You hear the term “due process” thrown about frequently. Often, it is in the context of criminal convictions being overturned on appeal because the police denied someone’s due process rights. Typically, this type of due process is referred to as substantive due process. There is another type of due process, known as procedural due process. This is the type of due process that requires, for example, that you be provided notice that you have a court hearing and without the required notice being provided, the results of the hearing are essentially void. This type of procedural due process is an issue that is often raised in family abuse cases, especially when the issue of protective orders arises.

Protective Orders in Family Abuse Cases in Virginia

Virginia authorizes three different types of protective orders in family abuse cases:

Emergency protective orders (EPOs)

Preliminary protective orders (PPOs) and

Full protective orders

Each is relevant in a discussion like this but EPOs and PPOs are the focus here because of the implication on the due process rights of the accused.

Emergency Protective Orders

Everyone understands the need for protective orders when it comes to cases of family abuse.  One must assume that in domestic situations that require police intervention there are already violence and temperament issues that are fueling the situation. The idea of the EPO, then, is to provide a cooling-off period and allow cooler heads to prevail while separating the parties and limiting contact between already aggrieved people.

In Virginia, an EPO can be issued in family abuse situations in the following circumstances:

There is a warrant issued or will be issued for family abuse assault and battery and there is probable danger of further acts of violence.

There are reasonable grounds to believe family abuse has been committed and there is probable danger of additional violence.

EPOs are almost always issued without notice to the defendant and without their participation.  They are only good for 72 hours.

Preliminary Protective Orders

A PPO is issued upon application to the court, as well. They are used to supplement an EPO but there must be a hearing within 15 days of issuance. They can be issued without notice to a defendant just like an EPO with a showing that the victim has either suffered family abuse in the recent past or faces immediate and present danger of future abuse.

Both types of protective orders, then, can be issued ex parte, meaning they can be issued without the knowledge or participation of the defendant. This is where due process rights can be implicated.

Procedural Due Process Rights

Ordinarily, when you are the subject of a legal proceeding that concerns you, you have the right to be present and to participate. Ex parte proceedings, by definition, prohibit you from exercising your rights.

As concerns EPOs, it is generally settled that because of the short duration of the order (72 hours) and with the intended purpose of creating a cooling off period, a defendant’s due process rights are not unduly impacted or restricted.

With PPOs, however, the defendant does have certain procedural rights. Many courts will not issue ex parte PPOs without a substantial showing of the likelihood of imminent harm. Further, a defendant may request modification of a PPO. Finally, if a PPO has been issued ex parte, the issuance of the order cannot be used at trial as evidence to prove an offense has occurred.

The area of due process is nebulous at best and impossible to understand for most people, at worst. If you are facing the prospects of a protective order in Northern Virginia, you need to take steps to ensure that your rights are protected. Northern Virginia Criminal Defense Lawyer Jad Sarsour is a skilled and experienced criminal defense attorney who has defended hundreds of clients facing protective orders. If you find yourself in this position, give him a call today at (571) 316-2639 to set up your initial consultation. Your due process rights are not predicated by your knowledge of the law.  However, the best way to protect them is to have a seasoned lawyer who knows the law well.

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The Fairfax Criminal Defense Law firm of Jad Sarsour, represents clients throughout Northern Virginia and regularly appears in all courts, including: Fairfax County Fairfax City | Prince William County | Arlington County Alexandria City Loudoun County | Federal Court (Eastern District/VA) 

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