If there were a serious assault case and if there were even a murder case, of course, those would be the scenarios that a judge looks at to determine whether or not you have the risk of not coming to court. But generally speaking, for a stalking case or for a harassment case, there is little to no bail that’s set, but there will be for sure an order for protection, which the courts love to issue. The DA’s office is fond of asking for these pieces of paper to tell people, don’t communicate, don’t have contact with the other party.
There are about eight or nine different categories regarding not having any contact between yourself and the other party, or through any third person, and also no contact through any electronic media either, as we’ve gotten now into the Internet and the texting age.
Orders of Protection Will Be Issued Upon Your Release From Jail
Interviewer: If you’re picked up for domestic violence, immediately upon release from jail will you have this Order of Protection in place where you can’t, let’s say, contact your wife or kids?
Eric: Absolutely. Before you leave the courthouse, if there’s an Order of Protection issued you’ll have it in your hand as you leave. There are different phases of the Order of Protection, whether it’s just refrain from doing something, refrain from harassing or annoying somebody, all the way to a full stay away Order of Protection, which bars you from entering your own home, even if it’s your house and your spouse’s house.
If the judge orders you to stay away from that person, you’re going to be sleeping some place else and you’re not going to your home. Concerning your clothing and personal items, you have the option to contact a police officer within the next few days and ask the police to come with you so you can get some of your belongings. With the exception of that one accompanied visit, you are prohibited from entering your house.
Your Attorney May Be Able to Modify the Order of Protection
They issue this Order of Protection, and now, what are you supposed to do? You’re out of your house, where maybe that Order of Protection could have been modified to a certain extent, for example to include the language ‘refrain from’. And then if there is a family court case going, or a divorce action or something else, what about your custody issues? What about your personal belongings? What if you are the sole owner of the house and the other party is not on the Deed?
Now you are prohibited from entering your house, and the judge is letting somebody else live in your house. There are a lot of technicalities, and a lot of issues to address that go into appearing before the judge before they issue these orders of protection. The most important is especially prohibiting you from entering your own house. The earlier a client contacts me, the earlier; the better off that person is going to be.
Interviewer: It sounds like the single most important thing that you as a lawyer can do to help people is to try to get these conditions modified when they’re released from jail. This way, they might be able to go back to the house, or contact their wife, or see to their kids, is that right?
Eric: Yes. At the first stage of a domestic violence case, that is the most important thing, since the bail situation is structured so the person can get out of jail. Additionally, an attorney can work to minimize any restrictions on your liberty.
Any time you’re ordered by a judge not to do something, it’s a restriction on your civil liberty. Each case is different but just possibly, under the circumstances, it’s not appropriate or it doesn’t have to be as severe as what the judge is going to order or has ordered.
Any Modifications Should Be Presented BEFORE the Order of Protection Is Issued
Interviewer: How long can it take you to modify the conditions and to improve them?
Eric: Once the Order of Protection is issued, it’s very difficult to modify them at all. Sometimes I cannot get in front of a judge to modify them until the next court date, and again, that court date could be anywhere between three and six weeks.
Then at that time, you now have an uphill battle as to what has changed since the original order was issued. This is also because the next judge you’re in front of is not an Appellate Judge, either. They don’t like to change another judge’s order.
The argument that can arise is, ‘Judge, nothing is different from when the original judge issued this order, so you shouldn’t change it either.’ That’s why it’s so important at the foundation, at the very, very first arraignment to really present the defense attorney’s arguments right away.
Even at that stage, and if the judge is inclined, you can request an appearance, even for the next day. You would be entitled to request a hearing regarding the Order of Protection. During that particular hearing, the person in whose benefit the Order of Protection would be would have to come to court and testify under oath. The attorney can obtain testimony as to why this person need an Order of Protection and what the parameters are and what the restrictions of their Order of Protection should be.
By Eric Sachs