A common occurrence in the North Carolina Justice system is when there is both a criminal and a civil case stemming from the same action. This is very true when discussing domestic violence. In Domestic Violence situations it is very common to have both a restraining order and a criminal case pending at the same time. Handling these situations can be very complex and one can have a great effect on the other.
DVPO
The DVPO or restraining order is often the first thing that the court will handle from any domestic violence situation. While many people think that the best thing to do is just agree to the restraining order this can often have negative consequences. Also, there can be a great advantage to actually fighting the restraining order. Fighting the restraining order gives you an opportunity to get the person accusing you on the record and also challenge what they are saying happened. It also opens up the opportunity to get some additional discovery that may or may not be handed over in the criminal case.
The process for a DVPO works like this:
- First, a civil complaint is filed by the accuser.
- The judge may choose to issue a temporary order, also called the ex-parte order. It is important to know that while this is a temporary order, violation of this order falls under the same crime as violating the full order, even if the full order is never granted.
- Within 10 days there is a hearing date for the permanent or full order. If you haven’t been served, this date will often be continued.
- A full hearing is held, where the judge makes a determination on whether an act of domestic violence occurred and therefore whether a full order should be granted. It is important to know that the burden of proof for this year is significantly less than the beyond a reasonable doubt standard used for criminal cases. Also, all DVPO hearings are recorded, this means that whatever is said during this hearing can be used at a later date.
Criminal Process
When discussing a criminal domestic violence case, the first thing that you need to know is that the release process is not the same as it is for most other crimes. In Domestic Violence cases, the magistrate, or jail judge, cannot set your bond for at least 48 hours. During this 48-hour period they must put you in front of the first district court judge available, if none is available, then after the 48 hours, the magistrate can set your bond. When you are finally released, it is important to keep all of the paperwork you are given upon release as often the DVPO and notice of hearing are slipped in with the criminal documentation.
The process for a criminal case works like this:
- First appearance, this is where you tell the court whether or not you want a court appointed lawyer, want to hire a lawyer, or want to represent yourself. If you were arrested for a domestic violence case during the week this is also where your bond will be set and the presence of an attorney here to argue on your behalf can often make the difference between a high bond and being released.
- Trial Court Level Court Date. This court date will often not be scheduled for at least a few months after the event. This means that due to the relatively short amount of time that the DVPO can take, the criminal case is often completed long after the DVPO is.
Having a criminal case and a civil domestic violence protective order case at the same time can be very confusing, however, having the right legal team to fight for you can often not only clear the confusion, but put you on the front foot when dealing with each case individually and together as a whole. If you or someone you know has a domestic violence case pending call Jetton and Meredith Today!