BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Elaine K. Alquist, Chair A
2005-2006 Regular Session B
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AB 112 (Cohn)
As Amended May 31, 2005
Hearing date: June 14, 2005
Penal Code
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PROTECTIVE ORDERS :
PRECEDENCE OF EMERGENCY PROTECTIVE ORDERS
HISTORY
Source: Judge Margaret S. Johnson, Santa Clara County Superior
Court
Prior Legislation: AB 160 (Bates) - Ch. 698, Stats. 2001
Support: Los Angeles District Attorney's Office; Child Abuse
Prevention Council of Contra Costa
County; AFSCME; Peace Officers Research Association of
California; one
individual
Opposition:Family Law Section of the State Bar of California
Assembly Floor Vote: Ayes 76 - Noes 0
KEY ISSUE
SHOULD EMERGENCY PROTECTIVE ORDERS TAKE PRECEDENCE IN ENFORCEMENT
OVER ANY OTHER RESTRAINING OR PROTECTIVE ORDER, AS SPECIFIED AND
LIMITED?
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AB 112 (Cohn)
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PURPOSE
The purpose of this bill is to provide that emergency protective
orders take precedence in enforcement over any other restraining
or protective order, as specified and limited.
Current law authorizes a court to issue a civil or criminal
protective order to protect victims of domestic violence.
(Family Code 6300 et seq.; Penal Code 136.2.)
Current law authorizes a law enforcement officer to seek an
emergency protective order ("EPO") from a court 24 hours a day,
seven days a week, if any person or child is in immediate and
present danger of domestic violence or abuse, or in imminent
danger of abduction by a parent or relative. An EPO is
effective for up to seven days. The EPO must be entered into
the California Law Enforcement Telecommunications System
(CLETS). (Family Code 6240 et seq.; 6380.)
Current law further authorizes a law enforcement officer to seek
an EPO from a court if the officer has reasonable grounds to
believe that an individual is in immediate and present danger of
stalking. (Penal Code 646.91.)
Current law provides that criminal protective orders take
precedence over civil orders involving the same defendant.
(Penal Code 136.2(i)(2).)
This bill would revise this provision to provide for its
application "unless a court issues an (EPO as specified<1>) in
which case the (EPO) shall have precedence in enforcement over
any other restraining or protective order, provided the (EPO)
meets the following requirements:
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<1> Specifically, EPOs issued pursuant to Chapter 2 (commencing
with Section 6250) of Part 3 of Division 10 of the Family Code
or Section 646.91 of the Penal Code.
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(A) The emergency protective order is issued to protect one or
more individuals who are already protected persons under another
restraining or protective order.
(B) The emergency protective order restrains the individual who
is the restrained person in the other restraining or protective
order specified in subparagraph (A).
(C) The provisions of the emergency protective order are more
restrictive in relation to the restrained person than are the
provisions of the other restraining or protective order
specified in subparagraph (A)."
This bill also would clarify that an EPO issued as specified<2>
"shall have precedence in enforcement over any other restraining
or protective order, provided the emergency protective order
meets the following requirements:
(A) The emergency protective order is issued to protect one or
more individuals who are already protected persons under another
restraining or protective order.
(B) The emergency protective order restrains the individual who
is the restrained person in the other restraining or protective
order specified in subparagraph (A).
(C) The provisions of the emergency protective order are more
restrictive in relation to the restrained person than are the
provisions of the other restraining or protective order
specified in subparagraph (A).
This bill further would provide that EPOs meet the requirements
described above "shall have precedence in enforcement over the
provisions of any other restraining or protective order only
with respect to those provisions of the emergency protective
order that are more restrictive in relation to the restrained
person."
COMMENTS
1. Stated Need for This Bill
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<2> Id.
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The author states:
Currently, Penal Code Section 136.2 requires that
criminal court orders take precedence over civil
court orders. Generally this is not a problem,
but in some cases the criminal court allows there
to be peaceful contact between the defendant and
victim.
An Emergency Protective Order (EPO) is civil in
nature and is always issued as a result of some
police intervention which necessitates as stay
away/no contact order. The problem comes in where
there is a prior criminal order allowing contact,
it would, under current law, take precedence over
the EPO and jeopardize the victim's safety.
This bill is a solution to this problem for it
allows for the EPO to have precedence in
enforcement over all other protective orders for
the short 5 court calendar days that it is valid.
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2. What This Bill Does; Recent Amendments to Address Opposition
Concerns
As explained above, this bill would provide that emergency
protective orders ("EPOs") issued pursuant to either the Family
or Penal Code - which last either 5 court days or 7 calendar
days, whichever is shorter - would take precedence over any
other restraining or protective order - including those issued
by the criminal court - provided the EPO meets the following
requirements:
The emergency protective order is issued to protect one
or more individuals who are already protected persons under
another restraining or protective order.
The emergency protective order restrains the individual
who is the restrained person in the other restraining or
protective order specified above.
The provisions of the emergency protective order are
more restrictive in relation to the restrained person than
are the provisions of the other restraining or protective
order specified above.
This language would adjust and clarify existing law, which
provides that protective and restraining orders issued by the
criminal court take precedence over civil court orders. As
explained by the author, in some instances a criminal
protective order may allow for peaceful contact with the
protected party and, therefore, may need to be subordinate to a
subsequent emergency protective order. The bill was recently
amended to address concerns of some advocates that an emergency
order should only take precedence if it is issued to protect
the same protected party and restrain the same restrained party
as a preexisting order, and that more restrictive and unrelated
terms of preexisting orders remain in effect. The bill as
currently before the Committee incorporates these criteria.
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