What Is an Emergency Protective Order in California? What Happens After a Domestic Violence Arrest
What an Emergency Protective Order Is
The short answer: an emergency protective order, or EPO, is a short-term restraining order that a police officer obtains by phone from an on-call judge at the scene of a domestic violence call, usually within an hour of the arrest. It is authorized by Family Code section 6250, it can order you to stay away from the other person, your home, and your children, and it expires on its own within about a week under Family Code section 6256. Violating it is a crime under Penal Code section 273.6. The EPO is almost always followed by a criminal protective order at arraignment and often by a family court restraining order, so what you do during the EPO's short life shapes the next year of your case.
Why the EPO matters more than its length suggests. The EPO is the first order in a chain. Prosecutors at the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, the San Bernardino Justice Center, the Rancho Cucamonga courthouse, and the Van Nuys and Pomona courthouses in Los Angeles County will ask for a criminal protective order at the first court date, and the alleged victim can walk into family court and request a domestic violence restraining order the same week. Judges deciding those later orders look closely at whether the EPO was honored. A text message, a drive past the house, or a call routed through a relative during the EPO period becomes the prosecution's strongest exhibit. A Riverside domestic violence defense attorney retained in the first days can keep the case from compounding.
How Police Get an Emergency Protective Order
The officer calls a judge from the scene. Under Family Code section 6250, a law enforcement officer may request an EPO when the officer asserts reasonable grounds to believe that a person is in immediate and present danger of domestic violence, that a child is in immediate and present danger of abuse or abduction, or that an elder or dependent adult is in immediate and present danger of abuse, or in stalking situations. Family Code section 6241 requires each county to have a judicial officer available by telephone around the clock to issue these orders. In Riverside and San Bernardino County, an on-call judge or commissioner typically approves the request within minutes, based only on what the officer reports.
What the judge must find. Family Code section 6251 requires the judicial officer to find reasonable grounds to believe that immediate and present danger exists and that an EPO is necessary to prevent the occurrence or recurrence of domestic violence, child abuse or abduction, or elder abuse. The restrained person is not consulted, not present, and not entitled to a hearing before the order issues. That is why the EPO is short and why it cannot be extended; anything longer requires a filing in court with notice to you.
The form and service. The EPO is issued on Judicial Council form EPO-001. Family Code section 6253 requires the order to state the grounds, the date and time it expires, the address of the superior court, and a notice that the protected person may seek a longer restraining order. The officer serves the restrained person, usually at the jail or at the scene, and files the order with the court. If you were booked, you will typically receive the EPO with your release paperwork, and you are bound by it from the moment you are served, even if you are released hours later.
What an Emergency Protective Order Can Order
Personal conduct and stay-away terms. Family Code section 6252 allows the EPO to include the protective orders described in Family Code section 6320, which means no contact of any kind, including texts, calls, email, social media messages, and contact through third parties, plus an order to stay a stated distance away from the protected person, their home, their workplace, and their vehicle. The stay-away distance is written on the form and controls, whatever the other person later tells you.
A move-out order. The EPO can include an order under Family Code section 6321 excluding you from the family home, even if your name is on the lease or the deed. Officers commonly include this term when the parties live together. You may retrieve clothing, medication, and work items only through a civil standby arranged with the police department, and you should not return alone, even if the other person invites you.
Temporary custody of children. Family Code section 6252 also allows the EPO to give temporary care and control of a minor child to the protected parent. This is the term that catches parents off guard: a weekend arrest can mean no contact with your children until the order expires or a court changes it, and the family court will later weigh a domestic violence finding under Family Code section 3044, which creates a presumption against awarding custody to a parent found to have committed domestic violence. Our guide on how a domestic violence arrest affects child custody explains what to do in the first week to protect your parenting time.
Firearms. Any person restrained by a protective order, including an EPO, is prohibited from owning or possessing firearms under Family Code section 6389, and possessing a firearm while subject to the order is a separate crime under Penal Code section 29825. Officers at a domestic violence scene are also required by Penal Code section 18250 to take temporary custody of any firearm in plain sight or found during a lawful search. If you own guns that the police did not seize, talk to a lawyer immediately about surrendering them to law enforcement or a licensed dealer and documenting it, because the later criminal protective order will require proof.
How Long an Emergency Protective Order Lasts
Five court days or seven calendar days, whichever comes first. Family Code section 6256 provides that an EPO expires at the earlier of the close of judicial business on the fifth court day after issuance or the seventh calendar day after issuance. The exact date and time are printed on the form. A Friday night arrest in Corona or Fontana therefore produces an order that typically runs through the following Friday.
