An emergency protective order stops an abuser from accessing or harming their victim. If you are served with the order, you lose a lot of your rights and privileges. The offense is charged under California domestic laws. Prosecutors are strict when it comes to prosecuting cases against women and children. It is essential to be careful about what you do after being charged with the crime. At The Los Angeles Criminal Defense Attorney, we are well trained and have many years of experience handling domestic violence cases. Contact us today if you have an EPO against you.
What is an Emergency Protective Order?
An emergency protective order is similar to a restraining order which stops an abuser from harming a victim. However, an emergency protective order is much faster to acquire compared to the restring order. An emergency protective order is requested in situations that are much dire such as domestic and child abuse.
But victims who have been continuously harassed or stalked can also ask for an EPO. The order aims to keep a victim safe before a more permanent order is put in place. When a victim of violence is in danger of abuse, he/she will seek help from a law enforcement officer. The officer must then establish that there is probable cause before asking for the warrant from a judge.
Some of the probable causes include evidence of physical or sexual abuse and threats of physical harm. The judge will also review the evidence and determine whether the EPO is necessary. Once the judge grants the order, it will become effective as soon as the county sheriff serves you with it.
The Purpose of an Emergency Protective Order
An emergency protective order is essential at keeping a domestic abuse victim safe. It is also useful at giving victims peace of mind. The order can also accomplish several things such as:
- Prevent you from contacting the victim in any way, including sending emails or making phone calls.
- Take custody of your children if they are at risk of danger.
- Prevent you from further causing harm to the victim.
- Stop you from destroying the victim's property.
- Stopping you from going near or contacting the victim’s children, especially when they are also victims of abuse.
- Ask you to move out of the victim’s home in the case where you both live together.
- Ask you to keep a certain distance from the victim or the children.
Enforcing a Restraining Order
An emergency protective order only lasts for a few days(5-7 days) because they are only meant to prevent you from attacking or causing more harm to the victim. Once you have been issued with the restraining order, there will be a court hearing. The judge will take into a count the petitioner(victim), police reports, and witnesses then decided whether the victim deserves a more permanent order.
If you violate an emergency protective order, you will be arrested and charged under California penal code 273.6 PC. Before being charged for the crime, the police will come to arrest you. Here is how the arrest process begins:
When a report has been made that you violated a restraining order, the police will start their investigation. They will start by gathering evidence, including witness testimonies. However, suppose the police witnessed you committing the cime. In that case, they will arrest you immediately without conducting much investigation. Keep in mind that the police must have probable cause to arrest you. As part of the investigation, the police may question you or search your property. The purpose of this is to find sufficient reason to prove that you indeed violated the order.
Arrest and Charges
Once the police have gathered enough evidence, they will take the prosecutor’s report for him/her to file the charges. The prosecutor will go through the police report and review the evidence. If there is sufficient evidence to charge you, the prosecutor will seek an arrest warrant from the judge. However, if the evidence is insufficient, the prosecutor will ask the police to conduct additional investigation.
Once the judge grants the arrest warrant, the police will come to your location and arrest you. During the arrest, the police will cuff you and put you in a police cruiser before transferring you to the station. The police do not have to inform you of your Miranda rights during the arrest unless they intend to interrogate you. The Miranda rights are based on the fifth amendment right against self-incrimination. These rights are:
The right to stay silent. It’s your constitutional right not to speak during the interrogation. You don't have to answer any questions the police ask you during an interrogation.
If you choose to talk, your statements will be used as evidence in court. If you decide to give your versions of events to the police, you can waive the right to remain silent and talk to them.
You can invoke the right to stay silent even after you have waived it. If you decide not to talk anymore, you can stay silent without any repercussions, even in the middle of the interrogation.
The right to have an attorney. It’s your right to be represented by an attorney irrespective of the charges brought before you.
The government will hire an attorney if you can't afford one. Since it is your constitutional right to be represented, the government will appoint a public defender to represent your case at no cost.
Once the prosecutor charges you with violating an emergency protective order, you will be taken to court for arraignment. The law requires that you be prosecuted within two days (48hours), excluding weekends and public holidays. Arraignment is an important step because this is where the judge will read out your charges aloud. He/she will also inform you of your constitutional rights about the trial.
