An emergency protective order (EPO) is issued by an on-call judicial officer at a law enforcement officer's request, often the day of an arrest, while a criminal protective order (CPO) is issued later, by the court handling the criminal case. An EPO expires within about a week; a CPO can run through the case and, after conviction, for years.
Who issues each order, and when?
An emergency protective order comes from an on-call judicial officer at a police officer's request, often the day of arrest; a criminal protective order comes later from the criminal court.
Family Code section 6241 requires the presiding judge of each county's superior court to designate at least one judge, commissioner or referee who is reasonably available, by phone if needed, to issue an emergency protective order at any time, whether or not the court is in session. A police officer, sheriff's officer, California Highway Patrol officer, or several other listed kinds of peace officers can ask that judicial officer for the order when there are reasonable grounds to believe a person is in immediate and present danger of domestic violence, based on a recent incident or threat of abuse (Family Code section 6250). A criminal protective order works differently: under Penal Code section 136.2, it comes only from "a court with jurisdiction over a criminal matter," on a good cause belief that a victim or witness has been harmed, intimidated or dissuaded, or that this is reasonably likely. That means a CPO cannot exist until a criminal case is actually in front of a court, while an EPO can be granted at the scene, before anyone has been charged with anything. The firm's own pages on emergency protective orders and criminal protective orders go further into how each is actually requested and what each one can contain; this page is only about telling the two apart.
How long does each order actually last?
An emergency order expires at the earlier of the fifth court day or the seventh calendar day after issuance, while a criminal protective order can run through the whole case.
An EPO is deliberately short (Family Code section 6256). The actual Judicial Council form a person receives, form EPO-001, states this in capital letters: "EXPIRES ON THE 5TH COURT DAY OR 7TH CALENDAR DAY, WHICHEVER IS EARLIER. DO NOT COUNT THE DAY THE ORDER IS GRANTED." The form also tells the protected person what to do next: for a longer restraining order, they have to ask their local court for one, and the form says to start the process as soon as they can. A criminal protective order's length depends on where the case stands. The Judicial Council form used for a domestic violence CPO, form CR-160, says a pretrial order "remains in effect until further court order," while a postconviction order can be valid for up to 10 years for most crimes involving domestic violence, or up to 15 years after a conviction for inflicting corporal injury on a spouse, cohabitant or partner.
Caption: emergency protective order and criminal protective order, side by side
| Emergency protective order (EPO) | Criminal protective order (CPO) | |
|---|---|---|
| Who issues it | An on-call judge, commissioner, or referee | The court handling the criminal case |
| What starts it | A law enforcement officer's request at the scene | A good cause belief that a victim or witness has been, or is reasonably likely to be, harmed, intimidated or dissuaded |
| How long it lasts | Earlier of the 5th court day or 7th calendar day | Through the case; up to 10 years after conviction (15 for some) |
| Judicial Council form | EPO-001 | CR-160 (domestic violence) or CR-161 (other cases) |
If both orders exist at once, which one controls?
When an emergency order and a criminal order both name the same people, the emergency order wins only for its terms that are more restrictive on the restrained person.
Penal Code section 136.2(c)(1)(A) gives an emergency protective order precedence over any other restraining or protective order, but only when it meets three conditions: it protects someone already protected under the other order, it restrains the same person the other order restrains, and its terms are more restrictive toward that person than the other order's terms. Even then, it controls only through those specific more-restrictive provisions, not the whole document. A no-contact order under Family Code section 6320 also has precedence in enforcement over other orders, under Penal Code section 136.2(c)(2). Outside those two cases, once a complaint, information or indictment charging domestic violence or certain other offenses has been filed, the criminal court's own order against the defendant has precedence in enforcement over a conflicting civil court order against the same defendant (Penal Code section 136.2(e)(2)). The actual criminal protective order form prints this same priority sequence for officers in the field: an EPO first, then a no-contact order, then the criminal protective order, then the most recent civil order. The firm's page on which order controls when a criminal and a civil restraining order conflict walks through the complete four-step sequence and how custody orders fit into it; this section covers only the EPO-and-CPO piece of that picture.
