PROTECTIVE ORDERS

Courts will often issue protective orders in order to protect someone’s safety. Violation of temporary or extended protective orders is a crime that can carry harsh penalties.

What is the legal definition of a Protective Order?

Protective orders are defined in NRS 200.591; 200.592; 200.594; and 200.597.

NRS 200.591 – Court may impose temporary or extended order to restrict conduct of alleged perpetrator, defendant or convicted person; penalty for violation of order; dissemination of order; notice provided in order.

In addition to any other remedy provided by law, a person who reasonably believes that the crime of stalking, aggravated stalking or harassment is being committed against him or her by another person may petition the court of competent jurisdiction for a temporary or extended order directing the person who is allegedly committing the crime to:
1. Stay away from the home, school, business or place of employment of the victim of the alleged crime and any other location specifically named by the court.
2. Refrain from contacting, intimidating, threatening or otherwise interfering with the victim of the alleged crime and any other person named in the order, including, without limitation, a member of the family or the household of the victim of the alleged crime.
3. Comply with any other restriction which the court deems necessary to protect the victim of the alleged crime or to protect any other person named in the order, including, without limitation, a member of the family or the household of the victim of the alleged crime.
If a defendant charged with a crime involving harassment, stalking or aggravated stalking is released from custody before trial or is found guilty at the trial, the court may issue a temporary or extended order to provide as a condition of the release or sentence that the defendant:
1. Stay away from the home, school, business, or place of employment of the victim of the alleged crime and any other location specifically named by the court.
2. Refrain from contacting, intimidating, threatening, or otherwise interfering with the victim of the alleged crime and any other person named in the order, including, without limitation, a member of the family or the household of the victim of the alleged crime.
3. Comply with any other restriction which the court deems necessary to protect the victim of the alleged crime or to protect any other person named in the order, including, without limitation, a member of the family or the household of the victim of the alleged crime.
A temporary order may be granted with or without notice to the adverse party. An extended order may be granted only after:
1. Notice of the petition for the order and of the hearing thereon is served upon the adverse party pursuant to the Nevada Rules of Civil Procedure; and
2. A hearing is held on the petition.
If an extended order is issued by a justice court, an interlocutory appeal lies to the district court, which may affirm, modify or vacate the order in question. The appeal may be taken without bond, but its taking does not stay the effect or enforcement of the order.
Unless a more severe penalty is prescribed by law for the act that constitutes the violation of the order, any person who intentionally violates:
1. A temporary order is guilty of a gross misdemeanor.
2. An extended order is guilty of a category C felony and shall be punished as provided in NRS 193.130.
Any court order issued pursuant to this section must:
1. Be in writing;
2. Be personally served on the person to whom it is directed; and
3. Contain the warning that violation of the order:
  1. Subjects the person to immediate arrest.
  2. Is a gross misdemeanor if the order is a temporary order.
  3. Is a category C felony if the order is an extended order.
A temporary or extended order issued pursuant to this section must provide notice that a person who is arrested for violating the order will not be admitted to bail sooner than 12 hours after the person’s arrest if:
1. The arresting officer determines that such a violation is accompanied by a direct or indirect threat of harm;
2. The person has previously violated a temporary or extended order for protection; or
3. At the time of the violation or within 2 hours after the violation, the person has:
  1. A concentration of alcohol of 0.08 or more in his or her blood or breath; or
  2. An amount of a prohibited substance in his or her blood or urine that is equal to or greater than the amount set forth in subsection 3 of NRS 484C.110.

NRS 200.592 – Petition for order: Deferment of costs and fees; free information concerning order; no fee for serving order.

The payment of all costs and official fees must be deferred for any person who petitions a court for a temporary or extended order pursuant to NRS 200.591. After any hearing and not later than final disposition of such an application or order, the court shall assess costs and fees against the adverse party, except that the court may reduce them or waive them, as justice may require.
The clerk of the court shall provide a person who petitions the court for a temporary or extended order pursuant to NRS 200.591 and the adverse party, free of cost, with information about the:
Availability of temporary and extended orders pursuant to NRS 200.591;
Procedure for filing an application for such an order; and
Right to proceed without legal counsel.
A person who obtains an order pursuant to NRS 200.591 must not be charged any fee to have the order served in this State.

NRS 200.594 – Duration of orders; dissolution or modification of temporary order.

A temporary order issued pursuant to NRS 200.591 expires within such time, not to exceed 30 days, as the court fixes. If a petition for an extended order is filed within the period of a temporary order, the temporary order remains in effect until the hearing on the extended order is held.
On 2 days’ notice to the party who obtained the temporary order, the adverse party may appear and move its dissolution or modification, and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.
An extended order expires within such time, not to exceed 1 year, as the court fixes. A temporary order may be converted by the court, upon notice to the adverse party and a hearing, into an extended order effective for no more than 1 year.

NRS 200.597 – Order to be transmitted to law enforcement agencies; enforcement.

