California has made numerous efforts to deal with domestic violence cases. Most of these goals are aimed at ensuring the safety of victims. You are entitled to protection from your abuser if you are a victim of domestic violence. In California, obtaining a domestic violence restraining order could take a while. Therefore, law enforcement officers can seek an emergency protection order when they respond to a domestic violence report and serve it to the restrained person.
An emergency protective order will last for up to seven days. The order is meant to protect a victim of domestic violence long enough for them to seek a restraining order against their abuser. You will receive an emergency protective order for engaging in child abuse, elder abuse, and domestic violence.
If you seek emergency protection from domestic violence or are served with an emergency restraining order, you will require the guidance of a skilled lawyer. At Chula Vista Criminal Attorney, we offer expert legal guidance for all our clients seeking or battling against a protective order in Chula Vista, CA.
What is an Emergency Protective Order?
An emergency protective order is a legal order issued to provide immediate protection for victims of domestic violence in California. A law enforcement officer initiates issuing an emergency protective order after responding to a domestic violence report. The law enforcement officer who responds to domestic violence will request the protective order through a call to the judge.
The emergency protective order becomes effective when it is issued by the judge and reserved for the restrained individual. The EPO lasts for a week, long enough for the domestic violence victim to petition the court for a domestic violence restraining order.
A victim of domestic violence may be able to obtain an emergency protective order under California Penal Code 6250 if:
- The person is at risk of domestic violence. Before an officer requests an emergency protective order, they will check for past instances of domestic violence. This helps determine the level of risk for an alleged victim.
- The person seeking protection is a minor in immediate danger of abuse from a family member. An emergency protective order can be issued to protect a child from abuse.
- The individual who needs protection is an elder in immediate danger of abuse. Under California law, elder abuse is a form of domestic violence. Therefore, an individual at risk of this form of abuse could be protected through the EPO.
Information Included in the EPO
Specific factors must be included in the emergency protective order to ensure viability. Additionally, these provisions will ensure that the order is followed correctly. An EPO should include the following:
- A statement that indicates the elements that must be asserted. This statement shows the conditions set out for the restrained person to follow. This ensures they understand their steps to avoid violating the order.
- The duration that the order will be effective. An emergency protective order will last up to seven days from the date of issuance. When the order is served to the restrained person, it indicates the expiration date.
- Address of the endangered person. The emergency protective order will also indicate the county or district where the domestic violence victim resides.
- A statement informing the protected person that they must seek a domestic violence restraining order if they seek continued protection after the EPO expires.
- A statement that informs the restrained person of the possibility of a permanent restraining order. Therefore, the individual can seek legal guidance to fight the order.
The details of an EPO issued to protect a minor will differ from those issued for a cohabitant or spouse. If you are served with an EPO, you must read and understand the details to help avoid potential violations.
Individuals Protected by the Emergency Protective Order
Not all individuals at risk of harm by another person can qualify for emergency protective orders. This type of restraining order aims to protect domestic violence victims. Learning about your eligibility for an EPO helps a person understand their options when they need protection.
Under California Family Code 6211, an individual will be eligible for the EPO when they have the following relationships with the alleged abuser:
- Former or current spouse.
- A former or current cohabitant.
- An individual with whom the victim has a dating or engagement relationship.
- A person with whom the response has a child.
- A child of the alleged abuser.
- Any individual related to the domestic violence perpetrator.
The law enforcement officers will contact a judge for an EPO if you have been a victim of the following acts of domestic violence:
- Reckless and intentional physical harm.
- Sexual assault and battery.
- Stalking, harassment, and threats.
- Behavior that causes another person to feel unsafe.
Implementation of an Emergency Protective Order in California
The main purpose of issuing an EPO is to keep a dangerous person away from their victim until there is enough time to file for a domestic violence restraining order. Some of the ways the EPO could protect you include:
- The abuser should avoid contact with your children and other family members. For the duration that the EPO lasts, the abuser must stay away from you and your family. This includes avoiding physical contact and electronic communications.
- The Restrained person must stay away from your home or work. One of the emergency protective order conditions is for the abuser to stay away from your home or place of work. If you seek an EPO for your child, the restrained person must stay away from the school the child attends.
- Move-out order. If you share a home with the abuser, the court may order them to move out of the home while the EPO is effective.
- The abuser should release the property. After issuing an EPO in California, the restrained person must release any property they hold for the victim. Additionally, they should not make any decisions that could negatively impact the victim’s life.
