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I have a question about a Emergency Protective Order issued in San Francisco, CA about it's validity and being in public record.

San Francisco, CA |

I am trying to get information on a Emergency Protective Order for a relative . The order was never served and the only copy of the order was a photocopy of Application for the Emergency Protective Order ( LETS ) OPE - 001 which was sent by mail to the restrained party by the person to be protected . The details are as follows : Spelling of the restrained person's last name in items # 2 and # 9 is not correct as the first letter is wrong and identical in both instances . Item # 8 has the name of the judge and the time / date contacted but box number 8 is not checked . Item 13 is blank , isn't this a requirement of CA Family Code Section 6253 ( c ) Proof of Service items 14 - 17 , name / signature of server is all blank . Does it need to be served and then court filed before it will be part of the court files ?

somehow avvo messed up, it's CLETS and EPO-001. Basically, the EPO-001 seems more like a application and the items mentioned were all blank so wouldn't this mean under California Family Code 6200 seq, it's not even a valid order until all the correct boxes are checked, all blanks are filled in and it's served prior to it's expiration. What I want to know is with all those problems, would it still be in the courts files and available as public record?

Attorney Answers 3

Posted

This question s is not clear. It seems that the CLETS order was not served and on any case the s name is misspelled.

The CELTS order is in the system---that's automatic. As far as effectiveness, I would go to the enforcing agency )police) and show them the errors and ask if they can enforce it.

If not you may have to set a hearing just to get the order corrected. Someone else may know more.

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6 comments

Asker

Posted

I am friends with both the person being protected and the person being restrained. The protected person didn't even want the order but what I'm trying to find out is does the order need to have everything filled out and also served before it is filed with the court to become public record? The order expired 3 months ago so I don't think the hearing is going to work as the protected person got medically deported out of the country so they can't even return until 3 years later.

Asker

Posted

The order is handwritten so would the CLETS actually have the correct name or what it actually shows on the order?

Edna Carroll Straus

Edna Carroll Straus

Posted

It is in the CLETS system as soon as it is filed.(These are really never a good idea.) I cannot say how these are entered by a data entry clerk. It would make sense to call the local law enforcement agency and ask them what they have.

Asker

Posted

I know it is in the CLETS system but my question is since it was never served, will it show up in a background check on the person as the order was not requested by the person being the victim who had psychotic problems.

Edna Carroll Straus

Edna Carroll Straus

Posted

Yes it will show up-- CLETS is where they show up on a background check. and always will--even if no permanent order issues..

Asker

Posted

Interesting but doesn't the law and even the instructions to the protected say that item #13 which is the name and address of the court have to be provided? So if that information is not there, it should not even show up. I know earlier you said it is in the CLETS system as soon as it is filed but doesn't the data entry clerk actually read what the order says and use the exact same information on it as it would seem weird if the information in the CLETS and the order doesn't match. Now how long will it show up in a background check and the other question is if there are different people with the same name, how do they verify identity because I think atleast on a DV-110, it will ask for the address of the parties both the protected and restrained but the EPO does not ask for that.

Posted

I'm not really sure what you are asking. However, let me say this: If you want to make sure your order is enforceable, you want to make sure that everything in the order is correct, including the spelling of the defendant/respondent's name and physical description.

It may be useful for you to seek a free legal consultation with a lawyer. It sounds like this is a very important issue and you want to get things right.

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Asker

Posted

Actually, you missed the question. The question is not whether it is enforceable or not since it has expired nearly 3 months ago. It was never served, would it show up in public records when a background check is performed even though the EPO has expired and unserved since the person who is protected has psychotic problems while in the hospital and the police did the EPO but never served it. Would it still get filed and become public record for it to show up in a background check since I read that Restraining Orders even expired shows up in background checks but is that on all types of CLETS restraining orders or only on the non-EPO like the TRO and the one that is 3 years and ofcourse would it have to be served before it will become public record?

Posted

Emergency Protective Orders (EPOs) are issued by the Police Department after speaking to a judge. They are ex parte orders (meaning they are issued without notice or hearing with the restrained person). The order is likely valid (without being able to see it, that can be challenging). There is a difference between "valid" and "enforceable" however. The implications of a Restraining Order, such as an EPO, is that if the restrained party violates the order (by contacting the protected party, coming near them, etc.), they can be arrested simply for engaging in such enjoined contact. The act itself is criminal, even though - under normal circumstances - it would not be. They can be arrested and charged for violating a restraining order.

So, the question becomes, how does an order become "enforceable"? That is through proper service of the order upon the restrained party. This involves personal service (face-to-face delivery of the order to the restrained party). It sounds, however, as though the police are using an alternate take on service of process which may make the EPO unenforceable (in the sense referenced above). It wouldn't undermine the validity of the actual EPO.

If you have further questions, I would recommend that you contact the District Attorney's Office in San Francisco. The Victims Services Division is designed to help victims through questions and issues such as these. See: http://www.sfdistrictattorney.org/index.aspx?page=4

Best wishes.

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4 comments

Asker

Posted

Yes, I know what you mean but what I am asking is will the EPO come up in the restrained persons records during a background check? And since the restrains name is spelled wrong on the EPO application form, would that be the same data entered into CLETS as well?

Sarah Jeannette Arnott

Sarah Jeannette Arnott

Posted

CLETS will follow the EPO spelling. To the extent it shows up in a background check, it will likely show up as spelled on the EPO. To the extent it shows up on any background check, depends upon the depth of the background check.

Sarah Jeannette Arnott

Sarah Jeannette Arnott

Posted

If you, for some reason, are concerned about the misspelling, you should make contact with the District Attorney's office.

Asker

Posted

Thanks for the information. I am not concerned with the misspelling because the issue is the EPO was issued as my friend being the protected person had a psychiatric illness and injured self and she did not even ask for the EPO, it was the hospital that did on my friend being the restrained. The other issue is doesn't the law and instructions to the protected mention item #13 which is the name and address of the court as a requirement but if it is blank, how would it be valid? Besides, the order expired on December 1, 2012.