North Carolina Criminal Law Updates
A violation of a DVPO in North Carolina can carry serious consequences if you’re convicted.
The North Carolina criminal laws classify such offenses as upper-level, more serious misdemeanors.
Defense lawyers may refer to that as an A1 misdemeanor or an “aggravated misdemeanor.” It is separate and apart from a factor of aggravation that may be considered by the Court.
A1 charges are the highest level or type of misdemeanor charge below felony allegations.
The maximum period of jail time (incarceration) allowed under the sentencing laws is 150 days for A1 misdemeanors.
Judges are given a great deal of discretion in determining the most appropriate punishment to impose and must consider the PRL Prior Record Level of the offender.
It’s important to understand the factual allegations behind a violation of protective order or “DVPO” may also serve as the basis for additional criminal charges, including other related felony and misdemeanor accusations.
For example, domestic violence charges often include fact patterns involving communicating threats, damage to personal property, and at times, felony charges alleging felony breaking and entering or felony weapons offenses associated with the terms of a pre-existing protective order.
Notice Provisions – What is required under the law?
“Restraining Orders” and other types of Orders of Protection are handled in the Civil Court legal system in North Carolina.
Issuance of a DVPO is considered a civil matter. Violation of a 50B in North Carolina is a separate, although related criminal charge under the NC Criminal Laws.
There are various forms of restraining orders in NC as authorized under Chapter 50C, Chapter 50B, and may also involve the NC Family Laws under Chapter 50.
50B protective orders are instituted when there are allegations against the Defendant that may include “acts of domestic violence,” seeking to protect the “petitioner,” the plaintiff in civil court, against future assault and battery, harassment, mental anguish, and threats.
Wilfully violating a court Order can result in a Motion to Show Cause and the possibility of being found in Contempt of Court as a civil proceeding.
Under the NC Domestic Violence laws, which have cross-over between the criminal statutes and the civil authority to issue a DVPO under Chapter 50B, willfully failing to comply with the Court Order is a Class A1 misdemeanor.
It is a criminal charge and a serious one at that.
The Defendant must be made aware of the allegations and given proper “notice” of the terms and conditions of the protective order.
That necessitates proper Service of Process of the court documentation, including the legal filings, the supporting allegations, and any temporary or emergency Court Order issued.
Ex Parte Proceedings
The initial filing of a Motion and Order for Domestic Violence Protective Order under N.C.G.S. Chapter 50B may be handled ex parte.
That means the filing and initial review of the allegations by the Court are commonly handled outside the presence and without the involvement of the accused, the Defendant in the civil proceeding.
The Court then directs the matter be set on for hearing within 10 days of the entry of the temporary, initial 50B Domestic Violence Protective Order.
The responding party, the Defendant, must thereafter be “served” with the Petition for DVPO, the allegations supporting the 50B, and the Court’s Temporary Order. Sometimes that’s also referred to as a Temporary Restraining Order or “TRO.”
One of the first things the Court handles at the “10-day hearing” is whether both the parties, the Petitioner and the Defendant, are present in court and able to proceed forward.
If the Defendant is not present or represented by an attorney, the Court often makes further inquiry regarding whether he or she was properly “served” with the Petition for DVPO, the temporary, ex parte protective Order, and provided formal notice of the 10-day hearing.
Notice of the hearing includes the date, time, and location of the hearing in civil court.
If not properly served, the Court may Order the matter be continued to allow for proper service of process upon the Defendant. There are statutory rules about how long and how often DVPO matters may or may not be continued in NC.
Without proper service of process, the Court may dismiss “without prejudice” or “with leave to refile,” allowing the Petitioner to again seek protection if deemed necessary and proper.
OBX Criminal Defense – Violation of 50B Order
Outer Banks Lawyer Danny Glover is available for consultation on criminal matters involving acts of domestic violence, including allegations of assault, assault and battery, assault on a female, and the criminal accusation of violating a 50B Order.
You may email Danny Glover Jr directly at: Danny@DannyGloverLawFirm.com
Call NOW: 252-299-5300