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

If
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.