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Criminal Protective Order vs Restraining Order: What’s the Difference?

Friday, September 19, 2014 9:52
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criminal protective order vs restraining order

Criminal protective order vs restraining order

Victims and witnesses of a crime often need protection from the court. So do people involved in a domestic dispute. There are different remedies a court may order to provide a person relief from harassment or harm.

A criminal protective order (CPO) may be issued at the request of law enforcement to protect a person deemed to be at risk as the result of a criminal investigation or a victim of a crime. A domestic violence restraining order (DVRO) is a remedy you can ask for in a civil or family law matter if you have been the victim of physical or mental abuse from someone with which you have a close relationship.

Our attorneys at Wallin & Klarich want you to be aware of the differences between these two types of orders and how you can obtain court-ordered protection.

What is a Criminal Protective Order?

A criminal protective order protects a victim of a crime from further and future harm or harassment by an aggressor, usually the defendant in a criminal case. Victims of violence, witnesses subject to intimidation and their families can be granted protected person status during a criminal case.

A CPO supersedes any other type of civil restraining order issued by a family court judge or civil order. For example, if a family law judge issues an order that allows contact with certain persons but the criminal order has a “no contact” condition, the conditions of the CPO are followed.

There are several levels of protection under a CPO, including:

1. Emergency Protective Order (EPO)

An emergency protective order is a type of restraining order that law enforcement may request from a judge. Judges are available to issue an EPO 24 hours a day so a police officer that responds to a violent crime can request an EPO at any time.

Law enforcement must show probable cause for the issuance of an emergency protective order. Probable cause is supported by a victim suffering actual physical harm resulting in marks, bruises or a trip to the hospital. Verbal threats could also be probable cause to issue an EPO.

The emergency protective order is effective immediately and could last up to 7 days. The EPO will clearly state the date it expires. You will need to review the EPO paperwork carefully so you understand its parameters and expiration date.

An EPO will prevent another individual from speaking or coming near the protected person. It could also include family members or people who reside in the same household.

2. Criminal Protective Order (CPO)

A more extended protective order in a criminal case may be issued when the defendant appears at the first court date, known as the arraignment. Most prosecuting agencies will file criminal charges well before an EPO expires. Typically, the prosecuting attorney will petition the court to issue a CPO pursuant to California Penal Code Section 136.2.

criminal protective order

A criminal protective order protects victims of crimes.

By doing so, the prosecuting attorney will further protect the victim or witness as the EPO will have since expired. Although the prosecuting attorney normally petitions the court for a protective order, judges have the discretion to grand or deny the order. The judge will review the facts of your case and will decide to grant or deny the prosecution’s request.

For example, the following cases will likely result in the granting of a criminal protective order by the judge:

The length of the CPO will be determined based on the reason for the issuance of the order. If the CPO was issued to protect a victim or witness from harm or intimidation to testify in a criminal case, the length of the CPO will be three years. However, once the defendant has been convicted and sentenced, the CPO is automatically terminated.

If the defendant is convicted of a sex offense or domestic violence crime, the judge can issue a protective order preventing the defendant from contacting the victim for 10 years. The CPO will remain valid even if the defendant is in custody.

A protected person listed in a CPO can request that a protective order be modified. For example, people who are married, have kids and live under the same roof may seek a modification of the protective order to allow the restrained party to remain in the home. The easiest way to modify the CPO is to ask the judge for a “peaceful contact” or “no negative contact” order. This doesn’t terminate the protective order, but allows the restrained person to continue to make contact and be near the protected party, so long as it is peaceful.

3. Temporary Restraining Order (TRO)

When you go to court to ask for a TRO, you must provide the court with information about the circumstances leading to your request. If the judge agrees, the court may grant you a TRO.

You may ask the court to issue a TRO whenever you are the victim of an actual threat of harm or harassment.

For the purpose of a TRO, harassment is defined as:

  • Unlawful violence;
  • A credible threat of violence;
  • Intentional conduct directed at a specific person that seriously alarms, annoys or harasses the person, and that serves no legitimate purpose;
  • Intentional conduct that causes you substantial emotional stress.

