Both criminal protective orders (CPO) and emergency protective orders (EPO) are issued by a judge or magistrate of the Orange County court. Typically they are made at the request of law enforcement or the District Attorney. Criminal protective orders and emergency protective orders are authorized by Penal Code section 136.2.
Emergency Protective Order (EPO)
Emergency protective orders are usually obtained telephonically by a police officer. Typically, the officer is at the scene of a domestic violence or assault call and is requesting the EPO on behalf of the victim. The officer must make a proper showing of probable cause to the magistrate before an EPO can be issued. The EPO offers short-term protection to the “protected person”. Emergency protective orders can last no longer than seven days.
Criminal Protective Order (CPO)
The defendant in a domestic violence or assault and battery case will be brought before a judge prior to the seven-day EPO expiration deadline. The DA will ask the judge to issue a long-term criminal protective order to replace the EPO. The defendant’s criminal defense attorney will have the opportunity to argue against a CPO, but the judge is the final arbiter of the issue. In cases of domestic battery, child neglect, or assault the judge will almost always issue a CPO. These orders can last up to three years, or until the defendant is convicted and sentenced. At sentencing, the judge may issue a new CPO that can last up to ten years.
Stay Away/Residence Exclusion
Both emergency protective orders and criminal protective orders can order the defendant to stay a specific distance away from the protected person or persons. For example “stay at least 100 yards from Jane Doe.” Even if the defendant shares a residence with Jane Doe, the defendant MUST stay away on pain of arrest.
Both CPOs and EPOs can also prevent the defendant from having any contact with the protected person or persons. Even contact through third persons can be prohibited. In this case, simply sending a text message or asking a third person to deliver an innocuous message to the protected person will violate the order and subject the defendant to jail.
A criminal protective order or emergency protective order will ban the defendant from owning or possession any firearms while the order is in affect. A defendant must sell any firearms they own or possess to a licensed firearms dealer or surrender them to law enforcement.
Punishment for Violating a CPO or EPO
Penal Code 273.6 authorizes punishment of up to one year in the Orange Count jail for violating a criminal protective order or emergency protective order. If the defendant causes injury to the victim while violation the CPO or EPO a judge MUST sentence the defendant to at least thirty days in jail. Moreover, a second violation of an EPO/CPO is a “wobbler”. This means it can be prosecuted as a misdemeanor or as a felony, with up to three years in the state prison.
Modifying a CPO or EPO
The protected person can go before a judge any time and request modification of the protective order. The most common request is removal of the “stay away” order and to allow “peaceful contact”. This means the defendant can be with the protected person but cannot annoy, harass, or even yell at the protected person. Any contact other than peaceful contact will result in immediate arrest.
Free Telephonic Consultation With an Orange County Criminal Defense Attorney
If you would like more information on criminal protective orders call The Law Office of EJ Stopyro at (949) 559-5500. We offer a free and confidential telephonic consultation with an experienced Orange County criminal defense lawyer. We are located at 32072 Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675. We have meeting offices throughout the county.