DVPO and Domestic Violence Criminal Charges

OBX criminal charges involving allegations of “domestic violence” are serious and often warrant legal representation by an experienced criminal lawyer.

Given the possible consequences of a conviction for assault on a female, communicating threats, or a felony assault such as assault by strangulation, it is imperative to speak with a criminal lawyer without delay.

DV charges can be a complicated mix of emotions, civil actions relating to some form of restraining order, and answering formal criminal charges – Danny Glover, OBX Lawyer

One would be remiss in failing to note that while certain legal matters may involve the same allegations, there can be separate and distinct legal proceedings in the various courts throughout the Outer Banks.

Depending on the nature and circumstances of the criminal charges, there may be appearances in civil district court to answer a Complaint and Motion for Domestic Violence Protective Order (N.C.G.S. Chapter 50B DVPO) and attendance in both district and superior court for felony or misdemeanor charges.

Issue	Civil DVPO (Chapter 50B)	Criminal Domestic Violence Charges
Type of case	Civil protective order proceeding	State criminal prosecution
Who files the case	The Plaintiff/Petitioner files a Complaint and Motion for DVPO	The State of North Carolina prosecutes charges
Purpose of the proceeding	Protection, no-contact provisions, temporary custody, residence issues	Determine guilt or innocence of alleged criminal offense
Burden of proof	Greater weight of the evidence	Beyond a reasonable doubt
Who carries the burden	The Plaintiff/Petition	The State
Can the defendant be called as a witness	Yes, subject to Fifth Amendment rights	No, the State cannot compel the defendant to testify
Possible negative inference	A The judge may draw a negative inference if the Fifth is asserted	No negative inference permitted in a criminal trial regarding decision not to testify
Relationship requirement	Qualifying personal relationship required under Chapter 50B	Relationship may affect charging decisions and bond conditions
Timing of proceedings	Ex parte order may issue quickly \| full hearing typically set within ten days	Proceeds through district or superior court based on charge classification and stage in proceedings
Are criminal charges required	No, a DVPO may proceed without criminal charges	Prosecution requires formal criminal charge
Potential consequences	No-contact orders, removal from residence, custody provisions	Conviction, probation, jail or prison exposure, permanent record

What is Domestic Violence or “DV?”

“DV” as is generally called, may involve an interaction between our civil and criminal courts.

Domestic violence and the determination of whether “acts of domestic violence” occurred is generally the subject of the restraining order in civil court, which is formally called a “protective order.”

In an application for ex parte DVPO, the Plaintiff files a type of formal lawsuit, setting forth the specifics of what took place. That may normally include explaining in the civil Complaint:

The name of the Plaintiff
The name of the Defendant
The address of the Defendant
The county where the Domestic Violence took place
The nature or type of relationship between the Plaintiff and the Defendant
The specific Acts of Domestic Violence
The relief sought

The Burden of Proof for a DVPO

The Plaintiff bears the Burden of Proof in a Complaint and Motion for DVPO. That means they must prove to the Court’s satisfaction that Acts of Domestic Violence occurred and further that the court has subject matter jurisdiction and personal jurisdiction over the litigants.

The standard of proof is “By the Greater Weight of the Evidence.” The Plaintiff must show that more likely than not Acts of Domestic Violence took place.

In a civil action, the Defendant may be called as a witness by the Plaintiff. As may be legally appropriate, the Defendant in a DVPO / 50B hearing may assert 5th Amendment protections.

“Taking the 5th” as it is called, can result in a negative inference by the Court, which is a District Court Judge in North Carolina.

The Burden of Proof for Criminal Charges

The State carries the burden of proving each and every element of an alleged offense or violation of the NC Criminal Laws. That includes the substantive aspects of the allegations to make out a prima facie case for either a felony or misdemeanor charges.

The standard of proof is “Beyond a Reasonable Doubt.” The Defendant carries no burden of proof. The Defendant is not required to present evidence or proof of innocence.

The State cannot call the Defendant as a witness against himself.

Who is the Plaintiff in a 50B in North Carolina?

Ordinarily, the person who has been assaulted, harassed, and/or injured is the Plaintiff in an action for a DV restraining order.

It is possible for the Plaintiff to bring an action (file a civil lawsuit) on behalf of minor children who have been subject to acts of domestic violence, harassment, and even sex offenses.

