Civil Protection Order

The Fifth Amendment, Washington Domestic Violence, and Protection Orders

October 30, 2018 | by Blair & Kim, PLLC

In many Washington domestic violence cases, a person faces criminal charges as well as a petition for a civil protection order. When there are “parallel” civil and criminal proceedings, there would be a risk that the criminal defendant may be compelled to incriminate himself or herself in the civil proceedings if not for the protections of the Fifth Amendment. In addition to protecting the defendant during the criminal trial, the Fifth Amendment also allows a person to refuse to answer official questions in other proceedings if the answer might tend to incriminate the person in future criminal proceedings. Washington courts do not automatically delay the civil case until the criminal case is over. Instead, they apply a balancing test based on several factors identified in King v. Olympic Pipeline Company, LLC to determine if the civil case should be stayed.

King was a wrongful death case following a pipeline rupture that resulted in a fire that killed three people. A criminal investigation focused partly on some of the defendants. Those defendants sought a limited partial stay of discovery in the civil case to preserve their Fifth Amendment right and the right to fully defend themselves in the civil case. The trial court denied their motion and the appeals court reviewed.

The Washington Appeals Court adopted factors considered by federal courts in parallel proceedings, noting that it was not necessarily an exhaustive list. The court must balance the factors in light of the circumstances and competing interests of the case.

Washington No-Contact Order Precludes a Defense of Property Defense

October 1, 2018 | by Blair & Kim, PLLC

Photo Credit: Lukatme / Shutterstock.com

Violation of a Washington no-contact order is generally a gross misdemeanor. In some circumstances, however, it can be elevated to a class C felony if the violation includes an assault. Defense of property can be an affirmative defense to assault. The Washington Supreme Court has recently reviewed a case in which the defendant sought a jury instruction on defense of property as an affirmative defense to felony violation of a no-contact order.

According to the Court’s opinion, the defendant checked his car after thinking he saw someone near it. His phone and other items were missing. The defendant saw his former girlfriend walking down the street. There was a no-contact order prohibiting the defendant from coming near or having any contact with her at the time. He followed her and tried to take her purse to retrieve his phone. A witness testified to seeing a man hit a woman, then lift her off the ground and slam her back down. According to the appeal court’s opinion, the defendant denied hitting her.

The defendant was charged with felony violation of a no-contact order predicated on assault. He requested a jury instruction on defense of property. The judge, however, found he “was acting offensively, not defensively…” and was not entitled to the instruction. The jury convicted the defendant, and he appealed, arguing he had been improperly denied the jury instruction. The appeals court affirmed, finding the defendant was not entitled to the defense because he used force to try to recover the property, not prevent its theft.

Washington Court Must Accept Defendant’s Stipulation of No-Contact Order

August 8, 2018 | by Blair & Kim, PLLC

To convict a defendant of felony violation of a no-contact order, the state must prove that an order existed and that the defendant knew of the order. The order is therefore generally relevant and likely admissible. In a recent case, however, the defendant challenged the admission of a no-contact order because he had stipulated to the existence of his order and his knowledge of it.The defendant was charged with several Washington domestic violence offenses, including felony violation of a no-contact order, after the woman with whom he was living told police he assaulted her. The defendant was under Department of Corrections supervision at the time. The defendant pleaded guilty to some of the charges, but the charge for felony violation of a no-contact order went to trial.

The state planned to admit two no-contact orders into evidence. To prove the charge, the state would have to prove that there was a no-contact order in place and that the defendant knew of it. The defendant requested that the no-contact order be excluded because he had agreed to stipulate to knowing of its existence. The judge ultimately admitted the no-contact order over the defendant’s objection.

Washington Domestic Violence Protection Order Cannot Modify Custody Unless It Complies with Custody Laws

July 27, 2018 | by Blair & Kim, PLLC

When one parent seeks a protection order against the other parent, they often ask that the order also be applied to the children. However, when a court issues a domestic violence protection order, any provisions addressing the residential arrangement of minor children must be made in accordance with Washington child custody laws. The court must make findings as to the relevant factors justifying the modification. In a recent case, a Washington appeals court considered whether a protection order that included the child was an improper modification of the parenting plan.

The couple divorced in 2015 and the parenting plan gave each parent 50% residential time with their child. In 2017, the ex-wife petitioned for a protection order, alleging her ex-husband had given her a threatening letter. In the letter, he stated he had two things to live for: “redemption by taking revenge on [his ex-wife]…” and protecting his son. The wife also provided a post on a website purportedly made by the ex-husband in 2015, stating he “contemplated murder and considered violence” but that his “son was too young to be separated from his mother permanently.

Following a hearing, the commissioner issued a protection order restraining the ex-husband from contact with the ex-wife or the child except for his supervised visits.

Evidence in Washington Domestic Violence and No Contact Violation Cases

June 14, 2018 | by Blair & Kim, PLLC

The state can get a conviction in a Washington domestic violence case even when the alleged victim does not testify. In such cases, it is very important for the defendant to fight the admission of other improper evidence that may be harmful to the defense. In a recent case, a defendant was convicted of second degree assault and 13 counts of violation of a domestic violence no-contact order despite the fact his wife failed to appear to testify.

