Civil Protection Order

Washington Juvenile Court Cannot Issue No-Contact Order upon Conviction

June 30, 2021 | by Blair & Kim, PLLC

Washington juvenile courts may impose “local sanctions” for certain low level offenses committed by a juvenile offender. Local sanctions include up to 30 days confinement, up to 12 months community supervision, up to 150 hours community restitution, or up to a $500 fine. RCW 13.40.020(18). The juvenile court may impose conditions on a juvenile defendant sentenced to local sanctions pursuant to its authority to impose community supervision. If a juvenile defendant is sentenced to more than 30 days, however, he or she must be committed to DCYF. RCW 13.40.160. The juvenile offender may be subject to conditions as part of DCYF’s parole program after the sentence has been completed. Certain conditions are required under the parole program, while others are permitted. The statute specifically permits the secretary to prohibit the juvenile offender from having contact with specific people or classes of people. RCW 13.40.210(3)(b)(ix).

Recently, a juvenile defendant appealed a court’s order prohibiting him from contacting the victims of his offense. According to the appeals court’s opinion, the juvenile defendant fired a flare gun into a house resulting in a small fire. Three people were inside.

The defendant ultimately pleaded guilty to first degree arson in juvenile court. The court ordered him to 103 to 129 weeks in a Department of Children, Youth, and Families (“DCYF”) rehabilitation facility. The state requested a no-contact order for the people who had been inside the house. The court’s disposition order contained a provision prohibiting the defendant from contacting those three people for an unstated period of time. The court also imposed a 10-year no contact order.

Washington Court Finds Anti-Harassment Order Petition Against Neighbor Was Frivolous

May 6, 2021 | by Blair & Kim, PLLC

Washington civil protection orders provide important protections for victims of harassment, stalking, and relationship violence. In some cases, however, a person may abuse the process and seek a protection order for another reason. In a recent case, a woman challenged a court’s finding her petition for an anti-harassment order was frivolous.

The petitioner and her husband built a fence that crossed onto their neighbor’s property in 2018. Following a letter from his attorney, the neighbor sued them. They failed to respond and a default judgment was entered. Even after being served with the judgment, the petitioner and her husband did not take down the fence.

The trial court ordered the sheriff’s office to help remove the fence in November 2019. A few days later, the neighbor died and his property passed to his brother and sister. The brother and his family went to the property to talk about the fence. The petitioner approached them and asked who they were and why they were there. The brother told her they now owned the property and were preparing to remove the fence the next week with the sheriff. He asked her to confine her horses so they would not get out. She offered to buy the property, but was rejected.

Washington Anti-Harassment Protection Order Against a Minor

April 8, 2021 | by Blair & Kim, PLLC

Parents in Washington want to do what they can to protect their children from harassment. A parent may petition on their child’s behalf for an anti-harassment protection order. A parent’s ability to seek a protection order against another child, however, is more limited. In such cases, the other child must have been “adjudicated of” or investigated for an offense against the protected child. RCW 10.14.040(7). A high school student recently challenged a protection order issued against her on the grounds it was not permitted under RCW 10.14.040(7).

Two high school students were involved in some sort of conflict. The appeals court’s opinion identified the two minor students by the initials A.R.S. and K.G.T. According to the court’s opinion, A.R.S. repeatedly threatened to assault K.G.T.

They met in the bathroom to resolve their differences. A.R.S. shoved K.G.T. A teacher intervened and stopped the incident. The assistant principal subsequently addressed it as a disciplinary issue and suspended K.G.T. for one day and A.R.S. for three.

Washington Convictions for Violation of Multiple No Contact Orders Based on a Single Act

March 4, 2021 | by Blair & Kim, PLLC

The Fifth Amendment to the U.S. Constitution and the Washington Constitution both protect individuals from being charged multiple times for the same offense. Generally, in a Washington criminal case, a defendant may only be charged with multiple counts of the same crime if each is based on a separate criminal act.

