Much like a restraining order, a protective order is an injunction (court order) which imposes rigid restrictions on the recipient. Any Utah resident can request a protective order from the courts, provided they meet certain requirements and claim they were harassed, physically assaulted, or threatened with violence. A protective order acts as a powerful legal shield against the respondent, or the person who is subject to the order. But what happens if the respondent allegedly violates the order? Salt Lake City criminal defense lawyer Darwin Overson explains the penalties and consequences – including the impact on probation and parole – and discusses how respondents can seek to have a protective order lifted without exposing themselves to criminal charges.
What Sort of Restrictions Do Utah Protective Orders Impose?
It is important to note that, in Utah, a protective order under the Cohabitant Abuse Act is only available against “cohabitants.” This means spouses, boyfriends, girlfriends, parents, siblings, roommates, etc. who live together. These protective orders, unlike general “restraining orders” available in some states, are to protect people from the abuse of people who live with them. Additionally, these orders are to protect against abuse or the likelihood of abuse; a protective order would not be available against, for example, a roommate who repeatedly steals from you.
A separate act, the Dating Violence Protection Act, allows protective orders for dating partners who do not live together. This act only applies to people over the age of eighteen who are in a dating relationship. The dating relationship does not need to be sexual in order to attain a protective order.
Utah residents who are concerned about a threat to their personal safety can seek a protective order by completing and filing a six-page petition called a Request for Protective Order. If the judge decides to grant the request upon reviewing the petition, the petitioner will be protected under a Temporary Protective Order until the hearing, which is typically scheduled a few weeks later.
At the hearing, the respondent will have the opportunity to challenge the petitioner’s allegations. If the respondent is successful, the order will be dismissed – but if the petitioner prevails, the judge will upgrade the order from a Temporary Protective Order to a Final Protective Order.
Whether an order is granted on a short-term or long-term basis, in either case the Respondent must abide by its rules and restrictions for the duration of the order’s life. Depending on the details specific to the situation, an order’s restrictions might prohibit the respondent from:
- Hurting or harassing the petitioner, including the petitioner’s children and any other cohabitants (such as a sibling or roommate).
- Going within a certain distance of the petitioner’s school, workplace, car, and/or residence.
- Possessing weapons, including gun possession, even if the respondent has a permit.
A Protective Order can also grant temporary possession of a residence to the petitioner, effectively kicking the respondent out of his or her home. An Order can even grant the petitioner child custody, regardless of whether the petitioner and respondent are married or divorced.
Faced with such extreme restrictions – some of which interfere with the parent-child relationship – some respondents attempt to find loopholes, or even deliberately violate an Order’s terms. While the frustration of being separated from your children, home, and/or possessions is understandable, it is extremely important that respondents do not violate protective orders. Not only are the consequences of a violation severe – there are also better, more effective ways to safely and legally challenge an order with which the respondent is dissatisfied.
Consequences for Violating a Utah Protective Order
If the petitioner claims that you violated the order, and there is probable cause to support the petitioner’s allegations, you are subject to immediate arrest – and no warrant is necessary. This is provided by Utah Code § 77-36-2.4, which states, “A law enforcement officer shall, without a warrant, arrest an alleged perpetrator whenever there is probable cause to believe that the alleged perpetrator has violated any of the provisions of an ex parte protective order or protective order.”
The same statute goes on to add that intentionally or knowingly violating a protective order is a Class A misdemeanor – on the same level with offenses like negligent homicide and simple assault. Under Utah’s laws, Class A misdemeanors can be penalized with fines of up to $2,500 and as long as a full year in jail. The statute clearly specifies deliberate violations.
Furthermore, a violation can have disastrous effects for individuals who are on probation, parole, or even those who are out on bail, even if those charges are completely unrelated to the alleged abuse. Probation, parole, and bail are contingent upon, among other conditions, remaining free of additional arrests and criminal charges. By violating protective orders, parolees, probationers, and those on bail jeopardize their freedom and risk being returned to jail or prison.
