The criminal protective order is normally issued at the time of the defendant's arraignment. They will be required to personally appear in court in order to be formally served with a copy of the order.
A protective order is issued during the court process to protect the alleged victim in domestic violence cases. While the case is pending, a judge will order you stay away from the victim and to stop contacting them.
For example, in Los Angeles County criminal courts, if the case domestic violence case involves a husband and wife, the judge could order a level one order.
This means they can still communicate, but the defendant is ordered to:
- not annoy,
- strike, or
- harass the other spouse.
Once the case is completed, if the defendant is found guilty, it will become a permanent protective order.
The terms of these orders can vary and the judge has discretion over exactly which conditions are imposed and which persons are protected by the order.
Most protective orders are temporary and will last the length of the case. After the case is over, depending on the result, will dictate how long the actual protective order lasts.
It's not uncommon for the protected person to want the change a protective order or have it terminated completely.
This article will summarize the common protective orders under California Penal Code section 136.2 which courts issue and highlight some concerns which criminal defendants should be aware of when involved in a domestic violence case.
Full Stay-Away Criminal Protective Order in California
The most commonly issued criminal protective order is a full stay-away. This typically provides that the defendant cannot come within 100 yards of the protected person, who is the alleged victim in the case.
The defendant additionally cannot contact the protected person, whether by:
- social media, or
- through a third party acting as a proxy or go-between.
This can obviously be a very burdensome order on a criminal defendant. In many domestic violence situations, the defendant and the alleged victim cohabitate and have already reconciled by the time the case goes to court.
Nevertheless, a no-contact order will usually result in the defendant having to move out of the shared residence during the pendency of the case. This is especially burdensome if the parties share a child.
The defendant would be required to relinquish any firearms in their possession and would be prohibited from owning or possessing firearms while the order is effective.
Peaceful Contact Criminal Protective Order in California
A less-restrictive alternative order is a “peaceful contact” criminal protective order.
This version of the order allows the defendant to remain in contact, and be physically near, the protected person, but prohibits:
- harassing, or
- otherwise engaging in aggressive or abusive conduct toward the alleged victim.
California criminal courts are much more likely to issue this less-restrictive peaceful contact order in cases where the parties share children and live in the same home.
Often, a criminal domestic violence case occurs in parallel with civil proceedings in either family or dependency court, or both. These other proceedings may deal with child abuse allegations by the Department of Children and Family Services (DCFS), or a divorce proceeding.
Criminal court judges will often defer to the greater expertise of family or dependency courts regarding the appropriate level of contact between the parties and their shared children.
For that reason, if a family court, for instance, allows for peaceful visitation, a criminal court will often issue a peaceful contact order to be consistent with the family court's orders.
Violating a Criminal Protective Order in California
Violations of criminal protective orders, under California Penal Code Section 273.6, by the defendant during the pendency of the criminal case can result in severe sanctions.
First and foremost, adherence to the provisions of the criminal protective order is a requirement of bond, if any has been posted, or of own-recognizance release. For that reason, a violation entitles the court to revoke the defendant's bond or O.R. status and place them into custody.
On a practical level, demonstrating an unwillingness to comply with a criminal protective order will sabotage plea negotiations and likely result in the defendant foregoing opportunities for a favorable disposition.
Conversely, showing good compliance is a mitigating factor which may help resolve the case successfully. Accordingly, strict compliance with the criminal protective order, however burdensome on the defendant, is always in the client's best interest.
In addition to potentially being placed in custody, a violation of a criminal protective order is a separate misdemeanor criminal offense which carries potential jail time and other penalties.
If a violation is alleged, however, the defendant still has a right to a formal violation hearing or, in the case that new charges are filed, all the rights that normally attend to a criminal prosecution. Potential defenses would include:
- inadvertent contact – i.e. the defendant accidentally ran into the protected person in public with no intention to violate the stay-away provisions of the order – or
- lack of objective evidence that a violation actually occurred.
Finally, it is worth noting that the alleged victim has substantial input into the issuance of a protective order.
The alleged victim always has the option to come to court, but their input is particularly relevant to a judge who is deciding what conditions, if any, to impose as part of a criminal protective order.
Most bench officers are open to input from the victim at an initial appearance about whether or not to issue a full stay-way order.
However, where the facts of the case as alleged are particularly bad, a judge may issue a full no-contact order even over the objection of the alleged victim.
If you are an undocumented immigrant and convicted of domestic violence, you could face immigration consequences, such as deportation.
Contact a Los Angeles Domestic Violence Lawyer
If you, or someone you know is facing domestic violence charges and is concerned with the issuance or modification of a protective order, please contact our experienced criminal defense attorneys for an initial consultation.
Understanding the dynamics in court concerning protective orders is a critical aspect of defending a domestic violence charge.
Call Eisner Gorin LLP t 877-781-1570.