An emergency protective order (EPO) can significantly impact your life. If the court has issued one against you, it means your freedom is restricted in terms of contacting the victim, going near the victim, frequenting certain places, et cetera. And if you violate an EPO, you can be subject to harsh consequences, including incarceration, hefty fines, and probation. You want to consult a lawyer if you have been issued an EPO or are accused of violating one.

At Goldman Flores Restraining Order Law Firm, we are experienced in restraining order matters. Whether you want to contest an order issued against you, defend against protective order violation accusations, or seek to apply for a protective order in San Diego, we can help you. Contact us to schedule a consultation with one of our skilled lawyers.

Emergency Protective Order Overview

An emergency protective order can also be called an emergency restraining order. It is an order that a court issues to safeguard a victim from another named party. Generally, according to California’s Code of Civil Procedure, an EPO can safeguard a person against stalking, violence, threats of violence, physical abuse, or harassment. Additionally, an EPO can state terms and conditions for:

  • Residence exclusion. The EPO can provide that the restrained party vacates the home where they stay with the victim.
  • Staying away. The EPO may require the restrained party to keep a particular distance away from the victim, their children, home, work, or other specific places.
  • Personal conduct. The order may require that the abuser stop doing certain things, such as harassing, making calls to, assaulting, and destroying personal property.

An EPO will also prevent you from possessing, owning, or having control or custody of a gun, ammunition, or parts of a gun. If you possess a firearm, the court will require you to sell or transfer it to a licensed gun dealer or temporarily transfer the gun’s custody to the authorities for the period the EPO will last. 

Generally, an EPO is the first order to be issued in an incident, guaranteeing a restraining order, followed by a temporary restraining order, and then a permanent restraining order. However, EPOs are generally issued in emergencies where protection is needed immediately. For example, in a domestic violence fight between a husband and wife, the police who respond to the scene may contact a judge for an EPO to provide emergency protection as the victim seeks temporary and later, permanent protection. Police officers can issue an EPO if they believe a victim requires immediate protection from their abuser.

In other words, an EPO is used on an ex parte basis. That means without your knowledge as the restrained party or the victim's knowledge as the protected party. And since it is issued without you knowing, you will not have a present chance to contest the allegations.

The police officer (who is the first responder) called to a scene of supposed violence makes a subjective decision, generally depending on the supposed victim's side of the story, whether there are grounds to support the issuing of the EPO. Should the offer determine reasonable grounds, they will call a judge, who will also determine whether there are grounds for the court order. Should the judge agree with the police officer that there are grounds for the EPO, they will issue the order. If you, as the party to be restrained, are still present at the scene, the police officer will serve you the EPO.

EPOs last a short period. Generally, they can only be valid for seven days from being issued. After the order expires, it is prevalent for the supposed victim to request temporary and permanent protective orders through the court system.

Different Types of EPOs

California statute recognizes four kinds of EPOs that safeguard against domestic violence, civil harassment, workplace violence, and dependent or elder abuse.

Domestic Violence EPOs

A judge can issue you a domestic violence EPO if you and the victim share a close or intimate relationship. In this case, a close or intimate relationship means you and the victim are divorced, married, separated, dating or dated before, domestic partners, live together, have a child together, or are in-laws or family members. Blood relatives are also considered people you have a close relationship with.

Dependent Adult or Elder Abuse EPOs

A judge will issue a dependent adult or elder abuse EPO in the following scenarios:

  • The victim is 65 years old or above (or is between eighteen and sixty-four years old with specific physical or mental disabilities that hinder them from performing the usual life activities), and
  • They have faced neglect, abuse, deprivation, or physical injury from a caregiver.

California law describes abuse as financial, physical, or emotional neglect, abandonment, or withholding of the fundamental life necessities by a caregiver, resulting in mental, physical, or emotional suffering.

Civil Harassment

Civil harassment EPOs are issued if the victim is facing abuse, harassment, stalking, or threats of violence by a person with whom they do not share a close relationship (like is the case with domestic violence EPOs).

California law describes harassment as unlawful violence, such as credible threats of violence, battery, assault, or an intentional and conscious act directed at a specific person that alarms or annoys them and does not serve any legitimate purpose. Usually, civil harassment EPOs are issued between friends, neighbors, acquaintances, or strangers. Some instances that qualify as harassment include the following:

  • Repeatedly surveilling a person by standing outside their vehicle, place of work, home, or school.
  • Repeatedly emailing, calling, or texting a person’s home or place of work
  • Videotaping a person’s movement in their home
  • Constantly following a person around in public places

Workplace Violence EPOs

A judge can issue a workplace violence EPO to protect the victim from immediate danger, credible threats of violence, or abuse at the place of work.

Challenging an Emergency Protective Order

Sometimes, a person may be issued an EPO based on exaggerated or false claims, significantly affecting their professional and personal life. If you are quick enough (given the short validity period of an EPO), you can contest an EPO in court if you believe its issuance was unjustified. You can do so by bringing a request to end or modify it and appearing at a court proceeding to present your case before the judge.

