A criminal protective order is something that is done in a domestic violence case. The purpose of a protective order is to protect the allege victim in a criminal case. In San Diego, protective orders are generally issued at the arraignment. The judges generally listen to a brief summary of the facts of the alleged offense and order a protective order based on what they have heard. In our courtrooms it seems like judges order more protective orders than any other counties or states. In most states judges take into account that two people are living together, have a family together and what the alleged victim wants. In California, all they take into account is the alleged facts from the prosecutor. No matter how much the victim says that they are safe or that they do not want a protective order, it is highly that a judge will order one. There are two main types of protective orders in San Diego. A stay away order is one of them and the other is a no negative contact order.
Stay Away Order
A stay away order is the most common protective order issued in the courts. It means that one must stay away from the other person while the case is pending and then after the case is pending if there is a conviction. The stay away order encompasses a lot of kinds of contact. This is a non-exhaustive list of what the stay away order requires
- Do not come within 100 feet of the other party
- Do not contact the other party in person
- Do not contact the other party be any kind of electronic contact (including cell phones, email, social media)
- Do not have a third party contact the other party besides your attorney
- If incidental contact incurs for example being at the same place at the same time, the restrained party must leave immediately
If you violate any condition of the stay away order then you will be charged with violation of a criminal protective order. This charge is generally a misdemeanor but under certain circumstances could result in a felony.
No Negative Contact Order
A no negative contact order is a type of protective order that gives more leniency to the restrained party. A no negative contact order literally means “no negative contact”. We often get asked for examples on this so here is the best way to explain it. Negative contact is an argument or one saying terrible things to another. When there is a no negative contact order, the defendant needs to make sure that they are not arguing with the other person in a rude or offense manner. However, it should be noted that the only way that they would be found in violation of this is if someone calls the police. It is not up to the Sherriff’s or anyone else to monitor contact. A no negative contact order is very rare and is only ordered in unique circumstances.
Terminating a criminal protective order
Terminating a criminal protective order can be done orally or by motion. What most attorneys don’t know is that there is actually a penal code that explains how and when a protective order should be terminated. California Penal Code 1203.3 allows the courts to modify terms of probation and section (6) allows the courts to modify a protective order. The penal code says the courts need to look at several different things which include:
- Whether the probationer or supervised person has accepted responsibility for behavior that was abusive against the victim
- Whether the supervised person is actively participating in counseling sessions
- Whether they are attending parenting counseling, or attended alcoholics or narcotics counseling.
- Whether they have moved out of the state, country or are incarcerated
- Whether any of the parties are living together
- Whether the defendant has done well on probation
- Whether the victim desires the change, what their reasons are for it. Do they have a safety plan? And have they consulted a victim’s advocate.
- What impact any change will have on the children
- Whether or not the ends of justice will be served
At San Diego Domestic Violence Lawyers we can help with your case
Our law firm has experience dealing with criminal protective orders. Whether it is arguing for a no negative contact order or arguing to terminate an order completely, this is something that we know how to do and we can apply our experience from other cases in order to help your situation. These types of things are scary and can affect your family and your life forever. Don’t go at it alone. If you need help with your case, give us a call for a free consultation.