- Payment of child support and alimony. When an abuser is ordered to leave the home shared with the domestic violence victim, the children may be required to remain home. However, they may still be required to pay spousal and child support.
Although the EPO can protect you from continued abuse, the order does not count as a divorce or a nullification of your marriage. You must understand that EPOs last for a short time. Therefore, you must take the necessary steps to seek a permanent order. The first step in ensuring continued protection is hiring a skilled domestic violence defense lawyer.
EPO Provisions and California Family Code 6252
Family Code Section 6252 provides several orders by the judge during an emergency protective order issuance. In addition to the contact restriction between the domestic violence victim and the restrained person, the EPO could have other orders regarding the individuals involved in the domestic dispute.
If an emergency protective order is issued in a setting where minors are involved, the court will ensure that the children are cared for. This could involve ordering minors to remain in the family home with the protected person. If the child is at risk of abduction or harm from the restrained person, the court may order that the restrained person avoid contact with the minor.
Violation of an Emergency Protective Order in California
California law is strict when dealing with domestic violence issues. Although an emergency protective order is temporary, it is a court order you must respect. A violation of the conditions of an emergency protective order can result in serious criminal and civil consequences.
Understanding the acts that violate the EPO while helping you avoid the consequences of a conviction. If you are protected, understanding the violations helps you understand what to report to law enforcement officers. Some of the acts that constitute a violation of an emergency protective order include:
- Initiating contact with the protected person. One of the most significant conditions of an emergency protective order is for the abuser to avoid contact with the protected person. This could include physical contact or even electronic communication. An attempt to contact the victim could result in an arrest and criminal charges.
- Property damage. Damage to the victim’s property could violate an emergency restraining order.
- Continued violence. An EPO is issued when law enforcement officers determine the need for immediate protection for a domestic violence victim. You will be arrested and charged with violating the protective order for continuing acts of violence against the protected person.
- Failure to vacate the family home. The court enforces the no-contact order between an abuser and the victim of domestic violence by ordering the abuser to move out of the home. In most cases, your children will remain at home with the protected person. While you may be tempted to stay home and be close to your children, failing to leave as ordered can have serious consequences.
When you are arrested and charged with violation of an emergency protective order, the prosecution must prove the following elements:
The Protective Order was Filed Through the Proper Channels
Before you are convicted of violating an emergency protective order, the prosecution must prove that the order was obtained through the proper channels. An emergency protective order is requested from a judge by a law enforcement officer.
In California, police officers are quick to respond to domestic violence reports. When the officers arrive at your home and diffuse the situation, they will determine whether there is an immediate danger to the victim. The officer will contact the court and request emergency protection. You cannot be charged with violating an unlawful EPO.
You Knew of the Existence of the Emergency Protective Order
An emergency protective order becomes effective and binding when the restrained person is notified of the order's existence. The sheriff’s office will provide you with a copy of the EPO indicating all the conditions. Additionally, you must have asserted that you understood the conditions of the order. The prosecution must prove you received the order before charging you with an EPO violation.
You Were Capable of Following the EPO Conditions
Another element that the prosecution must prove when charging you with a violation of the emergency protective order is your ability to follow the order. An emergency protective order serves to protect the victim of domestic violence from further harm. Therefore, the judge will impose several conditions, including no contact and moving out of the family home.
You will be found guilty of violating the order under California Penal Code 273.6 if evidence proves you understood and could follow the EPO conditions.
You Willfully Violated the Order
The final element that proves your liability for violating an emergency protective order is that your actions were willful. This means that the act that resulted in the violation of the order was intentional.
Regardless of the exact condition you violated, California law treats all violations equally. If you interact with or contact the protected person within the EPO's validity, you could be arrested and charged under California Penal Code 273.6.
A violation of an emergency protective order is a misdemeanor. A conviction for the offense will attract a jail sentence of up to one year and fines not exceeding $1,000. You could be sentenced to probation at the court's discretion instead of spending time behind bars. Emergency protective orders only last up to seven days. Therefore, there is a minimal likelihood of a second violation.
However, you will face wobbler charges if you violate the order multiple times. A wobbler will attract felony or misdemeanor charges. The nature of your charges will vary depending on the exact conditions that you violated. A felony conviction under PC 273.6 will result in a prison sentence of up to three years.