Challenging an EPO entails completing court forms, serving the victim the paperwork, and arguing your case before a judge, who determines whether or not to terminate or change the order. During the proceedings, you can argue why the EPO is unnecessary. You can also call witnesses and submit evidence. If the judge agrees with you, they may grant your request. Steps that can help you challenge the EPO issued against you successfully are:

  • Understanding the accusations. Carefully assess the EPO document to know the precise accusations against you. The EPO will state the reasons justifying the granting of the order and the restrictions placed against you. Understanding the details surrounding the allegations against you is critical for developing your defense.
  • Hiring a skilled lawyer. A knowledgeable lawyer specializing in restraining orders can significantly help contest the EPO. They can assist you in understanding your rights, developing a compelling defense, and representing you at the hearing. The lawyer can also ensure the court follows all legal procedures correctly and that they present your case effectively.
  • Collecting evidence. Gathering different pieces of evidence to discredit the accusations is essential to your defense strategy. Evidence could include the following:
    • Documentary evidence. Police reports, medical records, or other formal documents that can refute the accusations or provide context.
    • Physical evidence. Gather tangible items supporting your case, like videos and photographs.
    • Testimony from witnesses. Statements from people who can testify to your behavior or give an alibi can help your case.
    • Electronic communications. Text messages, social media posts, or emails that contradict the victim's claims
  • Filing your response. You want to file an official response to the EPO with the court. The response, called an “Answer,” enables you to submit your account of events and challenge the accusations. Your lawyer will assist you in drafting your response, ensuring it is meticulous and covers all the concerns raised in the EPO.
  • Preparing a hearing. The court will set up a hearing to decide whether to modify, dismiss, or uphold the EPO. It is essential to prepare for it.
    • Rehearse your testimony. Practice what to say before the judge. Be consistent and clear.
    • Review the facts. Familiarize yourself with all your case details, including witness testimonies and the evidence.
    • Coordinate with your lawyer. Work with your legal counsel to ensure they have covered your defense properly
  • Presenting your case before the court. During the hearing, you and the victim can present your cases. Tips for arguing your defenses include:
    • Being honest. Provide straightforward and genuine responses to questions from the victim’s lawyer and judge
    • Remaining respectful and calm. Maintain a respectful and composed demeanor during the proceedings.
    • Highlighting inconsistencies. If any contradictions or discrepancies in the victim’s evidence or testimony exist, ensure to raise them.
  • Awaiting the judge’s ruling. After considering evidence and testimonies from either side, the judge decides whether to modify, uphold, or dismiss the EPO.

Should they decide to uphold the court order, you want to follow it until its expiration. Adhere to all its terms and conditions, even when you still think it is unfair. Keep comprehensive records of any incidents and interactions with the case. They can come in handy if the case proceeds and the victim decides to file a temporary or permanent restraining order.

How an EPO Can Impact Your Life

If there is an EPO against you, it hinders you from moving close to or contacting the victim for some time. In many instances, an EPO can include additional conditions, such as:

  • Specific child custody and support orders
  • Moving out of the house
  • Not owning a firearm

Under California statutes, an EPO against you is only valid after you have been notified of its existence. If an EPO has been issued against you and you were not notified in advance, it will be deemed invalid.

Even though the precise consequences will depend on the EPO terms you violated, for example, if you possessed a firearm after being required not to or contacted the victim, any violation may turn into incarceration and heavy fines in no time. Also, fighting against the EPO will be challenging if you violate it. That would confirm that the victim would need a temporary or permanent restraining order to safeguard themselves.

Emergency Protective Order Violation

Even though an EPO lasts only seven calendar days, you want to adhere to its terms, as mentioned above. Violating the EPO in any way is a criminal offense under Section 273.6 of the California Penal Code. However, for the jury to find you guilty of an EPO violation, the prosecution must demonstrate five primary elements beyond a shadow of a doubt. These elements include the following:

  • A court legally issued you a written court order
  • It was an emergency protective order
  • You were aware of the court-issued order
  • You possessed the current capability to comply with the court order’s terms, and
  • You deliberately violated the order.

Concerning the element of knowledge, you need to have had the chance to read through the EPO (even when you never did so). Regarding the aspect of deliberately violating the order, the violation needs to have been intentional and willful.

Also, note that should you commit a different offense while violating an EPO, the prosecution can prosecute you under PC 273.6 and the law regulating the other criminal offense. 

Violating an EPO is considered a misdemeanor offense in many cases. The violation carries a county jail sentence of up to one year and a fine not exceeding $1,000 upon a conviction. However, note that violating an EPO can be deemed a wobbler violation if it is your second conviction for an EPO violation and your violation entailed violent conduct.

