in the past.
  • Domestic partners.
  • Live together.
  • Have a baby together.
  • Are family members or in-laws.

An emergency protective order offers short-term or interim protection to the victim as the victim applies for a permanent protective order. The law enforcement officers who respond to domestic violence scenes apply for emergency protective orders on behalf of the victim. An emergency restraining order is valid for seven days from the issue date. After this period, a permanent protective order replaces the emergency protective order.

Serving An Emergency Protective Order

Upon granting an emergency protective order, the judge also schedules a hearing. After setting the hearing date, the defendant receives the protective order documents. The purpose of serving the respondent with the protective order documents is to inform them that a petition has been filed against them. The restraining order documents will outline the following information:

  • The time and date for the protective order hearing.
  • The action required or the conditions that the respondent must comply with.
  • The documents that the protective order petitioner supplied the court with to support the issuance of the emergency protective order.

When you receive the EPO notice, you will have up to twenty days to respond to the victim’s statement, usually before the hearing date. A law enforcement officer or a process server can deliver the emergency protective order notice to you.

What Is Included In An Emergency Protective Order?

When the court issues an emergency protective order, the order must contain certain aspects to be viable and enforceable. An emergency protective order should:

  • Include a statement highlighting the elements that the order will assert.
  • The time and date when the protective order will expire.
  • The address of the superior court where the protected person resides.
  • A statement printed in Spanish or English.

The statement included should provide the following information:

For the person seeking protection, the statement should outline that the protective order will be valid until the date and time stated in the order. If the protected person intends to continue being protected, he/she must apply for a permanent protective order from the court stated in the order.

To the restrained party, the statement outlines that the protective order will be valid until the date and time outlined in the order. However, the protected person can seek a permanent restraining order from the court. With the help of an attorney, the restrained person can respond to the restraining order.

If the protected person is a child, the statement will have different terms than if the protected person is a cohabitant or a spouse. If the order protects a child who is in danger, the statement will outline the following in English and Spanish:

  • The order will last until the date and time outlined in the order. The person seeking the protective order on the child's behalf can apply for child custody from the court.

Contesting A Protective Order In Court

You can file a petition in court to have an emergency protective order removed or its terms modified. For example, you can request that the terms of contact, communication, or distance you should maintain with the protected person be modified. If you want to terminate or have an EPO modified, you should file a petition in court before the date outlined in the EPO expires. Sometimes, you have to pay a filing fee for this motion. You should confirm with the relevant court about the amount required. You also have to inform the court that you would like to contest the motion so that the court can set a hearing date. Since emergency protective orders last seven days, you should file the motion to challenge a protective order before the seven days pass.

The court can request specific information and documents to determine whether to modify the terms of the protective order. The evidence that the court will consider includes:

  • Documents like a certificate of completion of a rehabilitation program, especially if the order was sought due to anger management issues.
  • Your pay stubs.
  • Statements given by other people, including oral testimonies and written affidavits from parties who feel that the EPO was wrongly issued.
  • Evidence related to child custody and child visitation, if it applies to your case.

When seeking removal or modification of an emergency protective order, you must provide proof of good conduct to support the evidence you present in court. This includes evidence of compliance with the current terms of the protective order or evidence that a protective order is not necessary.

If the judge rules in your favor and decides to terminate the protective orders, you will fill out parts 1 and 2 of Form DV-400, make three copies, and submit the forms to the court clerk. If the court clerk offers to prepare the form on your behalf, you must examine it properly to ensure that it is in line with the orders from the judge. When the judge signs the new order, the clerk retains the original copy and gives you the stamped copies.

When You Violate An Emergency Protective Order

Before the court convicts you of violating PC 273.6, the prosecutor must prove these elements:

  • The judge issued an emergency protective order against you.
  • You were aware of the protective order.
  • You were capable of complying with the emergency protective order.
  • You intentionally violated the emergency protective order.

Under PC 273.6, knowledge means that you knew an emergency protective order existed. It means you received a notice and had an opportunity to peruse the EPO documents, even if you did not read them.