The judge will also ask you how you plead. California has three types, please. Guilty plea, not guilty plea, and no contest. If you plead guilty or no contest plea, the case will proceed to sentence, which can be set at a later date. A not guilty plea means that the court will proceed to the next stage. Before you take any plea, your attorney needs to advise you on the consequence of each plea.
The judge may also choose to grant or deny you bail. If given bail, you will be taken back to custody until someone pays the bail for you. However, if denied, the case will proceed to the next stage.
In a pretrial stage, a lot of things will take place. A process known as discovery will happen where both attorneys from each side will exchange evidence. Discovery is important to prevent any surprise pieces of evidence during a trial.
A Pretrial process gives attorneys a chance to file any motions they may have. Your attorney might file a motion to suppress certain evidence if they were illegally collected. The attorney could also file a motion to dismiss the charges if the prosecutor does not have sufficient evidence to take the case to trial.
Suppose you were charged as a misdemeanor, the law states that the trial should start within 30 days after taking the plea. If it's a felony charge, the trial should start 60 days after arraignment. California has both a bench and a jury trial. a Jury chosen from the members of the community presides over a jury trial. In contrast, a judge presides over a bench trial. It’s your right to have your case had by a jury, but you can also waive this right and have the trial presided over by only the judge.
During the trial, both attorneys from each side will start with opening statements. Since the burden of proof is with the prosecutor, he/she will present evidence showing that you are guilty of violating an emergency protective order. The evidence includes witness testimonies about what they saw or heard. Your attorney will submit evidence challenging the prosecutor's case and evidence.
When all the evidence and the witness testimonies have been submitted and heard by the court, the attorneys will give their closing testimonies. The judge will advise the jury on what to do before releasing them to deliberate. If the attorney fails to prove that you are guilty beyond a reasonable doubt, then the case will be dismissed, and you will be released. But if the evidence is sufficient, the jury will find you guilty.
The jury will consider all the evidence submitted and then unanimously decide whether you are guilty of an EPO violation. If you are found guilty, you will be taken into jail as you wait for sentencing. Keep in mind that a verdict of not guilty does not mean it's a finding of innocence. It only means the evidence was not enough to prove you were guilty beyond a reasonable doubt.
Sentencing is set a few days later after the trial. Both attorneys will have an opportunity to give supporting reasons as to the appropriate sentence. Your attorney may provide evidence showing that you should be given a lenient sentence. On the other hand, the prosecutor will provide supporting evidence showing why the sentence should be much harsher.
If you are not happy about the verdict, you can appeal the case. Even though it seems like a great thing to do, appeals are quite difficult. So your attorney must advise you on the best way forward. Appeals are only filed if:
- You believe the evidence subjected in the trial was insufficient to warrant the guilty verdict.
- Mistakes of the law were carried out during the trial.
Appealing does not mean you will go through a new trial. It means the judges will go through the trial transcript and review all the court proceedings to establish whether there was indeed an error. If they don't find any errors, the conviction will stay as it is. If there were errors in the trial, the judges might order a new trial.
Remember, if you were convicted of a misdemeanor offense, you must file the appeal notice within 30 days from the judgment day. If it was a felony conviction, you must file the appeal within 60 days.
What to do If You Are Facing an EPO Served Against You
Being served with an EPO is not pleasant whether or not you are guilty of the accusations. However, hos you feel, it is important not to react in a way that may jeopardize your freedom. Follow these suggestions if you have an EPO issued against you.
Obey the Order
One of the things you can do wrong when you are served with an EPO is breaking the rules. For example, confronting the victim, demanding to know why they filed that order against you is a violation. Even if the victim calls or texts, you are not supposed to respond. For this reason, it is important to follow all the rules listed in order no matter how much you want to defend yourself. You may be charged and face serious penalties if you fail to abide by the rules.
Contact an Attorney
Once you have been served with the EPO, it is important to contact your attorney. An attorney will guide you on how to behave and give you all the necessary instructions to keep you safe. Your attorney may also file a motion to lift the EPO, especially if you are not guilty of the victim's accusation.
Gather Physical Evidence
Ensure you gather enough evidence that could help you fight the order and possibly the case. If you have been accused of assault, you can show that you were not present at the scene. Ensure you also have records that are in support of your case. These records include letters, emails, GPS records, and any other relevant information.
Witness testimonies are critical in proving your innocence and help you fight the EPO. Ensure you also have witnesses who could vouch for your alibi. Having supporting evidence is critical, especially when the victim has made a false accusation about you.