It cannot be renewed, but it is almost always replaced. The EPO is designed to bridge the gap until a court can act with notice. Before it expires, three things can happen. The prosecutor can request a criminal protective order under Penal Code section 136.2 at arraignment. The protected person can file for a domestic violence restraining order in family court under Family Code section 6300 using form DV-100 and obtain a temporary order on DV-110 without a hearing. Or nothing is filed and the order simply lapses. Do not assume the third outcome; check the court's online case index and talk to a lawyer before resuming any contact.
What Replaces the EPO: The Criminal Protective Order
The CPO at arraignment. At the first court appearance the District Attorney will ask the judge to issue a criminal protective order on form CR-160 under Penal Code section 136.2. The judge chooses between a full no-contact order and a peaceful contact order, which allows contact as long as it is not harassing, threatening, or violent. The CPO lasts for the life of the criminal case and, after a conviction, can be extended for up to ten years in domestic violence cases. Our guide to the criminal protective order under Penal Code 136.2 explains how to argue for peaceful contact.
How to get peaceful contact or a modification. Judges in Riverside and San Bernardino County domestic violence courts generally want to hear from the protected person before loosening a no-contact order, and many prosecutors will not agree without that input. The protected person can submit a written statement or appear at the hearing. Your lawyer should prepare that request for the arraignment or the first pretrial date rather than waiting, because the longer a full no-contact order has been in place, the harder it is to change. The judge will also want to know the status of any firearms, whether you have housing elsewhere, and whether there have been any violations.
The two orders can overlap. If the family court issues a DVRO and the criminal court issues a CPO with different terms, Penal Code section 136.2 contains a priority rule under which the more restrictive criminal order generally controls regarding contact, while the family court order governs custody and visitation. Follow the most restrictive term in either order until a lawyer confirms otherwise. We represent clients on both sides of this problem through our domestic violence restraining order practice and our child custody practice.
What Happens If You Violate an Emergency Protective Order
It is a crime and a new arrest. Penal Code section 273.6 makes any intentional and knowing violation of a protective order, including an EPO, a misdemeanor, and a violation involving violence or a second violation within a defined period can be charged as a wobbler. Penal Code section 836, subdivision (c), requires officers to arrest a person they have probable cause to believe has violated a domestic violence protective order, so a report of contact usually means a second trip to jail rather than a warning. Our guide to violating a restraining order under Penal Code 273.6 covers the elements and defenses.
It wrecks the underlying case. A violation gives the prosecutor a second charge, a reason to ask for higher bail or a custody hold, and an argument that you cannot follow orders when the defense later asks for diversion, peaceful contact, or probation instead of jail. The protected person's willingness to communicate with you is not a defense; the order binds you, not them. Save any messages the other person sends you, do not respond, and give them to your lawyer, because they often matter later for credibility and for the family court case. Our articles on how police use your text messages and what makes a criminal case weak explain why.
The Underlying Domestic Violence Case
What you were likely arrested for. Most EPOs follow an arrest for domestic battery under Penal Code section 243, subdivision (e)(1), or corporal injury under Penal Code section 273.5, sometimes with criminal threats under Penal Code section 422 or vandalism under Penal Code section 594. The District Attorney, not the alleged victim, decides whether to file, and a victim who wants to drop the case does not end it. Our guides to domestic battery and corporal injury to a spouse explain the elements and defenses.
The first court date. Arraignment in Riverside County and San Bernardino County domestic violence cases typically happens within a few weeks of a cite-and-release or within 48 hours if you stayed in custody under Penal Code section 825. The court issues the CPO, takes a not guilty plea, and sets a pretrial date. Our articles on what happens at arraignment in Riverside County and what happens next after being charged walk through the sequence.
Why the first week decides the case. The evidence in a domestic violence case is usually the 911 call, the body camera interview, photographs of injuries, and the parties' statements. Crawford v. Washington (2004) 541 U.S. 36 and Davis v. Washington (2006) 547 U.S. 813 limit the prosecution's ability to use a non-testifying victim's statements to police, which is why prosecutors work hard to keep the victim cooperative and why anything you say to the officer who calls the next day, or to the other person, fills that gap. Our guide on what not to say to police applies with full force here. Resolution options range from dismissal and diversion under Penal Code section 1001.36 to a plea with the 52-week batterer intervention program; see our overview of how to get criminal charges dismissed.
