North Carolina Criminal Law 50B-4.1(a): Violation of Valid Protective Order
Violation of a Valid Protective is a criminal charge created by and categorized within the Domestic Violence civil statute. North Carolina Civil Law 50B-4.1(a) codifies the criminal offense.
The State bears the Burden of Proof which is Beyond a Reasonable Doubt. It is worthy to note that the underlying Domestic Violence Protective Order or “DVPO” requires proof by the Greater Weight of the Evidence (more likely than not).
Proof Beyond a Reasonable Doubt that fully satisfies or entirely convinces the Finder of Fact.
To prove a defendant committed the crime of Violation of Valid Protective Order, the prosecutor must present the prima facie elements as set forth in the NC Pattern Jury Instruction (PJI) 240.50:
- There existed at the time of the alleged offense a Domestic Violence Protection Order
- That the DVPO was valid
- Service is required on the Defendant
- The Defendant failed to comply with the terms and conditions of the 50B Order, violating the Order
- The Defendant’s violation was intentional and not a mistake
- Proper Service of Process of the Restraining Order denotes the accused knew the conditions and terms of the 50B Order.
A civil cause of action is brought in Mecklenburg County District Court, complaining of “acts of domestic violence.” The Plaintiff alleges within his complaint that, “The Defendant punched me in the face with a closed fist. She also told me she was going to kill me and then herself.”
Upon taking evidence at an Ex Parte hearing, the presiding judge issues an emergency 50B Domestic Violence Protective Order and sets a hearing date to take place within ten days.
Within the terms and conditions of the temporary protection order, the Court directs, “The Defendant shall not attempt to contact the Plaintiff by any means, including by telephone, email, texting, social media, or personal contact.”
The office Sheriff of Mecklenburg County attempts service of the DVPO, but is unable to locate the Defendant. During the period of the temporary restraining order, the Defendant Respondent repeatedly calls and texts the Plaintiff, apologizing for her conduct.
While there existed a valid Domestic Violence Protection Order and the Defendant technically violated the terms and conditions of the Order, the Defendant had not been properly served with the Compliant and Motion and the associated Court Order.
As such, Defendant cannot be convicted of Violation of a Valid Protective Order given the Defendant’s conduct was not intentional. Defendant cannot be held responsible to follow an Order that she did not receive due to lack of formal service of process.
The Defendant is properly served with a valid 50B Restraining Order. The Order states, “Defendant shall not threaten or harass the Plaintiff. Defendant shall not email, text, telephone, or attempt to contact the Plaintiff.”
No other terms and conditions are set forth within the Order. Two days after filing and during the 10-day ex parte Order, the Plaintiff texted the Defendant, writing, “Come home. I’m not going through with it. I’m dismissing the restraining order.”
In response, the Defendant returns to the marital residence with the full consent of the Plaintiff. Plaintiff thereafter attacks the Defendant with a knife, who then calls the police.
Plaintiff is arrested for Assault with a Deadly Weapon. Defendant is also arrested for Violation of Valid Protective Order.
Despite Plaintiff’s stated desire “to dismiss” the DVPO, only a Court of competent jurisdiction can set aside a valid 50B Order.
While the Judge would clearly consider whether the Plaintiff wishes to amend or otherwise dismiss the restraining order, until that is formally done the DVPO remains in place and is valid.
As such, the Defendant can be charged with the criminal offense of violating a valid Domestic Violence 50B Order.
Plaintiff files for protection under Chapter 50B. Plaintiff and Defendant are married and have resided together for 20 years. The Court issues an DVPO, setting forth only, “Defendant shall not assault, threaten, or harass the Plaintiff.” The Court issues no Order regarding social media contacts, telephonic communications, texting, or email.
Defendant and Plaintiff remain married and live within the marital residence. During a counseling session, which both parties attend together on a voluntary basis, Defendant tells Plaintiff, “I want a divorce. I’m going to take everything. No way the judge is going to give you the kids. You’ll never see your babies again. I hate you. You’re the stupidest person I’ve ever met. You could be the dumbest person on the face of the earth.”
Plaintiff seeks criminal charges with a Magistrate Judge in Charlotte. The Court issues a criminal summons, citing as a basis for the offense, “Defendant did threaten to take Plaintiff’s children and did further harass the Plaintiff by calling him stupid.”
Defendant in that instance should not be convicted of a criminal charge. The “threat” to take children as part of a legal proceeding for divorce and/or child custody, is not a “threat” involving an assault or physical harm. Calling a spouse stupid is also not harassment for purposes of a 50B Order violation.
Other related felony or criminal charges may include:
- North Carolina Criminal Law Chapter 14-33(a): Simple Assault Involving Physical Contact
- North Carolina Criminal Law 14-33(C)(2): Assault on a Female by a Male Person
- North Carolina Criminal Law 14-18: Voluntary Manslaughter Not Involving Self-Defense
- North Carolina Criminal Law Chapter 14-1: Felonies and Misdemeanors Defined
- DVPO Domestic Violence Protective Order
- What Is a 50B Domestic Violence Protective Order in North Carolina?
Violating a valid order requires an aspect of mens rea or criminal intent to commit the prohibited act. Proper Service of a Complaint and Motion for Domestic Violence Protection Order allows for the legal assumption that the Defendant is aware of and therefore legally liable for complying with the specifics of the Order.
The Defendant’s failure to read the 50B Order or fully understand the terms and conditions as set forth by the Court does not operate as a defense. Lack of specificity in a restraining order may provide defenses, as are unintentional violations due to random, unplanned encounters.5. Penalties
Under North Carolina Civil Law 50B-4.1(a): Violation of Valid Protective Order is predicated on a violation of a Civil Order that may be punished as a criminal offense, that being a Class A1 misdemeanor.
Such misdemeanor charges allow for a period of imprisonment of up to 150 days.
Violating a restraining order may result in bond revocation on a separate, but related criminal charge and can further serve as a legal basis for contempt of court proceedings.
A conviction for Class A1 misdemeanor charges may also require:
- Alcohol and/or Drug Substance Abuse Assessment
- Mental Health evaluation
- Supervised Probation
- Unsupervised Probation
- Costs of Court
- Supervised Probation Fees
Allegations of domestic violence are serious. That is especially true in instances where the Court issues a direct order, making it clear you should not contact, assault, threaten, or harass the alleged victim.
Protection Order violations include temporary ex parte matters as well as “permanent” 50B Orders that may be issued for a year at a time. Violation of the order, which is issued in civil court, is a serious criminal charge.
Similar Class A1 Misdemeanor offenses include things like Assault on a Child Under the Age of 12, Assault on a Government Official, Assault with a Deadly Weapon, and Assault on a Female.
The lawyers at our law firm handle both criminal and civil cases that involve a cross-over with some family law issues. It’s frankly not unusual to see matters that involve criminal allegations for “acts of domestic violence,” that also may be subject to a 50B violation.
Call Bill Powers NOW at 704-342-4357
You may also email Bill at Bill@CarolinaAttorneys.com Consultations for 50B Orders, criminal charges, and assault charges are free of charge. Everything you tell our staff and defense attorneys is confidential.