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Articles Posted in Civil Protection Order

When a court grants a Washington domestic violence protection order for a fixed period of time, the petitioner may seek a renewal up to three months before it expires.  A petition for renewal should be granted unless the respondent shows he or she will not resume domestic violence upon the expiration of the protection order.  The respondent must make this showing by a preponderance of the evidence. RCW 26.50.060.

In a recent case, a mother challenged the denial of renewal of an order of protection.  The court had originally granted her a one-year domestic violence protection order against her children’s father protecting the mother and their two children.  The trial court found the father had harmed one of the kids and the mother was afraid for their safety.  The father was prohibited from abusing the mother and children.  The children were subject of a dependency proceeding, so the father’s contact with them was subject to the custody of the Department of Children, Youth and Families.

The mother petitioned to renew the protection order.  She claimed the father scratched the children during his visitation with them. The trial court held a hearing where the mother, her mother, a polygraph examiner, and a Department of Children, Youth and Families social worker testified. Other evidence included a letter and a report from the Department of Children, Youth and Families.

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Washington criminal defendants have a right to confront the witnesses against them pursuant to the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. This means a defendant generally has the right to cross-examine witnesses who provide testimonial evidence against the defendant  at trial.  In cases involving charges related to domestic violence or violation of a no-contact order, victims may not want to testify. In a recent case, a defendant challenged his convictions after body camera footage and a 911 recording were presented at trial.

The mother of defendant’s children called 911 and asked for help, stating “He keeps following me!” There was also a male voice on the recording, saying “Give me the phone.”  When police arrived, the children’s mother told them there was a no-contact order.  She said the defendant had been pushed her, threatened to kill her, and stole her phone.

The police found the defendant a short distance away.  He had a phone in his possession.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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