Updated: Nov 14, 2020
A criminal protective order (CPO) is a command of restraint (order), issued by a criminal judge to a defendant in a criminal case, which is designed to stop (restrain) the defendant from contacting an alleged victim, and thereby give protection to that alleged victim from the defendant’s conduct. CPOs are enforced by the criminal and civil law and willful disobedience of a criminal protective order will subject the violator to criminal and civil penalties.
Issuing a Criminal Protective Order
Criminal protective orders are issued against defendants in criminal court when the alleged victim is expressly or impliedly threatened with future physical or emotional harm from the defendant. For example, in a criminal threats case, the defendant could be issued a criminal protective order in favor of the alleged victim (protected person) even if the alleged victim does not request a criminal protective order. This is because the crime of criminal threats is an express threat of harm to the alleged victim by the defendant. Implied future harm to the protected person can also be found in criminal allegations of harassment by telephone, stalking, assault, battery, vandalism, child abduction, domestic battery, inflict corporal injury to spouse, child abuse, elder abuse, kidnapping, willful child endangerment, child molestation, annoying or molesting a child, sending harmful matter to a child, etc.
Common Orders in CPOs
A criminal protective order may be modified to fit the needs of the protected person. With that said, common orders in CPOs include: No contact or no negative contact with the protected person (See below for differences); no communication with the protected person (including communication by mail, email, social media, or through third persons); no physical contact (i.e. 1000 feet physical distance); no threatening, molesting, stalking, harassing, or intimidating the protected person; no financial dealings with the protected person (transferring, selling, buying, or otherwise encumbering jointly held bank accounts, stocks, real and personal property, intellectual property, etc.); transfer firearms and have no possession of firearms, and orders of protection for family and friends related to the protected person (children, parents, etc.).
Note: The orders in criminal protective orders should not be overly broad, but the fact that defendant is burdened by the orders for reasons not related to communication are not sufficient to overcome the protected person’s need for protection. For example, the fact that defendant is burdened by a CPO that does not allow her to travel her normal route to work because of a physical distance order in a CPO (i.e. stay 1000 feet from the protected person), will not be sufficient reason to modify or terminate the CPO.
No Contact v. No Negative Contact
Some criminal protective orders mandate that the defendant have no contact with the protected person (alleged victim). No contact orders means exactly as they sound: No contact in any way with the protected person named in the order, including no contact via social media, telephonic, letter writing, or even contact through a third person.
Sometimes, the court’s order is a no negative contact CPO. A no negative contact order means the defendant may have contact with the protected person, but the defendant may not interact with the defendant in a negative manner and the protected person generally decides the meaning of negative contact. No negative contact orders are commonly issued in criminal cases where the defendant and the alleged victim are family member, share a child, are in a dating relationship, or are otherwise familiar with each other. The alleged victim in a criminal case must usually agree to a no negative contact CPO; otherwise, the court will issue a no contact CPO by default.
For example, in a domestic battery case where the wife is alleged to have battered her husband, the husband, as the alleged victim, may request that the court issue a no negative contact CPO against the wife (defendant). This no negative contact order will allow the husband and wife to continue communication for important discussions concerning possible divorce, child rearing, finances, etc. In this situation, if the husband feels that the wife is engaging in negative contact, as determined by him, then he may cease contact with the wife and any attempt by the wife to continue contact with the husband could result in a violation of the court criminal protective order. No negative contact orders are sometimes call peaceful contact only orders.
Note: A criminal court judge can fashion a criminal protective order to address particular issues in the contact and communication between the defendant and the protected person.
CPOs Must be Personally Served: A criminal protective order must be personally served on the defendant. This is precisely why the defendant must personally appear at arraignment (first court hearing), even in misdemeanor cases, when the defendant is charged with an assault-type criminal charges (i.e. criminal threats, domestic battery, inflict corporal injury to spouse, etc.). The defendant will be served a copy of the criminal protective order by a deputy in criminal court. The CPOs are effective immediately unless otherwise stated in the CPO. In contrast, non-assault or neglect type misdemeanor criminal cases may usually be handled by the defendant’s attorney without the need for the defendant to appear in court.
Violation of a CPO
Violating a criminal protective order is a crime. The criminal charges for violating a criminal protective order can include contempt of court, violating a restraining order, and of course, any crime that was alleged in connection with violating the order. For example, if the court ordered the defendant to have no contact with his girlfriend (alleged victim), and the defendant contacts his girlfriend by telephone in violation of that CPO, then the defendant could be charged with any of the following: contempt of court, violating a restraining order and harassment by telephone (PC 653m).
In addition, a violation of a criminal protective order could result in the defendant being remanded into custody for the duration of the criminal proceeding and any bail the defendant might have paid to remain out-of-custody could be forfeited. Violation of a criminal protective order can be classified as a misdemeanor or as a felony depending on several factors, including the underlying criminal charge for which the defendant is in criminal court, the defendant’s criminal history, the egregiousness of the violation, and more (See Violating a Restraining Order, Contempt of Court, & Misdemeanor v. Felony).