A defendant recently challenged his convictions for violation of a court order, arguing that multiple convictions for violation of separate no-contact orders violated double jeopardy principles when the charges were all based on the same act.

There were three no-contact orders entered against the defendant protecting the same person. After the defendant contacted that person, he was arrested and charged with violation of a court order.

Felony Violation of a Protection Order in Washington

November 4, 2020 | by Blair & Kim, PLLC

A person who repeatedly violates a Washington protection order may be charged with a felony. Violation of certain protection orders is a class C felony when the defendant has at least two previous convictions for violating a protection order. RCW 26.50.110(5). The defendant in a recent case appealed a felony violation of a no-contact order conviction arguing that the alleged action that constituted the violation was not itself a crime.

The defendant and his wife separated after 10 years of marriage. When they separated, they lived in a trailer on the wife’s parents’ property, and she remained there after the separation. A domestic violence no-contact order was issued against the defendant prohibiting him from keeping his wife under surveillance. The defendant was convicted of violating the no-contact order twice before the events that led to this case.

The defendant asked a deputy to perform a welfare check on the animals at his wife’s trailer. After learning a friend was caring for the animals, the deputy asked why the defendant was concerned about the animals. He told her a code enforcement officer told him he issued a letter prohibiting the wife from living in the trailer.

No Washington State Constitution Protection Against Use of Recorded Jail Calls in Criminal Case

September 14, 2020 | by Blair & Kim, PLLC

Article I, section 7, of the Washington State Constitution protects individuals from warrantless searches into their private affairs. Courts must consider what type of information may be discovered through the government’s action and how the interest being asserted has been treated in the past. A defendant in a Washington criminal case recently challenged his conviction on the grounds the state had violated his right to be free from intrusion into his private affairs.

The defendant was arrested for violating a domestic violence no contact order prohibiting him from contacting his wife. The order had been modified to allow the parties to communicate by phone, text, and email, but the detective told him the court would probably issue a new no contact order that would not allow phone contact. The trial court did so the next day.

There is a sign by the jail phone informing inmates calls “are recorded and subject to monitoring.” There is also an automated message that warns the caller and recipient that the “call is subject to recording and monitoring.” The detective searched for the defendant’s calls and found he had called his wife from the jail phone on four different days. The state charged him with four counts of felony domestic violence court order violation.

Washington Appeals Court Affirms Violation of No-Contact Order Conviction Supported by Video Surveillance

July 7, 2020 | by Blair & Kim, PLLC

Article I, section 7 of the Washington State Constitution provides individuals a privacy right that is greater than the protection provided by the Fourth Amendment to the U.S. Constitution. A search occurs under article I, section 7, when the government disturbs a citizen’s privacy interests that the citizen should be entitled to have safe from government interference without a warrant. Courts consider the nature and extent of the information the government may obtain through its conduct. An officer observing something through his or her own senses is not a search under this section, if the officer is in a location he or she is lawfully allowed to be. Officers may use tools that enhance their natural senses, such as binoculars or flashlights, but equipment that does more than enhance the senses may require a warrant. Law enforcement needs a warrant to use infrared thermal devices to observe heat patterns in a home or to track a private vehicle with a GPS device.

In a recent case, a defendant challenged his conviction of two counts of felony violation of a domestic violence no-contact order that involved video surveillance evidence. He had previously pleaded guilty to misdemeanor counts of violation of a domestic violence no-contact order under a previous order. According to the appeals court’s opinion, a detective initiated an investigation after an investigator with the Prosecuting Attorney’s Office encountered the defendant in the parking lot of his wife’s apartment building. The detective had surveillance cameras installed on a telephone pole. In the videos, she saw someone she believed to be the defendant walking toward the defendant’s wife’s apartment. The police then obtained a search warrant. When they executed the warrant, they found the defendant standing outside an open window. They also found his mail and clothes in the bedroom. He was arrested and charged with residential burglary and two counts of felony violation of a domestic violence order.