A woman called her daughter and told her she had been in an altercation with her husband and he had choked her. The woman then drove to her daughter’s home in Idaho. The woman said she was afraid of her husband. The daughter saw marks on her mother’s face and neck and asked if she should call the police.

When the officer arrived, he observed injuries consistent with strangulation. The woman told the officer she did not feel safe in her home where the incident occurred. The officer contacted the local authorities in Washington and an Asotin County detective came to the daughter’s home. The detective also noticed injuries consistent with strangulation and took photos to document them.

Threats and Stalking Can Result in Washington Domestic Violence Protection Order

May 11, 2018 | by Blair & Kim, PLLC

Romantic and familial relationships can grow contentious and sometimes become violent. Sometimes relationships can become so contentious that one party seeks to have a court intervene and issue a civil protection order to prevent the other party from contacting them or engaging in other activities. Washington civil protection order attorneys know that a victim does not have to wait until they are seriously injured to seek a civil protection order. In some cases, a court may issue a civil protection order even if there has not been a physical assault, as seen in one recent case.

The former husband appealed a domestic violence protection order (DVPO) issued in favor of his ex-wife. In her petition, the ex-wife stated her ex-husband had violated the no-contact order entered after the divorce. She stated that he had threatened to kill her when she filed the protection order and that he had threatened her many times. She stated he had told her she could either be with him, or he would keep harassing her. She alleged he had a history of both suicidal and violent behaviors. The court granted her a temporary order and scheduled a hearing.

At the hearing, the ex-wife testified that she was afraid for her safety. She said she wanted the DVPO because the restraining order that was already in place was not working. The ex-husband also testified at the hearing and either denied or tried to explain the allegations.

Washington Petitioner for Domestic Violence Protection Order Must Show Relationship

April 6, 2018 | by Blair & Kim, PLLC

Many people think “domestic violence” is limited to people who are or have previously been married or in a romantic relationship. Under Washington law, however, domestic violence is defined to include incidents between family or household members. Sometimes, whether a Washington domestic violence protection order can properly be issued turns on the relationship between the parties, as seen in a recent case.

A woman petitioned for a domestic violence protection order against a man to whom she referred as her “uncle.” The man was seeking repayment of money he had lent the woman, and she alleged he made threats against her and her children.

The man’s attorney challenged whether a domestic violence order was applicable because the parties had never lived together and were not closely related. The woman had to explain her relationship to the man through an interpreter. She told the court her father had told her the man was the son of her grandmother’s first cousin. The court asked her if there was a blood relationship, and she responded, “possibly, yes.”

Washington Appeals Court Finds Pregnancy Admissible in Domestic Violence Case

March 7, 2018 | by Blair & Kim, PLLC

Some evidence, though relevant, may be unfairly prejudicial. A court must balance the probative value of evidence against the risk of unfair prejudice. If the risk of unfair prejudice substantially outweighs its probative value, the evidence must be excluded. Washington domestic violence attorneys know that some facts about an alleged victim could be prejudicial to their client.

A Washington appeals court recently considered whether the trial court erred in allowing limited evidence of the alleged victim’s pregnancy when the defendant appealed his conviction of a misdemeanor violation of a court order with a special finding of domestic violence.

There was a domestic violence no-contact order prohibiting the defendant from contacting or coming within 500 feet of the mother of his child. The woman was pregnant at the time with another child that was believed to be the defendant’s.

No-Contact Orders in Washington Sentencing

February 28, 2018 | by Blair & Kim, PLLC

A person has a fundamental right to parent his or her own natural children. When a court places a sentencing condition on a person that limits those fundamental rights, it must consider whether there are reasonable alternatives that will further the state’s interest. If there are no reasonable alternatives, the court must narrowly tailor the condition. Washington domestic violence attorneys handling these cases must understand the family law implications of any sentencing conditions imposed by the court. This issue recently arose in a case before the Washington Court of Appeals.

The couple had three children together. In 2015, there were no-contact orders in place keeping the husband from contacting the wife of the six-year-old daughter. Sheriff’s deputies believed the husband was at the wife’s residence. They did not receive a response when they first knocked on the door, but the wife ultimately answered and let them in.

One of the deputies found a locked door and heard noises from inside the room. He forced the door open and found men’s clothing and shoes. The window was open, but the deputies had observed it to be closed when they walked around the house before entering.

Cross-Examination of Minors in Washington Domestic Violence Protection Order Proceedings

January 26, 2018 | by Blair & Kim, PLLC

Domestic violence protection orders are designed to protect people from violence and abuse. Although the process is intended to be as simple and easy as it can be, Washington civil protection order attorneys understand that it can be difficult for everyone involved, especially children. It can be hard for children to talk about what has happened. The Washington Supreme Court has recently clarified that there is not a due process right to cross-examine a minor in every protection order proceeding, but there may be such a right in some cases.

In this case, the 14-year-old daughter had taken an overdose of prescription medication in November 2014, partly to avoid visiting her father. She told a social worker her father had been physically and verbally abusive. She had told her counselor her father often called her names. She stated that her father had “trie[d] to suffocate her.” She said he had been doing this for years. She said he put her under pillows and lay on them, which made her feel like she was suffocating and caused her to panic.

The mother sought a domestic violence protection order on behalf of herself and her children. Her petition stated that her daughter harmed herself because of her fear of visiting her father and because of his history of domestic violence against them.