Each violation of the order is a separate misdemeanor, and each violation committed after the first has the potential to be a third degree felony – a much more serious crime which means increased fines and the possibility of more than a year in jail. Conviction of a felony can also have surprising effects, such as disqualifying you for certain jobs, making it impossible to work with children, and ending your right to own a gun.
If you feel that the terms of a protective order are inappropriate or unfair, do not simply ignore the order’s rules. The better way to approach the situation is to file a request for the protective order to be vacated or dismissed. Your attorney will represent you during hearings and help you prepare the prerequisite legal forms, which include the Respondent’s Request to Dismiss Protective Order, the Order on Request to Dismiss or Vacate Protective Order, and the Notice of Hearing on Request to Dismiss or Vacate Protective Order. Respondents use similar forms when requesting to vacate or dismiss Temporary Orders.
Additionally, the petitioner has their own legal power to request that protective orders be modified, vacated, or dismissed altogether.
Can I Get a Protective Order Vacated or Dismissed?
In short: yes, protective orders can be dismissed, and some even end automatically. If you are trying to get a protective order against you dismissed, make sure to contact a lawyer with experience in dealing with protective orders. The first step in getting a protective order dismissed is to make a motion to the court to dismiss the protective order. The process from there is different depending on how long the order has been in effect.
If the order has been in effect for more than two years, the court will dismiss the protective order if there is no longer a reasonable fear of abuse. This is determined by analyzing different factors, including:
- Past compliance with the order
- Whether the order was ever violated
- Claims of abuse by either party during the order
- Counseling or therapy for either party
- Impact on minor children of either party
- Other factors the court deems relevant
If these factors show the risk of abuse is gone, a protective order older than two years can be dismissed.
If the order has been in effect for one year or longer, then there are multiple reasons the protective order could be dismissed:
- The reason the order was issued no longer exists
- The person who originally got the protective order has repeatedly tried to provoke the respondent into violating the order
- The petitioner’s actions show there is no longer a fear of the respondent
If any of these can be shown, a court will dismiss a protective order that has been in effect for a year or longer. There must also be proof that there are no convictions or unresolved claims that the violation was violated.
Divorce can also have an effect on a protective order. If the petitioner and respondent are in the process of getting divorced, and the court finds that the protective order will no longer be necessary after the divorce, the protective order may be ended when the divorce is finalized. Additionally, if the parties are divorced and there is a protective order, the order will automatically end ten years after the divorce was finalized or ten years after the protective order was issued. This will not happen if there is a conviction for violating the order, or the fear of abuse still exists. Any period spent in prison does not count toward those ten years.
If the protective order was granted under the Dating Abuse Protection Act, it expires after 180 days. Protective orders issued under this Act are only for dating partners that do not live together which is why it expires so quickly compared to the limitations on other protective orders.
If you are not sure what type of order you have against you, or you are not sure when it went into effect, it is important to have an attorney review your case. If you are trying to get your protective order dropped, an experienced attorney can help get your protective order dropped in Utah.
Mutual Protective Orders
A mutual protective order is a situation where both parties each have a protective order against the other. The law tries not to let this happen, if possible. Part of the concern is that if someone fights back against their abuser in self-defense, a mutual protective order might label that self-defense as abuse. It would unfair to issue a protective order, along with all of its restrictions, against someone who was only defending themselves.
A court will only grant mutual protective orders, to protect each party against the other, when all of these conditions are met:
- Each party independently filed for a protective order,
- Each party shows that the other abused them,
- And each party shows that the violence was not in self-defense.
In order to fit these requirements, each party must be abusing the other. One party’s self-defense is not sufficient to get a restraining order against the self-defender.
Let a Salt Lake City Assault Attorney Fight for You
If you’ve been arrested for domestic violence, simple or aggravated assault, or other misdemeanor or felony crimes in Utah, you need a knowledgeable and experienced criminal defense lawyer on your side in court. To set up a free and completely confidential legal consultation, call attorney Darwin Overson at (801) 758-2287 today.