A wobbler refers to any violation that the D.A. can try as a misdemeanor or felony. A misdemeanor conviction attracts a $1,000 court fine and up to 12 months in jail. On the other hand, a felony conviction carries sixteen months, two years, or three years in custody and up to $10,000 in fines.

However, you can successfully defend against EPO violation charges and avoid a conviction and the resulting consequences. The following defense strategies can be effective with juries, judges, and prosecutors in having PC 273.6 charges dismissed or reduced:

  • You never willfully violated the EPO. Your lawyer can argue this defense if you accidentally ran into the victim. This can, for example, occur when you are on the way from or to work, grocery shopping, going to an event such as a movie or concert, or visiting a park. Even if the victim panics and alleges you broke the terms of the order, the D.A. should dismiss the charges against you after they see that what happened was not deliberate.
  • You did not know the EPO existed. You are not obligated to adhere to the terms if the EPO was not correctly served. Your lawyer can use this defense when the EPO was served to the wrong individual or was not served at all. 
  • The EPO was invalid. Just because the judge issued the EPO does not automatically imply it is illegal. There have been cases where EPOs have been issued without a legal foundation or in violation of correct judicial procedures. After your lawyer shows the prosecution the invalidity of your EPO, it will likely drop your charges.

Fortunately, violating an EPO under California law will not lead to negative immigration consequences in many cases. But if you additionally have a conviction for domestic abuse apart from that of the EPO violation, it may lead to deportation. If you are a non-citizen facing criminal prosecution, contact a lawyer as soon as possible to learn your options for staying in the country.

A conviction of a misdemeanor EPO violation will not affect your firearm rights. But on the other hand, a felony conviction for violating an EPO will strip you of your firearm rights for life.

Also, EPOs generally do not reflect on criminal background checks because they are practically civil matters. But if a jury convicts you of an EPO violation, the conviction will appear when a person runs a criminal background check.

You should be able to successfully have a court delete your EPO conviction from your criminal record in a process known as expungement. An expungement is possible provided you have completed serving your probation or jail sentence, whichever applies. Once you have expunged your EPO violation conviction record, it will no longer reflect in future criminal background checks.

Can You Accuse the Victim of Violating an EPO?

Victims, regarded as the “protected party” in an EPO, will not be in any legal trouble for communicating or coming close to you as the restrained party. Only you can be arrested and face criminal prosecution for breaking the terms of the EPO against you. Consequently, it is not in your best interest for the victim to contact you. You could use the victim’s contacting you as evidence if there are any future court hearings. You could argue that the victim no longer fears you and that the EPO is no longer needed, or the court need not grant a temporary or permanent restraining order anymore.

What Happens After an EPO Expires?

An EPO remains valid for seven calendar days. Once it expires, its legal protections stop existing. That means the victim is no longer lawfully prevented from approaching or contacting you.

If the victim still feels they require protection against you, they can move to court to request temporary protection. To obtain a temporary restraining order, the victim must go to the Superior Court and fill out the necessary protective order forms. Or, their lawyer can fill out these forms for them. It is considered a form of self-help.

In those forms, the victim must describe why they need protection from you. After they have completed them, they file with the clerk and pay a filing cost (unless there is a waiver in place). A judge will then review the forms and decide whether or not to issue a temporary restraining order. If the judge issues the order, it will often last twenty-one days.

After the judge has issued a temporary restraining order, they will establish whether or not to make it permanent (by issuing a permanent restraining order) after considering the evidence on the issue. Before this proceeding, a process server must issue you a notice of court hearing, and they must file proof of service. The judge will issue one if the evidence shows the victim needs a permanent restraining order. The permanent restraining order will then remain effective for 1-5 years. The victim can request to extend a permanent restraining order if they still feel you pose a threat against them.

California courts generally grant EPOs and TROs based only on a victim's accusations. However, to be granted a permanent restraining order or an extension of the order, the victim should bring evidence to the proceeding, such as:

  • Threatening or angry emails, text messages, or voicemails that you, as the restrained party, left
  • Photographs of the wounds, if any, you inflicted
  • Eyewitnesses who saw or heard you being violent
  • Any police reports describing your violence.

Contact a Knowledgeable Restraining Order Attorney Near Me

Dealing with an EPO is not easy, even though it only lasts briefly. Within that short period, an EPO can change your professional and personal life as you know it, restricting some of the essential aspects. On the brighter side, being issued an EPO does not mean you cannot contest it. Sometimes, EPOs can be issued dependent on exaggerated or false claims. In that case, an experienced lawyer can help you contest it and regain your freedom.

At Goldman Flores Restraining Order Law Firm, we have helped clients in San Diego challenge restraining orders issued against them, including EPOs. We boast the knowledge and expertise in developing defenses that resulted in restraining orders being terminated or modified. We also defend against restraining order violation cases and help victims apply for these court orders. If you need any of our services, call us at 619-943-4400 to schedule a free consultation.