What is a 50B, Domestic Violence Protective order, restraining order and how do they work?
In North Carolina, any citizen can go to their local Magistrate and swear out criminal charges against another person, assuming they swear to the truth of their statement. Citizens can also file for “restraining orders” using nearly the same procedure. This article undertakes to discuss the interplay between the law of Domestic Violence Protective Orders (“DVPO’s” or “50B’s”) and the criminal charges that can arise out of their existence.
Domestic violence is a growing problem in the United States, and the Legislature of North Carolina feels very strongly about its prevention. People who love each other are often extremely emotionally invested in their relationships, in both good and bad ways. In many instances, marital strife, financial insecurity, and the day to day problems associated with just living lead to arguments, which can in turn lead to domestic violence.
To read more about Domestic Violence, the procedure by which a party obtains a 50B, and enforcement or restraining orders, click here or here. 50B’s (as opposed to 50C’s), require a personal relationship to exist between the person seeking the protections of a DVPO, and the person they wish to be protected from. A personal relationship can be a myriad of things: spouses (both current and ex), parents and their children, grandparents and their grandchildren, people who have lived together (whether in a sexual relationship or not), and people who have dated all have sufficient personal relationships, to name a few examples.
When you have your DVPO, what can be done to make sure the other party complies by its terms? In North Carolina, violation of a valid domestic violence protective order is punishable as a Class A1 misdemeanor, and can subject the violating party of up to 150 days in jail. However, if you have been convicted of this offense two or more times previously, you can be charged with a Class H felony, punishable by a maximum sentence of 20-33 months in the Department of Adult Correction.
The following is a common scenario that highlights a few of the quirks that exist in North Carolina due to DVPO’s:
Let’s say that you find out there is an ex parte (temporary) domestic violence protective order against you, which restrains you from doing a variety of things; one of which from physically being at the place the Plaintiff works. Knowing that the Plaintiff lied about you having committed an act of domestic violence, you try to go to their workplace to sort out what you feel is simply a misunderstanding. While there, a police officer who is aware of the ex parte order sees you, and knows you are in violation of the order. What is their duty as a member of law enforcement?
Under the statute, a police officer who has probable cause to believe a party is violating any term of a 50B shall take that person into custody. So now you have two pending court dates: one for the one year 50B hearing, and the other for the criminal offense of violation of a DVPO. When you go to court for the one year hearing, you are able to successfully convince the court that the accusations made by the Plaintiff are not true, and that you did not commit an act of domestic violence. Must the DA then dismiss the criminal charges?
The answer to that question is no. Due to the fact that the ex parte order was valid (in its existence, not in that you committed an act of domestic violence) when you violated it, you still arguably were in violation of a valid domestic violence protective order and can still be found guilty of an A1 misdemeanor. Regardless of whether the DA dismisses the charge or not, there is no longer a 50B; however, the police officer who arrested you before does not know that, and the Plaintiff falsely tells the officer the 50B was extended by a year. Is there anything you can do? Under North Carolina law, anyone who knowingly lies to a police officer and tells them a protective order remains in effect have themselves arguably committed a Class 2 misdemeanor, punishable by a maximum of 60 days in jail.
DVPO’s can also be used as ways to enhance punishments for other criminal conduct. A court, pursuant to a 50B, can order the Defendant to both do and not do certain things. For example, a Defendant can be precluded from going to the parties’ residence. However, again, you feel that it is all a misunderstanding, and so you break into the Plaintiff’s house to get some of your things back. In doing so, you have arguably committed the offense of felony breaking and entering, a class H felony punishable by a maximum sentence of 20-33 months. However, due solely to the fact that you acted in violation of the DVPO, your Class H felony can be enhanced to a Class G felony (which is punishable by a maximum sentence of 25-39 months).
Going back to the example from above where you want to speak to the Plaintiff about the misunderstanding, you have in your pocket a pistol. Simply by having on your person or in your possession a deadly weapon, you can now be charged with the Class H felony of violating a valid domestic violence order of protection while possession a weapon. Now imagine that you are hanging around the Plaintiff’s workplace and you hear she has been hanging out at a shelter created for victims of domestic violence and you decide to go to speak with Plaintiff, even though the DVPO says you are not to be within 50 feet of the Plaintiff. If you enter the shelter, you can be charged with a Class H felony, even if the Plaintiff is not there!
As described above, the law surrounding DVPO’s and the criminal charges that arise out of them can subject a person to extremely severe punishments. Here at Arnold & Smith, PLLC, we have attorneys who practice in civil and criminal law. Not only can we help you get a 50B or defend against one being entered against you, but we also have experienced criminal defense attorneys who can defend against any additional complications which may arise. Contact Us today to get the help you need with Domestic Violence Protective Orders.Related Articles: