Understanding criminal protective orders and civil restraining orders Part 1

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The police usually treat a violation of a criminal protective order much more seriously than a violation of domestic violence or criminal case.

Besides the primary difference that one is issued in a criminal court and the other in civil cases, such as family law, there are many differences between the two orders. A criminal protective order (“CPO") is issued by a Judge in a criminal court against the Defendant after he is arrested, charged or found guilty of certain crimes against the Victim(s). The entity seeking the protective order is the District Attorney’s Office on behalf of the victim/witness. In the civil retraining order (“CRO"), the lawsuit is filed by the victim and the other party is the retrained person. The District Attorney (DA) is not involved at all.

The police usually treat a violation of a criminal protective order much more seriously than a violation of domestic violence or criminal case.

Besides the primary difference that one is issued in a criminal court and the other in civil cases, such as family law, there are many differences between the two orders. A criminal protective order (“CPO") is issued by a Judge in a criminal court against the Defendant after he is arrested, charged or found guilty of certain crimes against the Victim(s). The entity seeking the protective order is the District Attorney’s Office on behalf of the victim/witness. In the civil retraining order (“CRO"), the lawsuit is filed by the victim and the other party is the retrained person. The District Attorney (DA) is not involved at all.

The general types of orders issued are: (1) Emergency Protective Order: this is issued by the police and is valid for 5 days. This usually occurs when the police is called to a home for a domestic violence issue; (2) Domestic Violence Temporary Restraining Order: this is a civil order and is again temporary, usually for up to 3 weeks—it can be made permanent for 1 to 3 years; (3) Criminal Protective Order: obtained through the District Attorney’s Office and is issued in domestic violence, sex crimes or stalking cases; (4) Civil Harassment Restraining Order: civil order and is used for stopping annoyances by neighbors, roommates, co-workers.

The advantages of getting a legal order especially in the criminal setting are many but the primary “bite" to this order is that a criminal charge of violating a protective order can be filed against the defendant or the restrained person. This is a misdemeanor charge and would subject the defendant to a maximum of 1 year county jail, fines or both. Moreover, criminal protective orders are filed with the law enforcement agencies and DA will send a copy of the order to the police so it is in their database.

California Penal Code Section 836(c)(1) requires that the police make an arrest on all restraining order violations. The police usually treat a violation of a criminal protective order much more seriously than a violation of domestic violence or criminal case. When a police officer sees on the computer or in the paperwork that the victim has a criminal protective order, the officer knows immediately that the person is a protected witness in a criminal case overseen by a criminal court judge, and that the suspected has criminal charges filed against him.

I will discuss the vast differences of obtaining a criminal vs. a civil order in my next article but another huge advantage of getting an order in the criminal arena is that the victim is not responsible of serving the restrained person (ie. the defendant). The defendant will be in court and will be provided his copy by the court bailiff or his attorney. The victim in a criminal arena also does not fill out or submit the paperwork to the court. This is all done for the victim by the DA.

Because of the many advantages of the criminal protective orders for victims of violence against women and children, many advocates have set a policy in many, if not most jurisdictions, that DA’s shall routinely and automatically obtain criminal protective orders on all domestic violence, sexual assault and child abuse cases. Though it may seem that these orders are generally for the protection of women, male victims of violence (assaults, battery, kidnapping) are equally protected.

The criminal order is comprehensive. It requires that the defendant, including but not limited to, “not harass, strike, threaten, assault, stalk…." No personal, electronic, telephonic or written contact shall occur. The defendant must not come within certain number of yards from the person. If the Defendant owns firearms, they must be surrendered to a local law enforcement agency or sold to a licensed gun dealer within 24 hours of being served the protective order. The victim may also record any prohibited contacts by the Defendant.

As a victim, it is crucial that you know your rights and convey your fears to the District Attorney and to the judge so that an order can be established. Being prepared with an attorney is a wise and a cost effective way to handling the filing of either a protective or a restraining order.

Part Two: Filing a civil restraining order

Additional Resources

Law Offices of Cariña Castaneda

PhilippineNews.com

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