The Many Problems of Criminal Mandatory Protection Orders in Colorado
A mandatory protection order (sometimes referred to simply as an “MPO” or a restraining order) is court order against a defendant (restrained party) in a criminal case which requires them to not harass, molest, intimidate, retaliate against, or tamper with any witness or the alleged victim of the crime (the protected person). These conditions will remain in effect until the final eventual end of a case, which if someone is found guilty or pleads guilty can potentially be years.
Criminal protection orders and restraining orders issued in criminal cases pursuant to C.R.S. 18-1-1001 are designed to protect the protected person from potential domestic abuse by the restrained person. It is a worthy goal, as there are no doubt cases in which this is a real concern. However, in Colorado local law enforcement agencies do not have discretion in whether to make an arrest or not when there is probable cause to believe that a domestic violence incident has occurred. No matter how minor, and no matter whether or not the alleged victim feels like a victim or not, and regardless of whether the alleged victim wants their loved one prosecuted or not, if the police are called regarding an incident between current or former intimate partners it is very likely that someone is going to be arrested. As many, if not most, domestic violence cases (particularly misdemeanors, but even many that are labeled as a felony) are minor incidents between usually loving people, court orders that issue a blanket domestic violence restraining order create real problems for real families. While well intentioned, these orders can be exceptionally burdensome for not only the defendant, but also their loved ones.
No Contact Provisions of Criminal Protection Orders
While the requirement mentioned above of no intimidation, harassment, punishment, etc. seems reasonable and is usually not too difficult for defendants to comply with, MPOs often impose additional conditions which can be much more disruptive to that person’s, and that family’s, life. Mandatory protection orders issued in cases involving domestic violence are particularly strict. In addition to not being allowed to do things such as harass or intimidate the witness or victim in a domestic violence case, the Defendant may not have contact of any kind with the victim. This obviously creates problems when a spouse is involved, particularly in situations where the couple has children, share a workplace together, or run a business together.
Even when a committed couple with an entangled life is not involved, criminal restraining orders can become very tricky for some people because it only applies in one direction. The alleged victim in a case is not prohibited from contacting and communicating with the defendant, but the defendant is not able to respond. This can be especially problematic in troubled relationships, because the alleged victim can say practically anything he or she wants short of actual harassment, and even go so far as to intentionally provoke the defendant. The defendant cannot respond without potentially facing further criminal consequences.
Vacate Home Provisions in Criminal Protection Orders
Setting aside the one-directional nature of mandatory protection orders, the no contact requirement might seem to make sense. However, the implications of MPOs can also be even more severe in other ways. For example, if a married couple who live together had a domestic dispute and one of them is arrested for a domestic violence charge, not being able to have contact can become a very problematic. Obviously, when a defendant cannot have contact with his or her spouse, it becomes impossible to stay in the shared home with that person. Accordingly, mandatory protection orders in domestic violence cases also require that the defendant vacate or stay away from the home of the alleged victim. For many defendants, this means that not only are they not afforded the comfort of their own homes, but they are forced to pay thousands of dollars to rent out an apartment or stay at a hotel for months on end.
The problem is only exacerbated when children are in the picture, even if they were not directly involved in any domestic violence dispute. When a defendant is not allowed to have contact of any kind with the victim and not allowed to return home, seeing his or her own children becomes very difficult. On top of simply making it harder for the defendant to see the kids, MPOs often make it nearly impossible for the defendant to help raise them for the duration of the criminal case. Of course, this affects the children as much as it affects the defendant, not to mention the other parent that often now has to act as a single parent until the order is vacated or modified.
These arrangements may be manageable for a short time, but criminal cases generally take months to come to a final resolution. Not being able to return to your own home or see your own children for months on end feels like punishment in itself, and is extremely disheartening to say the least.
Criminal Mandatory Protection Orders and the Second Amendment Right to Bear Arms
The Colorado Revised Statutes dictate that, while subject to a MPO in a criminal domestic violence case, the defendant is prohibited from possessing or controlling firearms or ammunition. The defendant that owns weapons has a few options to comply with this requirement, including legally transferring the firearm to a family member or another person, having a firearms shop licensed by the Federal Government hold the firearms, or having a law enforcement agency store the weapons. However, this author is unaware of a single law enforcement agency in Colorado that offers this service to defendants. There are some instances where someone working in law enforcement or the military can use a firearm for work purposes pursuant to federal law if permitted by the court, but those instances are few and far between. In nearly every case, possession of a firearms while under the purview of a domestic violence protection order is a violation of that order and can result in additional criminal penalties. Moreover, if one is convicted of a domestic violence offense, the temporary order from the court becomes lifelong and permanent as Colorado and Federal law do not permit one that is convicted of a domestic violence offense from owning or possessing firearms–permanently. There is no exception to this rule.
Miscellaneous Additional Problems of Criminal Mandatory Protection Orders
Criminal Mandatory Protection Orders can have other restrictions on a defendant’s conduct as well. For instance, if alcohol was involved in an incident, the conditions of the protection order will likely include not using alcohol or other drugs. As many bond conditions include an alcohol provision prohibiting alcohol as well and sometimes require random testing to ensure compliance, getting caught drinking on a random test can therefore lead to both violating bail-bond conditions as well as violating the mandatory protection order. Courts also have the power to add any additional reasonable provisions to criminal protection orders that they feel are appropriate.
Violating a Criminal Protection Order
Violating a criminal mandatory protection orders can not only lead to contempt of court, but also to a new class 1 misdemeanor charge, and can result in fines, probation, or jail time. Even a simple single text message can therefore have serious penalties.
What is the Solution?
The best and most thorough solution is getting the case dismissed or a defendant acquitted. As the 18-1-1001 protection orders in Colorado expire at the conclusion of the case, hastening the conclusion is the best way to deal with the order. However, in the meantime, or in cases where a plea is necessary or a conviction likely, it is possible to motion to the court to modify the protection order in ways that make it less burdensome to the defendant. If the protected party (the alleged victim) in a domestic violence case agrees, the Court will very often permit normal contact between the couple and even for the defendant to return home. It is imperative to make such requests as early in the case as possible so as to limit harm to the couple and family from prolonged separation and forced lack of communication.
If you find yourself in a criminal case with an MPO that is making it difficult to return home or see your children, you need an experienced and dedicated criminal defense attorney such as those at Peakstone Law Group, LLC on your side.
Having to go through criminal prosecution is difficult enough without the added problems caused by an MPO. If you are not able to see your children, if your job is at risk, or if you are experiencing any other significant difficulty from a mandatory protection order, you need a lawyer. A criminal defense attorney can argue on your behalf in court to get some provisions of your protection eased, or even lifted entirely. Also, in some cases, hiring an attorney may even pay for itself if it means you will not be forced to rent an apartment or hotel room. There is no reason you should have to go through an unreasonable burden because of a mandatory protection order. Contact Peakstone Law Group, LLC today to schedule a free consultation with one of our experienced domestic violence and protection order attorneys to learn about the process and your options.
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