Defending Protective Order Applications in Virginia

Restraining order (protective orders) protects Virginians in protected classes from people who have threatened them, hurt them, or otherwise caused reasonable fear of harm. Husband-wife is the most common protected class in Virginia. Most other domestic and intimate relationships are protected as well.

Usually, applicants file protective order applications after police make a domestic battery arrest. Almost all area law enforcement agencies require arresting officers to explain the PO process to an alleged victim. Some agencies even allow officers to submit the EPO paperwork. More on that below.

These applications are difficult to defend, mostly because the burden of proof is so low in criminal court. Applicants must only prove the required harm by a prep-onderance of the evidence (more likely than not). He said-she said cases almost never hold up in criminal court. But the alleged victim’s testimony by itself, even if contested, could convince a court to issue a restraining order.

Many courts err on the side of caution in this area. They basically give alleged victims the benefit of the doubt, reasoning that the added protection is worth the cost to civil liberty. So, a Leesburg criminal defense lawyer must stand up for these defendants in court.

Emergency Protective Orders (EPO)

No Leesburg criminal defense lawyer can mount an effective defense to an EPO application. There’s no hearing and the judge may issue an EPO based solely on the alleged victim’s statement. Defendants don’t get a chance to tell their side of the story or even receive notice of the proceeding.

Unfortunately, the news gets worse. EPOs are unusually broad in Virginia. A judge, magistrate, or even a police officer (in some cases) can issue an emergency protective order. These orders generally prohibit any contact between the parties, require the respondent to stay away from the petitioner’s home or work, and sometimes address possession of residence or firearms.

The good news is that an EPO usually lasts a maximum seventy-two hours or until the end of the next business day when the issuing court is in session.

Preliminary Protective Orders (PPO)

These orders are also ex parte orders in many cases. Defendants do not have a right to respond to the alleged victim’s charges. A PPO extends protection up to fifteen days while the court schedules a full hearing to decide whether a longer-term order is necessary.

A PPO could also give an alleged victim another bite at the apple. If a lower authority, like a police officer or magistrate judge, refuses to issue an EPO, the judge could reverse that decision.

Final (Permanent) Protective Orders (FPO)

These orders provide longer-term protection after a full hearing, at which both sides may present evidence. Evidence in FPO hearings usually includes witness statements, police reports, and perhaps medical bills or other official documents.

A final protective order can last up to two years, and may be extended even further if the petitioner shows a continuing need for protection. FPO provisions could include:

• Absolute no contact in any form (personally, telephonically, or electronically)
• No proximity to the petitioner’s home, workplace, or other specified places,
• A kick-out order that excludes a respondent from a shared residence,
• Exclusive use of the residence or temporary custody arrangements, and
• Possible surrender of firearms and other weapons.

Undermining the petitioner’s proof, such as the reliability of eyewitnesses, could be an effective strategy in these cases. However, because of the low burden of proof, this approach is often hit and miss.

An out-of-court settlement is usually a better idea. A consent decree usually has the same provisions as an FPO. But a consent decree doesn’t have the same stigma as an FPO. If the petitioner refuses to settle and insists on a trial, that refusal may be admissible at the trial to show that the petitioner has an axe to grind against the respondent.

Count on a Dedicated Loudoun County Lawyer

There’s a big difference between an arrest and a conviction in criminal law. For a confidential consultation with an experienced criminal defense attorney in Leesburg, contact Simms Showers, LLP, Attorneys at Law. Virtual, home, and after-hours visits are available.