Elements of Emergency Protective Order
Violating the terms of an EPO is a serious crime in California. According to Penal Code 273.6 PC, You will be charged if you fail to abide by the order's terms. For the prosecutor to successfully prove that you are indeed guilty of the crime, he must show the following elements:
The judge issued a protective order against you
You could not be convicted of the crime if there was no order in the first place.
You were aware of the protective order against you.
The prosecutor must show that you knew there was an order issued against you and chose to violate it. This element is necessary to prove intent.
You had the means to follow the order but chose not to
The prosecutor must also show that you chose not to follow the protective order though you were in a position to follow it.
The prosecutor must show that you willfully planned on violating the order.
Possible Defenses for Violating a Protective Order
Being arrested or charged for violating a protective order is devastating, especially when you think about the possible penalties. For this reason, you must hire an attorney to represent you to avoid the possible penalties skillfully. Your attorney should use some of the best defense strategies to help you fight the case. These defenses are:
Lack of Intent
The prosecutor needs to show that you planned to commit the crime; otherwise, the charge won't hold up in court. For instance, if you accidentally bumped into the victim on the street, that is not a violation. Hence, your attorney can provide evidence showing that you did not plan to violate the EPO’s terms.
Keep in mind that only a judge has the legal right to lift a protective order. So, if your ex-wife or girlfriend calls you asking for a second chance, you should not agree. Comply with the order to avoid unnecessary repercussions.
Your attorney could also argue that you were falsely accused. Sometimes a person who hates you for no reason or an ex who is bitter about a break may try to get back at you. The victim may come up with ways to trap you into making a mistake. One of the ways he/she may do that is by calling you or intentionally visiting areas they know they can bump into you.
You Didn't Know About the EPO
It would not be a violation if you were not informed of the EPO issued against you. Your attorney can show that you did not receive the order by providing evidence that the order was sent to a different address. He/she could also show that the sheriff delivered it to the wrong person.
You Had No Ability to Follow the Order
Having the ability to violate EPO is an important element for the prosecutor to prove his case. If your attorney can show that you could not follow the order, you cannot be charged for the crime.
Penalties for Violating the Order
Violating an emergency protection order is considered a misdemeanor offense under California penal code 273.6 PC. If convicted, you will serve one year in county jail and pay a $1,000 fine. However, there is an instance when the offense can be prosecuted as a felony. These instances are:
- This is the second time you are being convicted of violating the emergency protective order.
- You used violence when violating the order.
The felony offense carries a jail term of up to three years and a $10000 fine. You can also serve the jail term and still pay the fine.
A felony conviction can also affect your gun rights. The state will take away your right to own, use, and possess a gun.
Besides being charged under California Penal Code 273.6 PC, the prosecutor can also choose to add other charges to your record. These offenses are:
It is a criminal offense to harm or issue threats of harm to anyone close to you. If you are guilty of the offense, you will be charged under penal code 243(e)(1) PC for domestic battery and Penal Code 273.5 PC for inflicting corporal injury on an intimate partner. If convicted for the offense, you will face a jail term of two years in county jail and a $2000 fine for domestic battery. If convicted under Penal Code 273.5, you will pay a $6,000 fine and a one-year jail term.
Stalking is considered under Penal Code 646.9 PC as harassing or threatening someone to the point they fear for their safety. A conviction carries a jail term of one year and a $1,000 fine.
Criminal threats is a serious offense in California. The crime is defined under Penal Code 422 PC as threatening to harm or kill a person. The threats create fear in the person to whom you issued the threats. A conviction carries a one-year jail term in county prison and $1000 fine.
California Penal Code 368 PC defines elder abuse as the abusing of people who are over 65 years. The crime is charged as a misdemeanor offense with a fine of $6,000 and a jail term of up to one year.
Find a Criminal Defense Attorney Near Me
An emergency protective order is requested by a law enforcement officer to stop or prevent a person from harassing or harming the victim. A violation of the protective order could land you in serious trouble with the police and law. If you have been charged with a violation of the emergency order, you need a skillful attorney. An attorney who knows how to defend you will help you avoid the harsh penalties that come with the charge. Our attorneys at The Los Angeles Criminal Defense Attorney are the right fit for you. You can easily reach us at 424-333-0943 if you have any information.