Children are protected by 50B Orders, as it is always the Court’s duty to consider the safety and best interests of any minor children in a household.

Criminal Charges Related to DVPO

Criminal charges in North Carolina may also consider whether the relationship between the defendant (the person who has been accused, charged, or possibly arrested) and the alleged victim.

If in the commission of a crime relating to assault or assault and battery the respective parties are married, in a dating relationship, cohabitate and/or have children in common, certain rules may apply regarding setting bond and terms and conditions for release from custody.

That is also true even in instances when the relationship has ended. As such, DV charges do not necessarily require the defendant or the alleged victim to still be married or live together or even date.

Are Criminal Charges Required?

Formal criminal charges are not required to file for an ex parte DVPO. That’s true too for the issuance of a 1-year Order continuing the Order of Protection.

The civil court, whether it takes place in a special “50B Court” in the Outer Banks or in family court, pursuant to an action for separation or divorce, is not limited by the existence or the non-existence of criminal charges.

While criminal charges involving a sex offense, assault, or other “DV related” matter may result in a civil filing, it is not required.

Sexual Assault, Indictment, and DVPO Issues

Frequently Asked Questions | Domestic Violence Charges on the Outer Banks

What is a 50B order in North Carolina?

A 50B order is a Domestic Violence Protective Order issued under N.C.G.S. Chapter 50B. It is a civil court order that can prohibit contact, require the defendant to vacate a shared residence, and award temporary custody of minor children. It is a separate proceeding from criminal charges but frequently arises from the same DV incident.

Can domestic violence charges be dropped in North Carolina?

In North Carolina, the decision to prosecute belongs to the State, not the complaining witness. Sometimes people assume the alleged victim can simply withdraw the charges, but that is not how it works. The prosecutor controls whether the case moves forward, and the State can proceed using other available evidence even when the alleged victim recants or refuses to cooperate.

What happens at a 50B hearing in North Carolina?

The hearing is scheduled in district court within ten days of the ex parte order being filed, but whether it actually proceeds on that date depends on several factors, including whether the defendant has been properly served. When the hearing does go forward, both parties appear before a judge. The plaintiff presents testimony and evidence supporting their claim, the defendant has the right to cross-examine witnesses and present their own evidence, and the judge decides whether to continue the protective order for up to one year.

Do domestic violence convictions appear on background checks?

A conviction for a DV-related offense can appear on a background check. In North Carolina, domestic violence encompasses both a specific charge, misdemeanor crime of domestic violence, and a designation that may attach to a range of other offenses including assault on a female, assault by strangulation, communicating threats, and interfering with emergency communications, when those offenses occur within a qualifying personal relationship.

Can I be charged with domestic violence if I was defending myself?

Domestic violence charges can be filed even when the person charged (the Defendant) was acting in self-defense. Being charged does not mean the defense is unavailable or that the accused in guilty. Self-defense is an affirmative defense that has to be built and argued rather than simply asserted, and the determination of who was the primary aggressor can be central to the defense strategy.

Do I need a lawyer for a DVPO hearing even if there are no criminal charges?

A 50B hearing can determine where you live, whether you have access to your children, and what the factual/evidentiary record may look like going into any subsequent criminal or family court proceeding. Given the possible consequences, which may involve potential admissions by the Defendant during the DVPO civil proceeding, it is often advisable to seek guidance from an experienced domestic violence lawyer.

What is assault by strangulation in North Carolina?

Assault by strangulation is a Class H felony under N.C.G.S. 14-32.4(b), involving intentionally assaulting another person by strangulation or suffocation. Because it is a felony, it carries potential consequences significantly more serious than those attached to misdemeanor assault charges, including potential active prison time and permanent federal restrictions on firearm possession.

Facing DV Charges on the Outer Banks | Glover Law Firm

Navigating simultaneous civil and criminal proceedings in a domestic violence case can be overwhelming, particularly when you are not sure what the next steps are or what is actually at stake. Danny Glover is an Outer Banks criminal defense lawyer with over 30 years of legal experience and a former President of the North Carolina Advocates for Justice who handles both sides of that equation, from the 50B hearing to the criminal charges that may follow.

Criminal Defense Attorney | Danny Glover
Local Office Location |105 N Road St, Elizabeth City, NC 27909
Phone | (252) 299-5300