Domestic Violence Protective Orders (DVPO) and Criminal Statutes
If someone has filed a domestic violence charge against you, you need to take the charge seriously and hire an experienced attorney to assist you in protecting your rights. Do not assume that because you have done nothing wrong you will be able to represent yourself in a domestic violence case.
Many times in North Carolina spouses will misuse the process for obtaining a domestic violence protective or restraining order to get around the domestic court backlogs for hearing temporary custody cases. A temporary custody order can be obtained as part of a domestic violence restraining order process usually much more quickly than the domestic court will schedule a custody hearing as part of a divorce or separation process.
Who can obtain a domestic violence protective or restraining order in North Carolina?
A domestic violence protective or restraining order maybe filed by anyone over the age of 18 alleging they or their minor child is a victim of domestic violence from their spouse or ex-spouse, a person of the opposite sex with whom they live or used to live, their parents, children, grandparents and grandchildren over the age of 16, someone they have a child with, or someone they are dating or used to date or a current or former household member.
Domestic violence is defined in the state as an attempt to cause bodily injury, or intentionally causing bodily injury; or placing an aggrieved party or a member of the aggrieved party’s family or household in fear of imminent serious bodily injury or continued harassment that rises to such a level as to inflict substantial emotional distress.
How is a typical criminal charge of domestic violence prosecuted in North Carolina?
An allegation of domestic violence typically will result in the district attorney filing criminal charges against the perpetrator. Once a domestic violence charge has been filed, only the district attorney can decide to dismiss the charge. The alleged victim cannot decide to drop the charge and can be subpoenaed to appear in court and testify. If the alleged victim does not appear he or she can be charged with contempt of court and face jail time.
In North Carolina an assault on a female is often prosecuted as a class A1 misdemeanor punishable by up to 150 days in jail. Interestingly women are generally charged under a less serious, simple assault, criminal statute that is a class 2 misdemeanor punishable by up to 60 days in jail. The exact charges will depend on the acts of violence alleged in the complaint. Attempted murder or rape for example can result in felony charges being filed against the alleged perpetrator.
Whenever someone is arrested for alleged domestic violence, there is an automatic 48 hour mandatory jail hold. After the 48 hours bond will be set and if bond is posted the alleged aggressor will be allowed to leave jail. That is a scary prospect 48 hours in jail before you have even had an opportunity to deny the alleged acts before a judge.
The likelihood of being charged with a crime that will result in 48 hours in jail and could result in a longer time in jail if convicted is why you do not want to wait to contact an experienced attorney to advise and defend you if you believe your spouse or significant other may file domestic violence charges against you.
A non U.S. citizen charged with a domestic violence offense has even more to lose as he/she could lose their ability to remain in the country. Even the dismissal of a domestic violence charge if conditioned on an admission of guilt can result in immigration consequences. Some spouses make-up domestic violence allegations just to get his/her spouse deported. Seek legal help from an experienced domestic violence attorney if you even suspect your spouse or the mother or father of your children might file domestic violence charges as a way to get you out of their lives.
Wake County North Carolina District Court Domestic Violence Process
Wake County, North Carolina District Court has a special courtroom, judges and personal established just for domestic violence cases. In a typical domestic violence case where the alleged acts of domestic violence do not rise above the assault or misdemeanor level a hearing will be scheduled following the perpetrators arrest. The Defendant will be immediately placed on a 48 hour hold and bond will be set by a judge.
If the accused posts bail, his release will likely be conditioned on a no contact order with the alleged victim or, with the consent of the alleged victim, a no harass, assault or threaten order.
Also prior to the scheduled court hearing personal from the district attorney’s office will contact and interview the alleged victims and subpoena them to attend a court hearing. Failure of the victim to show at the hearing can result in the court finding the victim in contempt of court.
Often the district attorney will offer the alleged first-time offender a “deal.” The “deal” typically would involve a deferred prosecution dismissed after one year if the alleged offender admits guilt, takes a course in anger management and stays employed or in school and no new charges are filed in that year. It is not advisable to take a prosecutor’s offer without legal representation as the results of this plea arrangement could result in consequences with your work, pending or potential domestic violence protective order, family law case and/or immigration status.
This is particularly true if you are an immigrant or are in the middle of divorce, separation or child custody litigation. An admission of guilt of domestic violence particularly domestic violence where the children were present can be used against you in a custody determination even if the charges are later dismissed. The court could use a finding of domestic violence occurring in the presence of the children to order supervised visitation, meaning you will only see your children in the presence of a third party.
If you area in the middle of a contested divorce or separation or child custody dispute contact an experienced attorney immediately. You could find yourself in the position of defending yourself in domestic court, criminal court and in a civil domestic violence restraining order case all at the same time. You need an attorney to make sure your rights are protected to the fullest extent possible.