An emergency protective order (EPO) is a court order that prevents communication or contact between the petitioner and the restrained person. The order can prohibit the restrained individual from entering a specific place, taking children, threatening or assaulting somebody else, or visiting another person at their workplace or home. Typically, a restraining order is issued following domestic violence, harassment, or stalking criminal charges. Violating the order is a crime that could result in severe penalties and a life-altering criminal record, even if it is a first-time crime.

Goldman Flores | Restraining Order Law Firm has extensive knowledge of the California judicial system and courts and knows the effects and full scope of EPOs. Our experienced Los Angeles legal team can assess your case facts, help you navigate the situation, and fight for your rights and freedom. We also believe that you should not endure domestic violence or stalking, and we can help you obtain an EPO. We can prove that you are the victim and that you need the order approved to avoid further attacks.

What is an Emergency Restraining Order and How Does It Work?

An EPO is an order issued by the court to someone with a pending threat of domestic violence (DV). Upon the request of the police, the court can grant the EPO anytime, even via a telephone call.

Unlike other protective orders, you must not undergo a lab process to acquire the EPO. All you need to do to obtain an EPO is to call 911 or the police for assistance. The police will judge whether you need the order and contact the judge.

The EPO remains in place for five working days, or 7 (seven) days, whichever happens first. The order protects the victim until they can request the court for a DV restraining order, provided they believe the abuser is still a threat. Next, the court will schedule a hearing within thirty days, where the involved parties will present their cases before the judge.

As the victim, you must satisfy specific criteria, claiming you are at a pending risk of DV. You can secure the EPO if the statements below apply to your case:

  • You suspect you are at a pending risk of DV due to previous violence allegations or current incidents of abuse or threats.
  • The petitioner is at current or pending threats of abduction by parents or relatives.
  • You are a senior citizen or dependent adult with a pending threat of abuse.
  • You are an underage child with a pending threat of abuse by a loved one or household member.

Abuse can be psychological, emotional, or verbal threats. The definitions of abuse include the following:

  • Physically trying to harm someone else
  • Sexual assault
  • Threatening, hitting, disturbing, or harassing another person

Many individuals assume that emergency protective orders are designed for minors and spouses facing domestic violence. Those who qualify to apply for an EPO must have relations with their restrained person. The individuals who can ask for an EPO include the following:

  • A domestic partner
  • A spouse
  • A person whom the petitioner is dating
  • Any individual related to the accused through an affinity
  • The individual with whom the petitioner had a child with

You can petition for an EPO on behalf of the victim. The law permits a guardian or conservator to be liable for deciding about living arrangements and care of a dependent adult or a senior citizen. 

EPO Inclusions

When issuing the EPO, there are aspects that the judge should include to make the restraining order viable and enforceable. These aspects are as follows:

  • A statement with elements the restrained party should assert
  • The order’s duration (time and date)
  • The contact details of the superior court for the district or county in which the protected party lives
  • A statement printed in Spanish and English

The statement written in the EPO should contain the following:

  • To the individual receiving protection — The EPO will only remain in effect until the time and date stated in the order. You must apply for a new EPO from the previous court to extend the protection. You can consult your attorney for further clarification relating to the application process. Ensure you reach out immediately for legal assistance throughout the process.
  • To the order’s restrained party — The EPO only lasts until the duration highlighted in the order passes. The protected party can obtain a permanent restraining order from the court. You should consult your legal counsel to respond to the victim’s application.

If the individual applying for the EPO is a minor, the order’s statements differ from those provided to a cohabitant or spouse. The order will state that the child could seek a permanent restraining order and legal advice. If the juvenile fears abduction, the order will state that you could apply for child custody.

What the Restraining Order Does

A protective order limits communication or contact between the involved parties. While the specific order varies depending on case circumstances, it can include the following:

  • Banning contact with the victim or their family
  • Banning damage to assets, threats of violence, or violence
  • Granting custody to a child
  • Requiring the defendant to attend substance abuse treatment or counseling
  • Banning possessing a firearm
  • Moving out of a house shared with the protected party
  • Staying a specific distance away from the protected party or space they live or visit regularly

What an EPO Does Not Do

Although the restraining order protects you from violent conduct from the abuser, it does not nullify a marriage or count as a dissolution of marriage if the involved parties are a couple. Additionally, it does not establish parentage if the abuse is not your spouse or domestic partner.

Please note that you will lose your protection from the abuse if you have not submitted the relevant paperwork to obtain a temporary restraining order within seven days. Retaining a restraining order lawyer once you receive the EPO can give you the protection you need.

Serving the EPO

After obtaining the restraining order, you should have a person give the restrained individual copies of the court papers. It is known as serving papers. While a marshal or sheriff can do it free of charge, you can choose another person. Serving papers inform the other party of the case you have filed and what they can and cannot do.

