Receiving an emergency protection order that bars you from coming into close contact with someone else can be unexpected, especially if it is from a close loved one. Despite this, you must understand what an emergency protective order entails, the restrictions imposed, and how to avoid violating it.
If you are new to legal restrictions, you want to work closely with a criminal defense lawyer with experience handling similar cases. Their professional input can help you establish important factors like the applicability duration and the effects of contravening it. If you strongly believe that the order was issued against you unfairly, you can also seek legal advice to counter the order.
At Darwish Law, you will receive reliable legal services to help you navigate an emergency protective order. Your assigned attorney is ready to guide you on what to do after receiving the order and any steps necessary if you intend to challenge it. Our team is available for anyone seeking guidance on an emergency protective order in Santa Ana, California, to provide more information on their rights.
What an Emergency Protective Order Entails
As an emergency protective order recipient, you first need to establish the components and effects of the document on your life and the access you have to other people. California law defines an emergency protective order as a legal order issued by a judge to any person the court reasonably believes to be in danger from domestic violence abuse.
Based on the terminology, an emergency protective order is an emergency solution to provide security for the alleged victim by preventing you from coming close to them or contacting them illegally. Since the order is for immediate use, the requester can obtain it through a direct phone call with a judge, followed by subsequent communication to you as the alleged abuser.
The emergency protective order applies as soon as the judge issues it, meaning the requester should try to notify you of its existence. The order then lasts for a maximum of five business days. Alternatively, the requester may remain protected for up to seven business days if the duration lasts longer, as they will be in pursuit of a formal restraining order.
Factors the Judge Considers Before Issuing an Emergency Protective Order
Although an emergency protective order's application and issuance process is quick, the judge handling the request must first consider several factors. Your defense attorney can review whether the judge assessed all the relevant factors, deeming the emergency protective order lawful.
Among the main elements for the judge to consider are the following:
The Applicant Has Reasonably Established Imminent Danger from Domestic Violence
First, the judge should establish from the applicant's account that they will likely face domestic violence soon without an emergency protective order. The judge should determine this by listening to the current circumstances and asking if the requester has an alternative place to hide or delay their exposure to domestic abuse.
As the accused offender, you can challenge an emergency protective order if you can establish that you did not pose any immediate threats of domestic abuse to the applicant. This can be because you were not close to them or did not contemplate any violence, especially if you were asleep.
The Applicant Faces an Immediate Risk of Abduction
Alternatively, the basis of an emergency protective order granted against you can be that you pose a threat to abduct the applicant in question. Your actions or language may be the primary indicator of this, warranting a request for an emergency protective order.
Your defense attorney will require you to provide any relevant information that may have prompted the emergency protective order requester to raise these claims. With this information, your defense attorney can help you prepare strong defenses to counter the emergency protective order, if necessary.
An Active Emergency Protective Order Will Prevent Repeated Domestic Violence
Some emergency protective order applications may also involve repeated domestic abuse, warranting immediate protection. As the receiving party, your actions may also push for your arrest as police officers institute investigations around domestic violence claims.
If the matter escalates to threats of arrest, you want to call your defense lawyer immediately to help them plan ahead. Once they receive the relevant information, they can move a motion to delay or object to your arrest until the investigation officers obtain a formal warrant.
The Applicant is a Minor at Risk of Present Domestic Abuse
The law aims to protect children by allowing them to apply for an emergency protective order when needed, especially in an abusive household. The minor can obtain an emergency protective order for violence or aggressive experiences with a family member or any other person in the household.
If you are the child's parent or guardian, you may need further legal advice on navigating parental rights without violating the emergency protective order. Your defense lawyer will therefore play an important role in helping you determine the most workable solution for your situation.
Establishing if an Emergency Protective Order Applies to You
During the period that the emergency protective order runs, any contact with the alleged victim is unlawful and could have serious consequences for you. You, therefore, need to consult with your attorney to establish whether you qualify as an abuser within the context of an emergency protective order.
The legal reference to establish whether you are an abuser in the emergency protective order is the California Family Code under Sections 6250 to 6253. The provisions define an abuser as anyone who has previously sexually assaulted a victim, causing them serious mental and physical distress. Sexual assault ranges from forced sexual contact to inappropriate sexual remarks within the domestic context.
A domestic abuser is anyone who has used physical force to hurt another person in the household. For example, an older sibling may fall within this definition if they expose their younger sibling to harm through physical force.
The definition also applies if you have previously threatened to harm a person in your household or have hit them intending to cause physical harm. The judge handling the emergency protective order application also considers other violent actions apart from hitting, provided they expose the victim to danger. For example, pushing, pulling hair, biting, and being aggressive when you speak to the victim can also warrant an emergency protective order.
Other factors that may qualify you as an abuser capable of receiving an emergency protective order include stalking the victim, compromising their mental health, and harassing them. Harassment complaints may involve both physical and online cases, including cyberbullying.
Restrictions To Observe After Receiving an Emergency Protection Order
After the requester notifies you of an existing emergency protective order against you, several restrictions apply to promote their security. The basis of an emergency protective order is to prevent your access to the applicant unless in authorized situations, so you can expect to receive any of the following restrictive orders:
You Cannot Contact the Applicant Using any Medium
Contacting the alleged victim of domestic violence is a direct violation of emergency protective order orders, as they restrict you from doing so. In this context, contact involves going close to the person or any location they may be in, especially their home. Physical contact restrictions apply with specific terms, including the maximum distance from the alleged victim.
Other forms of contact, like calling, emailing, texting, or accessing the victim's social media profiles, are also prohibited, and any violations can attract legal consequences. The victim can obtain any evidence of attempted communication if they decide to file a criminal case. To avoid this, you want to follow the directives as your lawyer helps you find an alternative solution to navigate the emergency protective order.
