Can I Fight a Protective Order in Virginia?

One of the least-enforced provisions in Virginia law is Section 40.1 of the Virginia Code, which details the penalties for making false statements on a protective order application. That’s partially due to a lack of prosecutorial interest and partially due to the nature of false statement cases. Victims, witnesses, and defendants very rarely intentionally lie. They simply remember facts selectively and share those selective memories in court.

Technically, defendants are presumed innocent until proven guilty. But in protective order cases, the opposite presumption often applies. The alleged victim’s selective memory testimony is sufficient to obtain a criminal or civil protective order in Virginia. Domestic violence is such a big problem in Virginia that alleged victims usually get the benefit of the doubt. Therefore, a Virginia DUI defense attorney must prove the defendant’s innocence in court. That’s a daunting task, but certainly not an impossible one.

What’s at Stake

Protective orders are much more than cooling-off orders. They usually include very restrictive conditions, such as:

• No contact with the alleged victim for any reason, even child visitation or related matters,
• Staying away from the alleged victim at all ties, even if the two parties share a residence or work at the same place,
• Attending anger management or other classes, which are usually live, daytime or weekend classes,
• Paying money, such as reimbursement for medical bills, and
• Transforming what should be a private matter between two people into a matter of public record that anyone can view.

Temporary ex parte orders, which the judge may issue based solely on the alleged victim’s affidavit, are usually valid for fifteen days. After notice and hearing, a judge may grant a long-term protective order that could last two years or longer.

Protective Order Eligibility

At the hearing, a Leesburg criminal defense attorney often challenges the alleged victim’s legal ability to obtain a protective order. If the alleged victim isn’t eligible for a protective order, none of the other facts matter. Instead, the judge throws the case out of court.

Virginia has a very restrictive definition of domestic violence. A person commits “family abuse” if s/he commits any act involving violence, force, or threat that results in physical injury or places the alleged victim in reasonable fear of death, sexual assault, or bodily injury.

Stalking is a good example. In many states, if Ben spies on his ex-wife while she’s at work, Ben’s ex-wife is entitled to a protective order. Virginia is different. Stalking is unsettling. But it usually doesn’t involve force, a threat of force, or cause a reasonable person to fear for his/her life. It certainly doesn’t involve physical injury.

On a related note, a family member is usually anyone related by blood or marriage. Casual dating partners aren’t related by blood or marriage. The line between casual dating partners and serious dating partners, who could qualify as family members, is very blurry.

Negotiated Settlements

Unless the defendant has a solid alibi, protective order matters are difficult to defend on the merits. However, a negotiated settlement may be an option.

Virginia judges have broad authority to make consent decrees. Basically, a consent decree is a written agreement between two parties which they submit to the court. Once the judge signs off on it, the agreement becomes legally binding.

A consent decree could have the same provisions as a protective order. But a consent decree doesn’t have the dreaded “protective order” label.

Such a proposal often backs an alleged victim into a corner. If s/he doesn’t agree to it, even though it’s like a protective order in every way except the name, the alleged victim’s motives are very questionable. Basically, it looks like the alleged victim doesn’t want or need protection. The alleged victim just wants the defendant to get in trouble.

Rely on a Dedicated Loudoun County Lawyer

There’s a big difference between an arrest and a conviction in criminal law. For a free consultation with an experienced criminal defense attorney in Leesburg, contact Simms Showers, LLP, Attorneys at Law. Convenient payment plans are available.

Source:

law.lis.virginia.gov/vacode/title40.1/chapter3/section40.1-51.4:2/