You should have the restrained individual’s location and address to request the sheriff to serve the papers. If your restrained person is detained, the sheriff will serve. However, prison personnel will serve the papers if the other party is in a California state prison.

You can also request another person or retain a process server, provided they are above 18 and not part of the case.

You cannot serve the EPO yourself.

After giving your server copies of your EPO, ask the server to deliver the papers immediately, complete form DV-200 (Proof of Personal Service form), and return with a completed copy of DV-200.

If the individual refuses to take the papers from your server, the server can leave them next to the person and inform them what they are. If you have attempted to serve the papers many times and can prove the person is evading or avoiding service, you can request the judge's permission to serve papers in another way.

Does an EPO Have a Statute of Limitations?

California’s protective orders do not have a statute of limitations (time limits).

Please note that there could be SOLs to the underlying crime that would prompt a petition for the order and persuade the court to approve your request. The longer you wait following the incident, the more challenging it could be to collect proof, find witnesses, and persuade the judge to issue the protective order.

There are exemptions where an EPO approval is based on a previous threat or incident. These circumstances include the following:

  • The person seems to be taking steps to execute the criminal threats they previously made
  • Your previous abuser has been released from detention, and they had vowed to seek vengeance following their conviction

While judges issue a restraining order following the relevant incident occurrence, sometimes they approve the EPO later, given the appropriate circumstances. 

What You Should Do If Served With an EPO

Receiving an emergency protective order is unsettling, regardless of whether you are guilty of the allegations. The recommendations below can help you avoid violating the court order against you and sabotaging your freedom.

Consult an Experienced Attorney

Once you are served with the EPO, it is essential to consult your lawyer. The lawyer will guide you on how to behave and provide you with all the relevant instructions to safeguard yourself. Your legal counsel can also file a petition to lift the EPO, especially if you are innocent of the allegations.

Obey the EPO

A dangerous mistake you can make when serving an EPO is violating the regulations. For instance, confronting the alleged victim and demanding to learn why they obtained the order is a violation. Even if the alleged victim texts or calls, you should not respond. Consequently, it is vital to abide by the terms listed in the EPO, no matter how much you want to defend yourself.  Otherwise, you could be prosecuted and face severe consequences.

Ensure You Have Witnesses Testimonies

The testimonies of witnesses are crucial in demonstrating your innocence and fighting the EPO. Ensure you have witnesses who can provide your alibi.

A witness testimony can also be instrumental in fighting false accusations against you.

Collect Evidence

You should collect sufficient evidence to help you challenge the EPO and the case. If you are accused of assault, you could prove that you were not present at the scene. The documents can include emails, letters, GPS records, and other relevant information.

Violating PC 273.6 and Elements of the Crime

PC 273.6 is the statute that makes violating an EPO against you a crime.

To prove your guilt, the prosecution should verify the facts of the crime below beyond a reasonable doubt:

  • You were issued an EPO against you using the appropriate channels
  • You were aware of the EPO and asserted that you understood the EPO’s conditions
  • The law enforcers considered that you were capable of complying with the order
  • You intentionally breached the terms and conditions of the restraining order.

You Were Issued an EPO against You

The prosecution should prove the restraining order was lawfully issued to establish your guilt. That means if the EPO was issued in a jurisdiction that did not have the right authority, then the order does not have the legal basis, and the prosecution cannot prove a violation of PC 273.6.

Defining Knowledge

The law requires that a person serve you the restraining order and notify you of its limitations. You can be notified through the following methods:

  • Orally by a judge
  • Via personal service by any individual apart from the protected party or a law enforcement official
  • A call by a law enforcer that determines you do not know of the order’s existence

Penalties For Violations of an EPO

Penal Code 273.6 makes it a crime in California to breach the conditions of a court-issued order. Upon being served with the protective order, you should refrain from contacting the protected person or attempting to threaten or injure them in whatever form.

If the protected party calls the police with claims of your violation of the EPO terms, the law enforcers will arrest you. Following the arrest, you will be arraigned in court within 48 hours. During the arraignment, the judge will advise you of your constitutional rights and the criminal charges against you. You can also take a plea. You need an attorney during the arraignment.

Typically, the prosecution files the violation of an EPO as a California misdemeanor. Nevertheless, they can charge it as a felony based on your criminal record and the facts of the DV case. For example, you may be prosecuted for a felony rather than a misdemeanor if there was an alleged act of violence while breaching an EPO.

A misdemeanor carries the penalties below:

  • A maximum fine of $1,000
  • A jail time of 1 year

If the EPO violation is a felony, its criminal consequences are as follows:

  • A prison sentence of three years
  • Fines of up to $10, 000

Violating PC 273.6 is not a crime of moral turpitude. Therefore, a conviction cannot lead to an immigrant being marked as inadmissible or deported.