Modifying a CPO
There are several ways to change or modify the terms of a CPO. The protected person may simply request a change in the orders at court. District attorneys usually discourage this practice because the protected person is almost always their "star witness" in the prosecution against the defendant; district attorneys disfavor prosecuting cases where the alleged victim is sympathetic to the defendant. Another way to change the orders of the criminal protective order is to file a request to modify the CPO. These modifications are rarely successfully unless the protected person is in agreement; however, when the protected person is in agreement with a modification that protected person should be ready to address the court’s concerns: can the protected person protect himself or herself, physically and emotionally, without the CPO?.
Note: Procedurally, modifying a criminal protective order after an initial protective order is set can be accomplished in court by the protected person, but again, the district attorney is not usually amenable to assisting the protected person in this effort. In addition, the protected person is not likely to receive assistance on this effort from the defendant (or defense attorney) because of the communication restriction in place per the CPO. In practice, this leaves a protected person to fend for themselves in his or her effort to modify a protective order in court. On the other hand, a defendant can request a modification of a protective order and serve that notice of request to the proper entities (DA, probation officer, court, etc.). The DA and/or probation officer will then forward the defendant’s request to modify a CPO to the protected person and the protected person will be given an opportunity to respond. If the protected person agrees with the modifications the court will more likely modify the terms. In practice, this approach is favored by criminal defense attorneys. There is a form used by California courts for this purpose (CR-160 Domestic Violence (DV) & CR-161 Non-Domestic Violence).
Duration of a CPO
A criminal protective order is issued against the defendant at arraignment (first court hearing). The CPO is automatically terminated if the criminal case is dismissed or the defendant is found not guilty. However, if the defendant is convicted in a case where a criminal protective order was issued, then the criminal protective order lasts as long as stated in the CPO form (usually three years). A victim may request to extend a CPO after the CPO expires. This extension may not exceed ten years from the date the CPO was issued against the defendant. The request to extend the CPO beyond the date stated in the CPO form must be formally noticed to the defendant and the defendant must be given an opportunity to respond to this requested extension.
CPO v. Civil Restraining Orders
A criminal protective order is one type of protection ordered in court. Other restraining orders included civil harassment restraining orders, domestic violence restraining orders (DVRO), employment related restraining orders, elder abuse restraining orders, temporary injunction (civil court), emergency protective orders (EPO), and more. The main difference between a criminal protective order and these other types of restraining orders is that a criminal protective order is issued in criminal court and a violation of the order is a separate crime beyond the obvious contempt of court issue. There are other differences between CPOs and other types of restraining orders, but generally speaking, when a person violates a restraining order other than a criminal protective order, the penalty is the loss of a right or money damages.
For example, in family law court, a DVRO may only be filed by a person related to the defendant. There is no such restriction when a criminal court issues a criminal protective order. Additionally, when a person violates a domestic violence restraining order, the judge will usually grant civil remedies against the defendant, not criminal penalties, such as order child custody in favor of the protected person, issue attorney fees against the defendant, and possibly have the defendant serve a short jail sentence of five days per violation.
Moreover, criminal protective orders are not issued unless there is an actual criminal case against the defendant. On the other hand, a person can file a domestic violence restraining order in family law court even if the defendant has not been charged with a crime in criminal court.
Note: Criminal protective orders are considered stronger protections for the protected person than other types of restraining orders. For this reason, any conflict between a criminal protective order and another court’s order is resolved in favor of the CPO. For example, if the family law court orders that a mother may visit with her child on the weekends, and the criminal court orders no contact by mother with the same child, then the criminal protective order takes precedence and a violation of that CPO by mother could land the mother in jail, among other penalties.
Incidentally, is common for protected person to have different types of restraining orders against the same defendant and for different reasons. For example, it is common for a victim of domestic violence to file a domestic violence restraining order against the defendant in family law court even if there is already a criminal protective order in place in the criminal court against the same defendant. This is because the CPO will terminate if the district attorney dismisses the case against the defendant and the victim would be left with no protection. Alternatively, a victim may request a criminal protective order in criminal court even though he has filed for a DVRO in family court for the same protection. This is because the victim can usually secure protection faster in criminal court than by waiting for a DVRO to be granted in family law court.
Defenses to Violating a CPO
The defenses that apply to a criminal charge of violating a criminal protective order are the same that apply to criminal charges in general. No two cases are alike; therefore, no two defenses are alike in any criminal case. With that said, the most common defenses used in violating a CPO include: insufficient evidence to establish that the defendant willfully violated the order, ambiguity in the order, necessity, mistake of fact, and coerced confessions.
Note: The order no negative contact can be fairly ambiguous. What is considered a civil argument to one person could be considered negative contact to another person. This ambiguity could create a defense to a criminal charge of willful violation of a CPO. This is another reason why the district attorney is not inclined to assist the alleged victim (usually the DA’s "star witness") in modifying a CPO from a no contact order to a no negative contact order.
To learn more about criminal protective orders (CPO), how to modify or terminate a CPO, or common defenses to allegations of a violation of a CPO, contact our criminal defense lawyers today. Our team of criminal defense lawyers have experience in criminal defense, family law DVROs, and civil harassment restraining orders. We have defended hundreds of restraining order cases with a combined experienced of over 30 years. We offer free consultations and our attorneys are available every day of the week to assist you. Call today!