Acting intentionally means that you violated the emergency protective order on purpose or knowingly.

You could face charges under PC 273.6 and an additional statute if you commit another offense when violating a temporary restraining order.

Whether The Protected Person Can Violate An Emergency Protective Order

The protected person (victim) cannot violate an emergency protective order. For example, the court will not deem the victim to have violated the law if the victim contacts the restrained person. However, the restrained person can face criminal charges for contacting the victim. However, it is rare for the victim to contact you when a protective order is in place. If the victim contacts you, you can use this fact as evidence in court to show that the victim does not fear you or that you are not a threat to the victim. If you convince the court that you are not a threat to the victim, a protective order will no longer be necessary.

The Penalties Of Violating An Emergency Protective Order

Violation of an emergency protective order is a misdemeanor offense under California law. The offense is punishable by the following penalties:

  • A jail time not exceeding one year.
  • A fine of not more than $ 1,000.

Violation of a protective order becomes a wobbler offense if:

  • You have a previous conviction of violating a protective order.
  • The violation of the emergency protective order involved violence.

A wobbler offense is chargeable as a misdemeanor or felony, depending on your criminal record and the unique facts of your case. If the court convicts you of a felony violation of a temporary restraining order, you will face the following penalties:

  • A fine of up to $10,000.
  • An imprisonment of three years in a state prison.

The violation of an emergency protective order does not have negative immigration consequences. However, violating an emergency protective order could affect your gun rights if the court convicts you of a felony. Under California law, convicted felons are not allowed to own or possess firearms.

Whether An Emergency Protective Order Will Appear On Your Background Check

You could be wondering whether an emergency protective order appears on your background check. Since a protective order is a civil issue, it will not appear in your background check. However, if you violate an emergency protective order, you will have committed a crime, and this violation will appear on your background check. If your background check indicates that you have a criminal history, even without conviction, it could:

  • Affect your earning potential or reduce your likelihood of securing employment.
  • This leads to more detrimental consequences if you face charges for a subsequent offense.
  • Make it hard for you to secure state licensing.
  • Make it challenging to access education opportunities or housing.

How to Fight Violation of Protective Order Charges

You can face severe consequences for violating an emergency protective order. However, your attorney can put up several defenses on your behalf to help you fight the charges. Your attorney will consider the circumstances of your case and examine the evidence against you to help you create the best defense. The typical defenses that you can use to fight your charges include the following:

You Did Not Know About The Emergency Protective Order

One element that the prosecutor must prove for you to face charges for violating an emergency protective order is that you knew about the protective order. Therefore, if the process server or the law enforcement officers did not serve you with the protective order documents, you can point out that you did not know the protective order existed. You can also state that you violated the protective order before being served.

The Violation Of The Protective Order Was Not Intentional

You must have acted intentionally or on purpose to violate a temporary restraining order for the charges to apply. You can fight your charges by pointing out that you did not act intentionally, even if you violated the EPO. You could have committed the offense accidentally. Perhaps the court has instructed you not to go close to the victim. However, you only attend a local entertainment function to meet the victim. In this case, you can state that even if you came close to the victim, it was not intentional because you did not know that the victim would attend the same function as you.

Provided you do your best to stay away from the victim and avoid confrontation, you cannot face charges for violating a restraining order.

The Emergency Protective Order Was Illegal

You can only face charges for violating a lawful, court-issued emergency protective order. You cannot face charges if the protective order is unlawful. An emergency protective order is illegal if:

  • The judge did not have a sound basis for issuing the protective order.
  • At the time of violation, the protective order had.

You Were Falsely Accused

Another person can falsely accuse you of violating a protective order under PC 273.6. When your marriage or relationship fails, your partner can have ill motives towards you. Most people accuse others falsely out of anger, jealousy, or vengeance.