Each court that issues an order pursuant to NRS 200.591 shall transmit, as soon as practicable, a copy of the order to all law enforcement agencies within its jurisdiction. The copy must include a notation of the date on which the order was personally served upon the person to whom it is directed.
A peace officer, without a warrant, may arrest and take into custody a person when the officer has probable cause to believe that:
An order has been issued pursuant to NRS 200.591 to the person to be arrested;
The person to be arrested has been served with a copy of the order; and
The person to be arrested is acting in violation of the order.
Any law enforcement agency in this State may enforce a court order issued pursuant to NRS 200.591.

Isn’t this just a Restraining Order?

Yes. Protective Orders are generally called “Restraining Orders.”

Okay, so if I have an Order issued against me, what does that mean?

Each Protection Order is different and is tailored to the unique situation of the people involved. Generally, the court will have to determine if the person seeking the Order (the “victim”) is reasonably afraid of being in close proximity to the person who they are seeking protection from (the “subject” of the Order).

The Judge will have the discretion to determine the specific terms of the Protection Order. However, the purpose of a Protection Order is to keep the subject away from the places that the victim spends most of their time (the “locations”).

Typically, Judges will grant Protection Orders for the following locations:

The victim’s home;
The victim’s job, or jobs if they have more than one;
The victim’s school, if they are in school;
The school(s) or daycare(s) attended by the victim’s child or children;
The victim’s gym or other club or group;
Any other place the victim can regularly be found.

Protection Orders, by their nature, are extremely restrictive. Generally, they require that the subject remain at least 100 yards away from the victim or any of the places that the victim frequents. This can become difficult if, for example, the victim and subject are members of the same group or club.

Protection Orders become even more restrictive when the victim and subject have children together. Protection Orders can order temporary physical custody to one party or the other (though, in practice, if the Court orders temporary physical custody it is to the victim and not the subject), so that it is easier to enforce the Protection Order.

Please Note: If you are interested in applying for a TPO against someone, you should speak with an attorney ASAP. Protective Orders can be counter-productive in some cases because they contain the exact address of the places that the subject is required to stay away from. If you are hiding from someone and do not want them to find you, then obtaining a Protective Order could disclose the addresses of the places you frequent to the person you are hiding from.

Please Also Note: If there is a Protection Order issued against you, you are also prohibited from contacting the victim using any ‘long-distance’ means. In other words contacting the victim using phone calls, texts, emails, online messages, and even the postal service is a violation of a protection order.

Are Restraining Orders permanent?

No. There is no such thing as a “Permanent Protection Order.” There are only two categories of Protection Order: the Temporary Protection Order (often shortened to “TPO”) and the Extended Protection Order.

So, what is the difference?

Obviously, the Extended Protection Order “extends” longer than a Temporary Protection Order. A Temporary Protective Order can only be issued for a period of up to 30 days. An Extended Protection Order can be designated for as long as the Court desires, up to one year.

Can someone file for either a Temporary Order or an Extended Order?

No. In order to obtain an Extended Order, you must first file for a TPO. TPO’s are generally granted in the following cases:

Domestic Violence;
Stalking;
Harassment (and Harassment in the Workplace);
Sexual Assault;
Child Abuse; and
Any other crime or lawsuit where one person is reasonably afraid to have another person nearby.

After the application for a TPO has been filed, the victim will go in front of a Judge so the Judge can hear the reasons for filing the application. The victim will then have to show the Judge that they have a reasonable fear for their safety. If the Judge agrees that there is cause, or reason, for the victim to fear for their safety, then they will issue and sign a TPO. However, even though applications for a TPO should be heard by a Judge before being issued, realistically, they do not have to be. A Judge can decide to issue or deny the TPO without a hearing, or they can Order a hearing to get more information.

Once a judge has granted a TPO, the order must be served on the person you are seeking protection from. The TPO does not become effective until it has been served on the person you are seeking protection from. Once served, it will be effective for 30 days.

Please Note: If you do not get the TPO served within 30 days of the Judge signing the order, then the TPO will expire, and you will be required to file and apply for a new one.

Someone took out a TPO against me, but I didn’t even know until I was served. Is that legal?

Yes, unfortunately. If someone wishes to get a TPO against you, there is no requirement that you have to be given notice of the application or of the hearing. However, as already mentioned, if you are served with a TPO, be sure to look at the date on the Order. If it was signed more than 30 days before you are served, then it has expired and is invalid.

What about the Extended Protection Order? How does that work?

An Extended Protection Order is pretty much exactly what it sounds like. It simply extends the TPO for up to one more year.

Once a TPO has been properly served on someone. The person who applied for the TPO can then file for an Extended Protection Order.

However, the application must be filed within the 30 days that the TPO is valid, otherwise, there is nothing to “extend” and the application will be denied.

If the Judge decides to grant the Extended Protection Order, it will go into effect on the day that it is signed and will be effective for however long the Judge determines, up to one year.