Please note that a felony conviction can affect your firearm rights. The law bans felons from owning, possessing, or buying a gun.

The Relationship Between  PC 273 Violation and Background Checks

The EPO is a civil issue and will not appear in background checks.

Nevertheless, breaking its terms will appear in background checks, affecting your ability to secure employment and affordable housing and move on after serving time.

You can expunge the conviction and criminal record, provided you:

  • Are not serving time, on probation, or charged with a crime
  • Have completed probation

Expungement is a post-conviction relief option that erases criminal records. After expunging a record, you can truthfully say you have never been convicted, charged, or arrested for a crime. Below are its benefits:

Can the Victim Violate an EPO?

The protected individual in an EPO cannot get into legal trouble for contacting you, the restrained individual. Only you can face criminal charges and arrest for breaching the order.

Consequently, you should avoid contacting the victim. In court hearings, you can use it as evidence that:

  • The protected person does not fear you
  • The EPO is unnecessary

Violations of an EPO Best Defenses

Restraining orders harm your freedom and personal and professional life. EPOs are no different. When you receive the notice of order, you are granted an Order to Show Cause (OSC) hearing. The hearing permits you to narrate what happened based on your assessment and justify why the EPO is unfair or unnecessary to the judge.

Only a judge can nullify, dismiss, or cancel an EPO in California. Your legal counsel should work aggressively to ensure the court modifies or dismisses the order. You can also have the EPO annulled by attending your scheduled court hearing, and if the petitioner does not attend, this could result in a dismissal of the EPO.

You should abide by the terms and conditions of the court order until it is nullified. Failure to comply could lead to legal consequences, including incarceration, paying fines, or probation.

Your lawyer will require effective legal strategies to achieve any of these favorable case outcomes. It involves thorough evidence collection and analysis. Strong defenses to a violation of an EPO are as follows:

Lack of Intent to Violate the EPO

The prosecution team has to demonstrate you planned to commit the offense, or the charge will not hold up in a California court. For instance, accidentally meeting the alleged victim on the street is not considered a violation. In this case, your lawyer can provide proof demonstrating that you did not intend to violate your EPO's terms.

The emergency protective order's provisions state that you could face charges for unintentionally contacting the alleged victim. For instance, if the alleged victim texts or calls you through a different contact and you respond or pick up, you could face charges for violations of the EPO. Therefore, if you are under restrictions of the EPO, ensure you refrain from picking up calls or interacting with unknown mobile numbers.

False Accusation

Your attorney could challenge the accusations against you, arguing the alleged violation of the order is a mere allegation. Your lawyer can present evidence proving that the suspected breach did not happen or that the allegation is baseless.

For instance, you can provide evidence to cast doubt on the alleged victim’s claims since false accusations are common during contentious divorce or custody cases.

Your attorney could also contest the prosecution’s evidence by using emails, text messages, and CCTV footage to show your alleged violation was misinterpreted or doctored. Your legal counsel can also utilize inconsistencies in the alleged victim’s statements to fight their claim.

Remember to avoid damaging evidence if you are accused of breaching an EPO. If you do, it will only increase suspicion against you and risk additional criminal charges, complicating your defense.

You should also avoid communicating with witnesses or the alleged victim. Any communication with these individuals will complicate things and lead to new legal challenges. You should keep off and let your legal counsel handle everything. If law enforcement agents approach you, refer them to your lawyer.

The EPO was An Unenforceable

Your attorney could argue that the EPO was enforceable. The defense is practical if procedural legal errors or flaws occurred when issuing the order. For instance, you can argue that you did not know of the order, the order was not served correctly, or the order was served at the wrong address. An EPO can only be enforceable with proper court notice to make any alleged violations valid.

Moreover, your legal counsel can argue that the EPO had no legal ground or insufficient evidence. Contesting the EPO’s legal and procedural foundation could significantly weaken the prosecution’s case.

Your lawyer can also probe whether the order’s terms and conditions are too vague or broad, making compliance impossible. The EPO can be unenforceable if its terms are ambiguous or not specific enough. A suitable defense highlighting these weaknesses could secure the dismissal of your charges.

Find Qualified and Aggressive Legal Assistance Near Me

An EPO is a court-issued order that protects an individual from physical injuries, pain, or threats of abuse, injury, or pain. Judges typically issue them against members of the same household or a family member threatening your safety. If you want to defend yourself against a protective order or file the order, you need a knowledgeable and experienced restraining order lawyer. The dedicated attorneys at Goldman Flores | Restraining Order Law Firm understands how complicated the law and restraining order are and can help you. Call us at 213-341-4087 for a free case review. Our skilled Los Angeles legal team can dedicate quality time to talk to you, answer your questions, address your concerns, and work with you to obtain the most favorable case outcome.