What does each order typically require, and what if it is violated?
Both orders commonly bar contact and require giving up firearms, and breaking either one can lead to new, separate criminal charges.
A person subject to a criminal protective order under Penal Code section 136.2 cannot own, possess, buy or receive a firearm while the order is in effect, and the court orders the person to give up any firearms already owned. The emergency protective order form carries its own version of the same requirement, telling the restrained person not to own, possess, purchase or receive a firearm and to surrender it. Under Penal Code section 166(c), willfully and knowingly violating a criminal protective order is contempt of court, a separate misdemeanor punishable by up to 364 days in county jail, a fine, or both, and a second or later conviction within seven years of a prior conviction, involving violence or a credible threat of violence, is a wobbler, chargeable as either a misdemeanor or a felony. The firm's page on defending against restraining orders and violations covers how an alleged violation of either order is actually contested; this page covers only what the two orders are and how they differ.
How can you tell which order you actually have?
The form number printed in the corner of the paper identifies it: EPO-001 is the emergency order, and CR-160 or CR-161 is the criminal protective order.
The emergency protective order form shows which judicial officer granted it and on what date, and names the people it protects and restrains. A criminal protective order is captioned "People of the State of California v." the defendant, carries the criminal case number, and checks boxes for whether it is a pretrial order, a probation condition, or a postconviction order, along with the specific Penal Code section behind it, such as 136.2, 1203.097(a)(2), 136.2(i), 273.5(j), 368(l) or 646.9(k). CR-160 is used in a domestic violence case; CR-161 covers other kinds of criminal cases, such as stalking. Checking the form number in the corner answers the question faster than trying to remember who asked for the order or when.
Related questions
- What is the difference between a no-contact order and a restraining order? A separate but related terminology question, since "no-contact order" is usually a term inside a protective order rather than its own document. See no-contact order vs. restraining order.
- What happens to a restraining order if the criminal case is dismissed? A different question from how the two orders compare while the case is active. See restraining orders after a case is dismissed in California.
- Can someone be bound by a protective order they say they never actually received? See what happens if you never received a protective order.
Frequently asked questions
Can a police officer issue an emergency protective order without asking a judge?
No. An officer can only request one; a judicial officer, such as a judge, commissioner or referee, has to be the one who actually issues it, even if the request happens by phone in the middle of the night.
If an emergency protective order is about to expire, can it just be renewed?
No. The official form tells the protected person that the order expires on the date and time stated on it, and that a longer restraining order means asking the local court for one, starting the process as soon as possible.
Can a criminal protective order be changed after it is issued?
For a postconviction order, yes: Penal Code section 136.2(i)(1) lets the sentencing court modify it throughout the time it runs. For a pretrial order, the request goes to the court currently handling the criminal case.
Can an emergency protective order include a person's minor children?
Yes. Family Code section 6252 allows an emergency protective order to address temporary care and control of a minor child of the person being protected and the person being restrained.
Do both kinds of orders go into the same statewide system?
Yes. Courts must send criminal protective orders, and the Family Code filings behind other protective orders, to law enforcement within one business day, and the Department of Justice keeps them in a statewide system that court clerks and police can search.
Does an emergency protective order also cover ammunition and gun parts?
Yes. The emergency protective order form bars owning, possessing, buying or receiving guns, firearm parts such as a receiver or frame, and ammunition. If law enforcement asks, they must be surrendered immediately. Otherwise, within 24 hours of receiving the order, they must be turned in to a law enforcement agency or sold to or stored with a licensed gun dealer.
Talk to a lawyer
The Law Offices of David S. Chesley offers a free consultation and is available 24/7 to explain which order actually applies to a specific situation, with payment plans and Se habla español. Call (800) 755-5174 or request a free consultation online.