The defendant sought to suppress the video surveillance evidence, arguing the police violated his rights under both article I, section 7, and the Fourth Amendment. He also argued the police were not allowed to install the surveillance cameras on telephone poles. The trial court found the cameras were directed to public areas and the parking lot, not the defendant’s wife’s apartment. The court also found the defendant did not have standing to raise the telephone pole issue. The trial court denied the defendant’s motion to suppress the video evidence.

Washington Stalking Civil Protection Orders

May 21, 2020 | by Blair & Kim, PLLC

A court may issue a Washington protection order based on stalking behavior. (RCW 7.92.100) Stalking includes repeated actual or attempted contact with the victim, tracking the victim, monitoring the victim’s actions or following the victim. The respondent’s conduct must serve no legal purpose and be conduct that the respondent knows or reasonably should know would intimidate, frighten, or threaten a reasonable person. (RCW 7.92.020) An ex-husband recently challenged a protection order issued against him, arguing his wife had not alleged behaviors that constituted stalking.

The ex-wife petitioned for an order of protection six months after the divorce, alleging her ex-husband was stalking her. She claimed he hired a private investigator to follow her. She also alleged he accessed her bank accounts and social media accounts through her old phone. The trial court issued a temporary restraining order.

The ex-wife testified at the hearing that her ex-husband had accessed her Ancestry account and read her private messages. She said he also accessed her social media accounts and read her private messages. She also thought he accessed the account where her employer reimbursed her expenses. She testified he had hired a private investigator who followed her for about four weeks. She said she felt afraid and threatened.

No Blanket Rule Against Live Testimony and Cross-Examination in Washington Protection Order Cases

April 15, 2020 | by Blair & Kim, PLLC

Courts in Washington protection order cases do not always have to allow live testimony or cross-examination, pursuant to the Domestic Violence Prevention Act. The trial court or commissioner should perform a balancing test, weighing the value of cross-examination against the potential harm to the witness. The Washington Supreme Court has stated that courts must conduct “individual inquiries” to determine if live testimony or cross-examination is appropriate in the particular case. Courts are not allowed to issue a “bright line rule” to prohibit testimony or cross-examination in protection order hearings.

A man recently challenged the denial of his request to cross-examine the petitioner and present his own testimony in a protection order hearing. The petitioner petitioned for a domestic violence protection order against the respondent.

A temporary protection order was entered. At the hearing, the commissioner allowed the petitioner to speak to “add to her declaration.” The commissioner denied the respondent’s attorney’s request to cross-examine the petitioner and present testimony. The commissioner stated, “I’m not going to take testimony at these hearings” and referenced Gourley v. Gourley. The respondent’s attorney argued that case did not hold that cross-examination was always inappropriate in protection order cases. The commissioner stated that the respondent could testify only by submitting a declaration. The respondent agreed to a continuance so he could submit documentary evidence.

Washington Father Not Required to Pay Mother’s Attorney Fees after Seeking Protection Order and Custody Modification

March 23, 2020 | by Blair & Kim, PLLC

Sadly, suspicions or allegations of abuse sometimes arise in Washington custody cases. Although there may be circumstances where a party makes an allegation in an attempt to affect the custody case, some parents have sincere concerns about their children. A father recently challenged an order that he pay the mother’s attorney fees related to his motion to modify the parenting plan after he sought a protective order against the mother.

The father claimed he noticed injuries on the child after he picked her up from the mother’s home in June 2017. He said he asked her about them, and she said words in her native language that translated to “Ouwie,” “Hit,” and “Mama.” He took the child to the doctor and the doctor reported finding bruising with small abrasions on her feet and linear areas of bruising on her upper inner forearm. The doctor contacted CPS.

The father claimed he noticed more bruising after picking the child up a few days later. He took her back to the doctor and a nurse practitioner examined her and noted she had bruising on her right periorbital area and healing bruising and abrasions on the top of her feet. The nurse practitioner called CPS, and they recommended calling the police and seeking a protective order. The nurse practitioner called the father and recommended he seek a protective order and not return the child to the mother.