Defense Against Charges for Emergency Protective Order Violation
An emergency protective order is a civil matter requiring you to stop the abuse and avoid contact with the domestic violence victim. However, violation of the order will attract criminal charges and serious legal consequences. You can use the following defenses to fight your Penal Code 273.6 charge:
The Protective Order was Unlawful
An emergency protective order must be issued through the correct channels for you to be charged with a violation. This is after an assessment by the law enforcement officer of the immediate danger that you pose to the victim. You can avoid a conviction by disputing the legality of the EPO.
You Did Not Know About the Order’s Existence
When the judge grants an emergency protective order, the protected person can move forward to file for a domestic violence restraining order against you. However, you must be notified of the EPO's existence. This gives you guidelines on how to act. If the emergency protective order notice was served to the wrong person and did not get to you, you will have a valid defense for your charges.
You Did Not Violate the Order
The emergency protective order requires you to move out of the home you share with the protected person and avoid contact with them. Some reports of EPO violations are based on false allegations. Especially when the contact is direct and undocumented, the protected person can falsely accuse them of contacting them. Without physical evidence of your violation, the possibility of a conviction for the violation is minimal.
The Violation was Accidental
Sometimes, the emergency protective order will stipulate the distance within which you must not come close to the protected person. The prosecution needs to show that you deliberately violated the protective order. You will not be found guilty of violating an emergency protective order if your contact with the protected person was accidental.
Frequently Asked Questions on Emergency Protective Orders in California
If you are a victim of domestic violence, you will want to secure immediate protection from your abuser. On the other hand, if you are served with an emergency protective order, you could be confused about the necessary steps to protect your rights. The following are commonly asked questions about an emergency protective order:
Can the Protected Person Violate an EPO?
The conditions indicated in the emergency protective order are meant for the restrained person to follow. Therefore, a victim cannot be charged for contacting the restrained person. However, it would be unwise for the victim to contact the restrained person. This act could be used to dispute the need for a domestic violence restraining order. The restrained person can argue that they do not threaten the alleged victim, hence the voluntary contact.
How is An Emergency Protective Order Served?
When the court grants an emergency protective order, the law enforcement officers or sheriff’s office will be responsible for presenting a copy of the order to the restrained person. The order becomes effective immediately after the restrained person is notified of its existence.
In addition to warning you to stay away from a protected person, the emergency protective order lets you know the victim intends to file a domestic violence restraining order against you. In this case, you may need to prepare for a court hearing to contest the restraining order.
You must receive a notice of the protective order to be expected to follow its conditions and cannot be cited for violating the EPO.
What Happens When the Court Issues an Emergency Protective Order in California?
If a law enforcement officer deems it necessary to seek a restraining order, they will contact a judge and file for the order. If the judge is convinced that there is a need for immediate protection, they will issue the order. This protects the domestic violence victim and takes away some of the rights of the abuser.
All the law enforcement officers in the state will be notified of the EPO’s existence. After the order has been issued, the restrained person will be prohibited from contacting the victim and their family members.
Will an Emergency Protective Order Appear on My Background Check?
The issuance of an emergency protective order is a civil matter. The order will not appear on your background check if you are served with it. However, if you violate the order and face charges under California Penal Code 273.6, the conviction could appear on the background check. This could impact your ability to secure employment and cause the loss of your professional license.
Therefore, it would be best to obey all the conditions of an emergency protective order to avoid these collateral consequences.
Can you Request an Emergency Protective Order for Another Person?
Yes. Domestic violence includes acts like child abuse, spousal battery, elder abuse, and other abuse against family members. If you are the legal guardian or parent of a child who has suffered abuse or is at risk of abuse, you can request a protective order for them.
When the judge issues an EPO for the child, you can also enjoy the protection as their parent. A child over twelve can request an EPO for themselves if there is no parent or guardian to do it for them.
Find a Knowledgeable Criminal Defense Attorney
An emergency protective order is a restraining order law enforcement officers request to protect individuals in immediate danger of domestic violence. When the police are called to your home due to a domestic disturbance, they will assess the situation to determine whether there is immediate danger before requesting the court for emergency protection through an EPO.
If the law enforcement officer issues an emergency protective order to keep you safe from domestic violence, you must understand that this order is only valid for a week. Therefore, you must take the right steps to obtain a domestic violence restraining order. This includes hiring and retaining a reliable domestic violence attorney.
You will also benefit from the top-notch legal guidance we offer at Chula Vista Criminal Attorney if you are served with an emergency protective order. Our lawyers will help you fight against a domestic violence restraining order that could have serious consequences for your life. We serve clients battling domestic violence cases in Chula Vista, CA. Call us today at 619-877-6894 to discuss your case details.