Temporary restraining orders usually are granted for up to 25 days. Before the TRO expires, a hearing will be held to determine if a permanent restraining order should be issued.

4. Permanent Restraining Order

Both parties will appear in court within 25 days of when the TRO was granted. At this hearing the court may issue a permanent restraining order (PRO). This hearing is similar to a trial as the judge will hear from both parties in addition to any witnesses to determine whether a permanent order is necessary.

If the court determines that a PRO is not necessary, the TRO will be dissolved and the matter will be terminated. If the judge issues a PRO, the court will determine the restrictions included in the order and the length of the order.

PRO’s are not actually permanent. They typically expire after five years. When it expires, you can ask for a new restraining order so you can remain protected.

5. Civil Restraining Orders

Civil restraining orders are completely different from criminal protective orders. They are usually requested by individuals, not by law enforcement. A civil restraining order is granted by a family law judge or civil judge. Similar to a CPO, violation of a civil restraining order is a crime and punishable in a criminal court.

What is a Domestic Violence Restraining Order?

A domestic violence restraining order (DVRO) is a court order that protects people from abuse from someone with whom they have a close relationship. The person seeking protection is called the protected person. The person you want protection from is called the restrained person.

domestic violence restraining order

A domestic violence restraining order protects victims of domestic violence.

Generally, a restraining order is a civil rather than criminal matter, unless the District Attorney’s office is charging the person to be restrained with domestic violence. Restraining orders are also granted to people going through a divorce, legal separation, or paternity case.

You can ask for a domestic violence restraining order if:

  • A person has abused (or threatened to abuse) you; and
  • You have a close relationship with that person. A close relationship means you are:
    • Married or registered domestic partners;
    • Divorced or separated;
    • In or were in a dating relationship;
    • Living together or used to live together (more than roommates);
    • Sharing a child together; or
    • Closely related by blood, marriage, or adoption (such as a parent, child, brother, sister, grandmother or grandfather. In-laws and step-relatives in a current marriage are also included).

Abuse is not limited to physical contact causing injury or pain. Verbal, emotional (or psychological), sexual and even economic abuse can qualify for a restraining order.

Parents and guardians may file a restraining order on behalf of an abused child to protect the child from further or future harm. Children 12 or older can file the restraining order on their own.

Differences between a Protective Order and a Restraining Order

A restraining order has some things in common with a protection order. Both can order the other party to:

  • Not contact or go near you, your children, other relatives, or others who live with you;
  • Stay away from your home, work, or your children’s schools;
  • Move out of a shared residence; and
  • Forfeit his or her right to own or possess a firearm while the order is in effect;

However, a restraining order can also impose other conditions on a restrained person, such as:

  • Obey child custody and visitation orders;
  • Make court-ordered child support payments;
  • Pay spousal or partner support;
  • Pay certain bills;
  • Stay away from or give up control of a pet; and
  • Release or return certain property.

Once the court issues a restraining order, the order is entered into a nationwide computer system (called CLETS) that all law enforcement officers may access. A valid restraining order remains in effect anywhere in the United States. If you move out of California, your order is enforceable by a local law enforcement agency where you relocate.

Consequences of Violating a Protective or Restraining Order

If you violate a protective or restraining order, you could be arrested under California Penal Code section 273.6. If convicted, you face up to one year in jail and fines of up to $1,000.

If you injure someone while violating a restraining order, your fine can double to $2,000 and you face up to one year in jail.

Subsequent violations of a protective order within seven years are punishable by increasingly mandatory minimum sentences, up to and including three years in jail.

Contact Wallin & Klarich for Protective or Restraining Order Issues

If you have a protective or restraining order filed against you or you are seeking to file a restraining order, you should consult with an experienced restraining order attorney at Wallin & Klarich today. At Wallin & Klarich, our attorneys have over 30 years of experience successfully handling cases involving criminal protective orders and restraining orders.

Wallin & Klarich has offices conveniently located in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville.

Call us today at (877) 4-NO-JAIL (877-466-5245) for a free telephone consultation. We will get through this together.

The post Criminal Protective Order vs Restraining Order: What’s the Difference? appeared first on wklaw.


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