Whether You Can Post Bail Following An Arrest For Violating A Protective Order

After an arrest for violating an emergency protective order, you can post bail to secure your release from custody as you await the court hearing. When you post bail, the court will hold the bail amount and return it to you when the case is resolved. Different counties in California have bail schedules that outline the bail amount for every crime. The bail amount for violating an emergency protective order starts at $15,000. The applicable bail amount will depend on several factors, including:

  • The alleged victim — The judge will likely set a high bail if you injure another when violating the emergency protective order. The judge can even deny you bail and keep you in custody to protect the victim. The court will also impose a high bail if the case involves children.
  • A flight risk — The judge will also determine whether you are a flight risk when setting the bail amount. If you are likely to evade the law enforcement officers or free the jurisdiction, the judge will likely set a higher bail amount.

You should speak to a bail bondsman if you cannot raise the applicable bail amount in cash. A bondsman can post the bail amount on your behalf in exchange for a premium, usually 10% of the bail amount.

What You Should Do If You Are Falsely Accused Of Violating A Protective Order

The victim can falsely accuse you of violating an emergency protective order. The victim can lie to the law enforcement officers that you have violated a protective order to give them an upper hand in child custody battles. Other common reasons for false accusations include malice, anger, or vengeance.

What should you do when the victim falsely accuses you of violating a protective order?

Your first inclination will be towards clearing your name. However, you should avoid doing anything that further incriminates you. Here are the steps you should take:

Seek Legal Counsel

When falsely accused of violating an emergency protective order, you should remain silent and contact an experienced attorney. It is crucial to involve an attorney if the case involves:

  • False or misleading evidence.
  • Interactions with the prosecutor.
  • Accepting a guilty plea for a lesser offense.
  • Hostile accusers or witnesses.

An attorney will advise you on the best steps to take.

Pre-file Investigations

When conducting pre-file investigations, your attorneys investigate the allegations brought against you by the prosecutor. The investigations help your attorney gather favorable evidence for you. During the pre-trial investigation phase, your attorney can:

  • Interview the witnesses presented by the prosecutor.
  • Conduct the relevant background checks.
  • Find new witnesses.
  • Gather evidence and information regarding the alleged victim, especially their character and credibility.
  • Gather documents and records related to the offense, including GPS, phone, and computer records.

Impeach The Accuser

The process of impeaching the accuser entails providing evidence to undermine the accuser's credibility. This process will mainly happen during the cross-examination during the trial. The defense attorney will interrogate the witnesses to determine whether they understand the accuser's character and reputation.

What You Should Not Do When Arrested For Violating A Protective Order

Here is what you should not do when the police arrest you for violating an emergency protective order:

Resisting The Arrest

It is best to avoid resisting an arrest or fleeing from law enforcement officers during an arrest. Trying to resist an arrest could lead to injuries since the police can opt to use force to restrain you. You could also face additional charges for resisting an arrest.

Failing To Contact An Attorney

You should not make the mistake of failing to contact an experienced attorney after an arrest for violating a protective order. You should never try to negotiate with the prosecutor alone, because you will probably lose the case. Here is how an attorney can help:

  • Investigate your case.
  • Guide you through the legal defense process.
  • Negotiate with the prosecutor on your behalf.
  • Present defense in court on your behalf.

Lying Or Concealing Information From Your Attorney

If you conceal or withhold information from your attorney, you limit their ability to represent you effectively. Your attorney will build their defense around the information you present. When you cooperate with your attorney, you can create a solid defense to challenge the prosecutor's evidence. You should also avoid giving false details to your attorney. If you provide incorrect details and the court later discovers the information is inaccurate, your case could worsen. If the judge finds that the information presented during your trial is false, the judge could assume that the defense attorney is questionable, which could lead to subsequent perjury charges.

Taking The Criminal Charges Lightly

Violation of an emergency protective order is a severe offense under California law. The offense can be charged as a misdemeanor or a wobbler. Ignoring the violation of a protection order charge or taking the charges lightly could lead to detrimental consequences.

Find a Criminal Defense Attorney Near Me

Having an emergency protective order issued against you comes with many limitations. The best way to respond to a protective order is by hiring an experienced attorney to help you challenge the protective order. At the California Criminal Lawyer Group, we have experienced attorneys who can help you create a solid defense in Fresno. Contact us at 559-712-8377 to speak to one of our attorneys.