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Protective Order Defense Attorney

Is a Utah protective order to "stay away" from certain locations unconstitutionally vague?

In some jurisdictions, it is standard practice for a protective order to state a specific distance which a respondent to the protective order must "stay away" from certain locations. For example, "the Respondent is ordered to stay at least 500 feet from Petitioner's [home, workplace, etc.]." But in Utah, it is common for a protective order to simply say "stay away from" certain premises, property, or locations. There is a degree of vagueness in an order to "stay away" that does not include a specific distance. In some cases, this provision of the order may be unconstitutionally vague and thus, unenforceable.

Criminal charges for violating a protective order can be filed at the felony or misdemeanor level, and penalties can be severe. If you are facing criminal prosecution for violation of a protective order in Utah, having an experienced criminal lawyer in your corner can give you the best chance of mounting a successful defense. Contact us today to see how we can help you.

Assessing Unconstitutional Vagueness

The idea that a statute or order may be unconstitutionally vague is based on constitutional requirements of due process. Due process requires that a person have "notice" of a law or order before the person can be punished for violating the law or order.

A statute or court order may be found to be unconstitutionally vague (or void for vagueness) if it is not sufficiently clear and explicit such that a person of ordinary intelligence can understand it and conform his or her conduct to the requirements of the statute or order. A court may determine that a law or order is unconstitutionally vague on its face or facially invalid when there is no set of circumstances under which the law or order could be enforced in a manner consistent with the requirements of due process. In other cases, a court may determine that a law or order is only unconstitutionally vague as it is applied to the specific facts and circumstances of the case at hand.

Challenging a Protective Order's "Stay Away" Provision

When challenging the constitutionality of a protective order's "stay away" provision for vagueness, the order may be challenged both facially and as-applied. Successful facial challenges are less common, as the challenger must demonstrate that the language of the order is so vague that there could be no set of circumstances under which the order could be constitutionally enforced. An as-applied challenge may have a better chance of success, but is going to depend heavily on the specific facts and circumstances of the case. Consider the two following hypothetical situations.

Assume a defendant who is charged with criminal violation of a protective order which states that he is required to "stay away from" the petitioner's residence. The basis for the charge is that the defendant was found sitting in the petitioner's front yard. It is unlikely that a court would be convinced that the language of the order is so vague that the defendant would not be on notice that his conduct was prohibited by the protective order.

By contrast, assume a second defendant who is charged with violating a protective order which states that she must "stay away from" the petitioner's place of employment. Assume that the basis for this charge is that the defendant was seen on State Street in downtown Salt Lake City, driving past the office tower where the petitioner has an office.

In both cases, the defendant was in close physical proximity to a prohibited place. But in the case involving the petitioner's front yard, confrontation or contact between petitioner and defendant is much more likely. And it is more likely that the defendant would be on notice that such conduct was prohibited by the protective order. By contrast, driving down a busy street in downtown Salt Lake City near an office tower is much less likely to result in any kind of interaction between the petitioner and the defendant. Further, without stating a specific distance, the "stay away" provision of the protective order is more likely to be found unconstitutionally vague as it is applied to the driving situation.

Finding a Criminal Defense Attorney

Utah Criminal Defense LawyerIf you are facing prosecution for violation of a protective order, domestic violence, or other criminal charges in Utah, it is vital that you consult with and obtain the assistance of an experienced criminal defense attorney. The Utah criminal justice system is complex and the penalties can be severe. The right defense strategy and the right defense attorney can make all the difference.

Contact us today to see how we can help you.

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Serving Salt Lake, Davis, Weber, Utah, Cache, Tooele, Summit, Box Elder, and Wasatch Counties, and all of Utah.

Attorney Stephen Howard practices as part of the Canyons Law Group, LLC and Stephen W. Howard, PC.

Offices in Salt Lake and Davis Counties
560 South 300 East, Suite 200, Salt Lake City, UT 84111
952 S. Main St., Suite A, Layton, UT 84041

Call now to arrange for a confidential initial consultation with an experienced and effective Utah criminal defense lawyer.

In Salt Lake City, call 801-449-1409.
In Davis County, call 801-923-4345.

Stephen W. Howard, PC

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