Protective order defense addressed by Fairfax criminal defense lawyer

Protective order petitions often accompany assault prosecutions and may rise during Covid-19, says Fairfax criminal lawyer

Protective orders (POs) are a harsh tool used to bar all or some contact with the alleged victim by the presumed-innocent accused before a criminal assault trial ever has been held. As a Fairfax criminal lawyer, I know that being cooped up under the same roof during the Virginia governor’s stay at home executive order leads to more clashes among family members and romantic partners, and a possible increase not only in assault prosecutions but also in the filing of civil protective order petitions, also known as stay away petitions. Va. Code §§ 16.1-253.1 and 19.2-152.9.

Court pandemic slowdowns do not apply to processing protective order cases

Alleged victims of domestic assault routinely obtain a renewable emergency protective orders that last for three days. Va. Code § 18.2-57.2. The protective order may be extended as a preliminary protective order (PPO) — without the defendant’s participation — upon a finding of good cause “that the petitioner is or has been, within a reasonable period of time, subjected to family abuse” by the defendant or respondent. In the non-domestic context, a protective order may be issued upon a finding of probable cause that “the petitioner is or has been, within a reasonable period of time, subjected to an act of violence, force, or threat” by the defendant, or that the defendant has a court order for such alleged behavior. Id. The Virginia Supreme Court’s general cornavirus-related delay of all trials to beyond April 26, 2020, does not apply to PO proceedings.

Whether to hold a Virginia PO hearing immediately or to have it trail any parallel criminal assault trial date

The preliminary protective order will set a hearing date to be held within fifteen days after the PPO’s issuance, to determine whether to extend the stay away order to a final protective order that can last up to two years. A litigant has a Fifth Amendment right to remain silent in all court proceedings. If a Virginia assault defendant does not pursue having a parallel final protective order hearing date trail the assault trial (which trailing ordinarily will only be implemented with the extension of the PPO deadline to the next protective order hearing date), then the defendant is faced with the choice between testifying at the protective order hearing and risking that testimony being used against him or her at the parallel assault trial, or remaining silent at the protective order hearing and then more likely losing the hearing.

If the PO defendant gets found guilty at the parallel assault trial before a PO hearing is held, the court may as a result issue a PO without even holding a separate protective order hearing.

Coronavirus as an argument not to throw a PO defendant on the street

With the economic and social stranglehold of the Virginia governor’s stay at home executive order already challenging many couples to find ways to pay their mortgage and rent, a protective order requiring no contact and to live apart can present an extra financial struggle (and emotional struggle if removed from contact with one’s children) for the banished PO defendant to pay for alternative housing, and also a practical struggle to find such housing with fewer hotel alternatives and with people usually renting rooms in their homes possibly shunning newcomers to reduce Covid-19 exposure.

This hardship can be argued to the protective order hearing judge, but I have already heard of judges during this pandemic still requiring PO defendants to live apart from the petitioners rather than instituting such creative stay-away provisions while under the same roof, as requiring remaining in separate rooms and instituting a schedule for separately using such common areas as the kitchen.

When prosecuted for assault or for a PO action, obtain a qualified lawyer

Violating a protective order is a jailable offense in Virginia, as is assault. A defendant going to court without a lawyer in a PO action or for an assault trial is behind the eight ball, at best. Va. Code § 16.1-253.2 and § 18.2-60.4

Fairfax criminal lawyer Jonathan L. Katz pursues your best defense against felony, misdemeanor, and DUI prosecutions. Call 703-383-1100 to schedule a free consulation with Jon Katz about your court-pending criminal case.