Hello and welcome back to rants of a criminal defense attorney. I want to talk about something really disturbing that I witnessed in court this week that made me remember just how important it is to make sure that your rights are protected.

DOMESTIC VIOLENCE CASES

I happened to sit through arraignments one day recently and I watched the court handle the out domestic arraignments, so these are the people who are arrested for domestic violence who are not incarcerated. They are unrepresented, most of them. When you get arrested, you don’t hire an attorney right before you come to court, and then you’re not entitled to a public defender because you’re not incarcerated, so you approach the court on your first appearance unrepresented. On this day for a domestic arraignment, the court issues a protective order.

Now the protective order could be a full no contact protective order throwing you out of your home, making you unable to see your children, I could go on and on about how awful the protective orders can be. But they issue the protective order without you being able to be heard on whether this level of protective order is appropriate. Now I watched the court give out these protective orders and people try to contest the level of protective orders, and they start speaking to contest the level of protective order, and I watched the judge basically tell them to stop talking. The judge just says, “I’m just giving out this protective order today, and you can contest it at a later date.”

YOUR RIGHTS COULD BE VIOLATED

This is inaccurate, legally inaccurate. And the reason why it’s legally inaccurate is because at your arraignment, you have to request something called a Fernando A. hearing in order to contest the protective order. Now a Fernando A. hearing means that you are entitled to an evidentiary hearing on why this level of protective order is not necessary to protect the parties. And the state bears the burden of proof that this level of protective order is appropriate. Now if you don’t request this hearing at the arraignment you waive it and later you can file a motion to modify the protective order, but there is no evidentiary hearing and guess who bears the burden of proof? Not the state – you.

So essentially what’s happening was that the court was not allowing these people to object to the level of protective order thereby waiving their right to this hearing. And then they go on their merry way not knowing that they are giving up this right. What is happening? You need to make sure you go to court with a lawyer at all times. Nobody is going to protect your rights but you and your lawyer. The court obviously isn’t doing it, and is just handing out these protective orders like they’re candy and they don’t care about who they hurt or why and they don’t care about whether the protective order is valid. They don’t care if they’re effectively making you waive your rights because you’re not represented and you don’t have any ability to preserve them.

So that’s my rant for the day, this is what I saw in court, it’s disturbing, but just make sure when you go to court at all times you have a lawyer making sure that someone is protecting your rights. If you have any questions about this feel free to contact us and as always take care, don’t get arrested, and see you soon.