Please Note: If someone has taken out a TPO against you, and has properly filed for an Extended Protection Order, the TPO will remain in effect until the hearing on the application for the Extended Protection Order. This is one reason why it is important to get an attorney if you have a TPO issued against you. An experienced attorney will be able to shorten the time between the application for the Extended Protection Order and the hearing.

Can the Court issue an Extended Protection Order without me knowing?

No. There are more steps to acquiring an Extended Protection Order. After the application for the Extended Protection Order is ordered, the subject of the Order must be served with Notice of the hearing. Once the subject is served with notice, then the Court will have a hearing and determine whether the Order should be issued.

However, just because the subject of the Order must be served notice of the hearing does not mean that the subject must attend the hearing. If notice has been properly served, and there is evidence of the service, then the Court assumes that the subject will appear at the hearing. If the subject does not appear, then the Court will assume that it is by choice, and will likely issue the Extended Protective Order since there is no one there to provide a counter-argument.

If I miss the hearing, the Order will be issued and there’s nothing I can do?

Actually, anytime an Extended Protection Order is granted, the subject of the Order can appeal it to the District Court. So, even if you appeared at the hearing and the Court granted it, you still have the option.

However, the Order will still go into effect the day it is originally issued, and will remain in effect until it either expires, is modified, or vacated. If you violate the Order between the date it is issued and the hearing, you can still be arrested for Violation of a Protection Order.

Please Note: If there is an Order in effect, and the subject and victim are both required to appear at a hearing, it will not be considered a violation of the order because the Court is requesting or requiring your appearance.

Can someone take out another Extended Protection Order after the one-year expires?

Sort of. Generally, the Extended Protection Order will set a Court date for the day that the Order expires. If the person who requested the Protection Order still wants it in place, they can go to the hearing on that date and request that the Judge renew the Order for another year. That person will only need to show that they are still reasonably in fear, and the Judge can extend the order up to one more year.

Is there anything else I should know?

Technically, Protection Orders can be issued by either the Family Court or the Justice Court.

When the person seeking the Protection Order is seeking it against someone they are, or have been, romantically involved with (in other words, a domestic violence protection order), then the order should be sought in, and issued by, the Family Court. For all other types of protective orders, the application should be filed in Justice Court.

Also, once a Court has issued a Protection Order, they are required by law to send a copy to all of the law enforcement agencies in the Court’s jurisdiction. The statute states that this must be done “as soon as practicable” and must contain the date that the subject was actually served with the Order.

Any law enforcement agency may a Protection Order. In fact, an officer of a law enforcement agency may be able to arrest someone even if they do not have a warrant, so long as that officer believes that there is a valid and validly served Protection Order that the suspect has violated.

What are the possible penalties for violating a Protective Order?

The specific penalties depend on what the Order was issued for.

If the Protection Order (temporary or extended) was issued as the result of harassment in the workplace or domestic violence, then the crime will be charged as a misdemeanor, carrying with it possible penalties of:

Up to 6 months in a Detention Center; and/or
Possible fines up to $1,000.

If there was a TPO was issued because of stalking, harassment (not workplace harassment), sexual assault, or child abuse, then violating the Protection Order will be charged as a gross misdemeanor, carrying with it possible penalties of:

Up to 364 days in a Detention Center or Jail; and/or
Possible fines up to $2,000.

If there was an Extended Protection Order issued because of stalking, harassment (not workplace harassment), sexual assault, or child abuse, then violating the Protection Order will be charged as a category C felony, carrying with it possible penalties of:

Between 1 and 5 years in a Nevada State Prison; and
Possible fines up to $10,000.

Are there any Defenses?

Yes, of course there are. In fact, Libel is an extremely vague and difficult to prove charge. Some of the possible defenses include:

Improper Service – As already noted above, a TPO must be served on the subject of the Order within 30 days of issuance. Moreover, a TPO only becomes effective once it is served on the subject of the Order. Also, there are some restraining orders that absolutely must be served on the subject, in person, while others can be served on an agent of the subject, or on someone of sufficient age who is at the subject’s home. If you can show that you were not properly served the TPO, then the Order was not in effect, so you could not have violated it.
No Intent – Obviously it is impossible to know where someone else is at all times. Consequently, the court recognizes that there can often be accidental violations of Protection Orders. If you can show that you had no intent to violate the Order, and that you either accidentally violated the order, reasonably misunderstood something in the order, or were not of sufficient mental capacities to understand and abide by the order, then the charges against you should be dropped or dismissed.
Insufficient Evidence – As with any crime, the prosecution bears the burden of proving every element of the crime beyond a reasonable doubt. If the prosecution’s evidence is not strong enough to uphold this standard of proof, then the charges against you should be dropped or dismissed.

What should I do if I’ve been charged with Violating a Protection Order?

As with any crime, it is very important that you speak with an experienced criminal defense attorney as soon as possible so that you can discuss the specific circumstances as well as any defenses that may apply to your case.