One of the most common domestic violence crimes in a violation of a Domestic Violence Protective Order (“DVPO”), commonly referred to as a restraining order. A DVPO is in essence a court order, telling the defendant or the person whom the order is entered against, specifically what they cannot do.
In order to violate a DVPO the State must prove: First, the existence of a valid DVPO; and second, that the defendant knowingly violated the terms of the DVPO.
Generally, the court will include such orders as not to have any contact directly or indirectly with the plaintiff, not to assault, threaten, or harass the plaintiff or their family, not to possess any firearms and to turn over any firearms they do own to the sheriff, and so on. Thus, a violation of such an order occurs whenever the defendant does something they are ordered not to or that they are ordered to do. For instance, if the judge orders the defendant not to have any contact directly or indirectly with the plaintiff and the defendant calls the plaintiff or has one of his friends do likewise, there has been a violation of the DVPO, which constitutes a criminal offense.
In North Carolina, there are two kinds of DVPO’s that will satisfy the first element of the DVPO violation. First is an ex-parte DVPO, meaning the order was issued without the defendant having an opportunity to be heard. This DVPO is issued by a judge without any formal hearing and usually lasts from 7-10 days from the date of service, whichever is later unless continued by consent of the parties. These ex-parte orders are completely independent of the full one-year DVPO.
The second kind of DVPO in North Carolina is a full one-year DVPO, entered after a hearing or with the consent of both the parties.
Either of these DVPO’s will satisfy the first element of the DVPO violation charge. Furthermore, it is important to know that even if the full one-year DVPO is not entered, violation of the temporary ex-parte will still satisfy these elements.
For example, if an ex-parte DVPO is granted by the judge, and the defendant violates the terms of that order, by say, having contact with the plaintiff (or victim in the criminal setting); the plaintiff then dismisses the request for a full DVPO or the Judge in the DVPO hearing denies their request, so no full one-year DVPO is entered. The violation of this ex-parte will still satisfy the elements of the criminal charges.
Found in N.C.G.S. 50B-4.1, a DVPO violation is generally punished as an A1 Misdemeanor with a maximum punishment of up to 150 days in jail. The A1 misdemeanor is the only level of a misdemeanor where the defendant is jail eligible regardless of their prior record. Not all DVPO violations are punished as a misdemeanor. If the defendant violates the provision of the DVPO requiring them to stay away from a person or place and does so while in possession of a deadly weapon they may be found guilty of a Class H felony. Furthermore, if the defendant has been convicted of two prior offenses under NCGS 50B-4.1, the third conviction is a Class H Felony. A class H felony means that regardless of the defendant’s prior record they are eligible to go to prison, with a maximum possible punishment of up to 39 months in prison.
Finally, while incarceration, probation, and owing monies are the primary effects of a DVPO violation conviction there are several secondary effects that are important. One such effect is on future sentencing. A DVPO violation counts as points towards both misdemeanor and felony prior record level, meaning it will be on their permanent record. Another effect is that a conviction for a DVPO violation is considered by the state of North Carolina to be a domestic violence conviction, disqualifying the defendant from concealed handgun permit and pistol purchase permits.
If you have been charged with a crime involving Domestic Violence Protective Orders, or DVPO violations please contact us to set up a consultation with one of our criminal law attorneys to see how you can ensure your rights and future are defended. At Jetton & Meredith, we have attorneys who practice in the field of criminal law and have helped thousands of clients with their criminal law needs. It is now more important than ever to consult an attorney to make sure your rights are protected.