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Protective Orders in Domestic Violence Cases

Sean Sherlock Criminal Defense Attorney
Written by Sean A. Sherlock

One significant but sometimes overlooked consequence of a domestic violence charge in Virginia is the issuance of a protective order.  A protective order is not criminal charge, but rather a separate court order that imposes restrictions on the liberty of the accused.  What is so significant about protective orders in domestic violence cases in Virginia is that they are initially issued without the accused having any opportunity to dispute the allegations giving rise to the protective order.  

As we described in our post on domestic violence cases in Virginia, a protective order will usually be automatically issued against a person who is charged with domestic violence.  Under the law, any time the police make an arrest for Domestic Assault and Battery the police officer is required to petition the Magistrate for an Emergency Protective Order (“EPO”).  The Magistrate will usually issue the EPO, and the EPO will usually prohibit the person who is charged from returning home or having any contact whatsoever with the other party.  The protective order can also award sole possession of the residence to one party, and can even require the person charged with domestic violence to pay spousal support or child support.  

Emergency Protective Orders

An Emergency Protective Order only lasts for 72 hours, but it can easily be extended to a 2-week Preliminary Protective Order (“PPO”).  All that is required for the EPO to be extended is for the victim to go to court and file a petition.  This happens without the person who is charged having any opportunity to appear before a judge and argue their case.  When the EPO turns into a 2-week PPO, it creates a civil case that is separate (though related) to the pending criminal domestic violence case.  

Preliminary Protective Orders

Once a PPO has been issued, the court will set a date in two weeks for a hearing to determine whether to issue a Permanent Protective Order.  At that hearing the Petitioner (the person who is seeking the protective order) will have to present evidence to the court to show why they need a protective order.  The Respondent (the person against whom the protective order is sought) also has a right to present evidence to show why a protective order should not be issued. What is difficult is that in cases where there is a separate criminal domestic violence case, the protective order hearing will usually be scheduled well before the criminal case has resolved. This means that anything the accused says in court at the protective order hearing can be used against them in the criminal case.  An experienced defense attorney knows how to navigate the complex inter-play between the criminal case and the protective order case.

While a protective order itself is not a criminal charge, violation of a protective order is a separate and serious criminal charge.  Violation of a protective order is a serious offense in Virginia.  The first offense for violating a protective order is a Class 1 Misdemeanor, meaning the maximum penalty is up to 12 months in jail, and/or a fine of up to $2,500; however, a first offense carries a mandatory jail sentence of one day upon conviction.  Subsequent violations carry increasingly severe mandatory penalties.  

Usually a protective order in a domestic case will prohibit the person from having any contact with their family member.  Many people don’t realize that you can be charged and arrested for violating a protective order for any kind of contact whatsoever.  For example, a single text message or phone call can result in a charge for violation of a protective order.  And in cases where there is a pending domestic violence criminal charge, any new charge for violating a protective order can result in the person’s bail being revoked.  This means that a person with no prior criminal convictions could end up spending weeks or even months in jail awaiting trial.

Furthermore, just being subject to a protective order means that conduct that would otherwise not be illegal becomes a crime.  For example, the minute a person becomes subject to any protective order they are no longer able to legally transport or purchase a firearm, and doing so is another Class 1 Misdemeanor.  Just being subject to a protective order can also have serious implications for certain kinds of employment.  

If you are subject to a protective order you need experienced counsel to ensure that you achieve the best possible outcome in your case.  Contact the attorneys at Dischley Law today for a free consultation to learn how we can help.  

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