Mistakes to Avoid While an EPO Is in Effect
Going home to talk it out. The most common violation is the restrained person returning to the house because the other person called and said it was fine. The order does not allow it, a neighbor or relative reports it, and the second arrest follows. Arrange a civil standby through the police department for belongings and stay with family or friends until the order is modified.
Contact through children, relatives, or social media. Asking a sibling to pass along a message, commenting on the protected person's post, or texting about the children's schedule all count as contact. If there is a genuine need to coordinate child exchanges, your lawyer can ask the criminal court for a peaceful contact order limited to that purpose or ask the family court for a custody order with an exchange protocol.
Ignoring the family court papers. If you are served with a DV-100 request and a DV-110 temporary order, you have a hearing date, usually within about three weeks, and you must file a response on form DV-120 and appear. A restraining order granted by default lasts up to five years, carries the custody presumption under Family Code section 3044, and continues the firearm ban. Many people also need advice on whether to testify at that hearing while the criminal case is pending, because the testimony can be used in the criminal case.
Waiting to hire a lawyer until arraignment. The EPO period is when a defense lawyer can send a preservation letter for surveillance and 911 audio, gather the texts and photographs that help you, prepare the peaceful contact request, and sometimes persuade the filing deputy to file a lesser charge or none at all. Our guide on what prosecutors look at before filing charges explains that window, and our flat-fee criminal defense pricing makes early representation predictable.
Frequently Asked Questions
How long does an emergency protective order last in California?
Up to about a week. Under Family Code section 6256, an EPO expires at the earlier of the close of court business on the fifth court day after it was issued or the seventh calendar day after issuance. The expiration date and time are printed on the EPO-001 form, and the order cannot be extended, although it is usually replaced by a criminal protective order or a family court restraining order.
Can I contact my spouse if they contact me first during an EPO?
No. The order restrains you, not the protected person, and their invitation is not a defense to a charge under Penal Code section 273.6. Do not respond, save the messages, and give them to your attorney, who can use them to seek a peaceful contact order from the court.
Can an emergency protective order keep me from seeing my kids?
Yes, temporarily. Family Code section 6252 allows the EPO to award temporary care and control of a child to the protected parent. Once the EPO expires, custody is governed by any family court order, and a later domestic violence finding triggers the presumption in Family Code section 3044, so it is important to get a family law attorney involved early.
Do I have to give up my guns because of an emergency protective order?
Yes. Family Code section 6389 prohibits a person restrained by a protective order from owning or possessing firearms, and possession while the order is in effect is a crime under Penal Code section 29825. Surrender firearms to law enforcement or a licensed dealer promptly, keep the receipt, and expect the criminal court to require proof when it issues the criminal protective order.
What happens when the EPO expires if no charges have been filed?
The order lapses, but the case may not be over. The District Attorney has up to one year to file most misdemeanors under Penal Code section 802, and the protected person can still request a family court restraining order. Check the court's case index and talk to a lawyer before resuming contact or moving back home.
Can I fight an emergency protective order?
Not directly, but you can fight what follows. The EPO issues without a hearing and expires within days, so there is no practical way to contest it. The real fights are the criminal protective order at arraignment, where you can seek peaceful contact, and the family court restraining order hearing, where you can file a DV-120 response and present evidence.
Talk to a Domestic Violence Defense Lawyer Today
Gramling Law Group defends domestic violence charges and handles the protective orders that follow them at the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, the San Bernardino Justice Center, the Rancho Cucamonga courthouse, the Van Nuys and Pomona courthouses, and the Central Justice Center in Santa Ana, serving the Inland Empire, Los Angeles County, Orange County, and Southern California, in both criminal and family court. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options so you can get a lawyer involved during the EPO period, when it matters most. Call (909) 654-4575 or contact us through this website for a consultation.
This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
Related Guides From Gramling Law Group
Learn more about our domestic violence criminal defense practice serving the Inland Empire, Los Angeles County, and Southern California.
We handle domestic violence arrests and the restraining order cases that follow them in Riverside, Corona, and San Bernardino, throughout the Inland Empire, and in family court through our domestic violence restraining order practice.
Gramling Law Group
3600 Lime St, Bldg 2, Riverside, CA 92501
Phone: (909) 654-4575
Serving the Inland Empire, Los Angeles County, Orange County, and all of Southern California except San Diego in family law and criminal defense.
Follow Daniel Gramling on Instagram: @californiafamilylawyer
Comments