You Cannot Continue to Abuse the Applicant
If the alleged victim has compelling evidence of your domestic abuse against them, the emergency protective order applies to formally warn you against repeating the acts against them. You risk facing serious criminal penalties for failing to observe the restrictions, especially if the applicant has already reported the issue to the police. Avoiding all forms of contact with them is thus highly advisable.
You May Need to Relocate From Your House
Relocation orders are common where you and the alleged victim share a home, especially if you are spouses, roommates, or cohabitants. Although the orders may disrupt your routine, you want to observe them in the interim as your lawyer prepares to seek an amendment to the emergency protective order.
An amendment request may be accepted if you demonstrate to the court that house relocation is difficult due to financial circumstances. Since the judge will also consider the applicant's safety, they may direct you to apply for temporary shelter stays or other charitable options pending your case. You may also move in with a trusted friend or relative until the court issues further directives on the emergency protective order.
You Must Avoid the Victim's Workplace or School
Besides avoiding the applicant's home, an emergency protective order restricts you from accessing their workplace or school if they are minors. The basis for this is that they frequent these areas, and you will likely run into them and violate the protective orders.
If you work or attend school at the same institution, you can request that your attorney raise this issue with the judge and seek an alternative. The judge may then request that your employer give you time off or a temporary transfer to a different institution. Other alternatives are also applicable, depending on the circumstances.
You Must Avoid Contact With the Applicant's Children
Child protection is paramount in emergency protective order cases, and the presiding judge will also include a restriction against coming close to the applicant's children. The order applies even where you have not exposed the children to violence, as you are a primary domestic violence suspect.
The directive may change if additional information is available to the judge, including your role in the children's lives. For example, if you are actively involved in their daily lives as a parent, the court can adjust the orders to give you restricted access to the children.
Elements for the Prosecutor to Prove in an Emergency Protective order Violation
If you fail to meet any or all of the abovementioned restrictions, the emergency protective order applicant can file a complaint with the criminal department to push for your arrest and trial. Once the prosecutor takes on your case, they are responsible for showing your guilt beyond a reasonable doubt for the offense. The basis for filing a criminal case lies under Section 273.6 of the Penal Code, which prohibits an emergency protective order violation by the person it restricts.
The main elements of a crime for the prosecutor to prove are:
The Judge Issued a Valid Emergency Protection Order
The validity element in an emergency protective order violation case is important because the entire case is unfounded without it. The main components of a valid emergency protective order are that the applicant must be in imminent danger of domestic violence and have a reasonable fear for their safety.
Additionally, an emergency protective order must include its validity period and inform you, as the recipient, of your rights to consult an attorney upon receiving it. The emergency protective order becomes operational once you receive notification and indicate that you understand its contents.
You Were Aware of the Existing Emergency Protection Order
Another important element for the prosecutor to prove is that you knew of the existing emergency protective order and what it entailed. The team must show that you understood your obligation to avoid the domestic violence victim and any other orders from the document.
The prosecutor can establish this element by providing evidence that you received a phone call, email, or text from the emergency protective order requester informing you of its existence. They may also produce a record of exchanges that shows you received the actual emergency protective order document with all the orders you are to observe.
You Violated the Emergency Protective Order Directives Intentionally
To conclude, the prosecutor should show that you intentionally violated the emergency protective order orders, resulting in criminal action on your part. The knowledge of the existing emergency protective order is enough to show that any action you took to contact or see the applicant was intentional.
However, you may unintentionally violate the emergency protective order, especially in public spaces and other locations where you cannot reasonably foresee the applicant. Despite this, the prosecutor may proceed with their argument, but you can raise your counter argument as a defense.
Defenses for Violating an Emergency Protection Order
After the prosecutor closes their case, you can raise your defenses for violating the existing emergency protective order and avoid facing legal penalties. Your attorney will guide you through the applicable defenses to ensure you persuade the court to find you not guilty. Several defenses include:
You Did Not Receive Notification About the Emergency Protective Order
The most common defense is stating that you did not receive a notification about the emergency protective order on time, causing you to contact the applicant. If so, the court can pardon you for your attempt and impose the orders.
You Did Not Violate the Emergency Protective Order Intentionally
Alternatively, as elaborated above, you can claim that you intentionally did not violate the emergency protective order. The defense works best if you cannot reasonably foresee being in the same location as the applicant on justifiable grounds.
Penalties for Violating an Emergency Protective Order
In California, violating an emergency protective order attracts misdemeanor penalties, including:
- Up to one year in jail.
- A fine of up to $1000.
However, repeat emergency protective order violators may face felony charges and penalties. If so, you may face a sentence of up to three years in state prison, a fine of up to $1000, or both.
Contact a Criminal Defense Attorney Near Me
An emergency protective order may push you to change significant parts of your daily life, mainly because it prevents you from seeing people you may live with or interact with frequently. Upon receiving court documents to institute the emergency protective order, you want to contact your defense attorney for more information on the way forward.
Among the most important details to ask for is how to avoid violating the emergency protective order, even as you seek to enforce your rights. Partnering with a skilled attorney is advantageous, as they provide helpful information on the best approach to observing the emergency protective order.
At Darwish Law, we dedicate our services to providing quality criminal defense advice and court representation to any client facing an emergency protective order in Santa Ana, California. Our team has helped hundreds of clients establish the basis of the emergency protective order they received and represented them in any court appearances required.
We are also open to providing additional support, especially if you must prepare for an upcoming criminal case related to the emergency protective order. With our help, you can look forward to a smoother court process and accessing more details on your rights as the receiving party of an emergency protective order. For more information on how an emergency protective order works and how to protect yourself from criminal liability, call us today at 714-887-4810.