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Coronavirus, Courts, and Continuances in North Carolina - Part 2

Raleigh Criminal Defense Attorney John Fanney joins Law Talk with Bill Powers to discuss criminal charges and the courts during the Coronavirus Outbreak.

Bill Powers: One thing you said to me I thought was really interesting, John, is you're seeing a restraining order without the criminal charges. As a criminal lawyer, I'm regularly concerned that I want to make sure that clients understand because you got the paperwork, you need to look carefully at it. It may not just be a criminal charge. There may be a civil paperwork coupled with that. You're saying you're seeing the DVPO without criminal charges. You think they may be waiting for that.

John Fanney: That's correct. We have had a number of calls in the last couple of weeks involving nothing but the restraining order or the DVPO itself. There have been instances where I think maybe no investigation has been conducted. No one's called the police yet. Yet they're still going and seeking these orders. That's important for folks to get a lawyer and seek some representation on those because you have a number of important rights that you could have restrained if a protective order gets in place against you. I can give you one quick example. I have a young lady that came to the office this week who there could be some charges in the future if the object or the person she's seeking the order against actually disseminates some private images that he's threatened to release. So there's a lot of interesting ways these charges or these orders or applications come in to our office.

Bill Powers: Wow. That standard of proof on a civil DVPO is a civil standard. It's not a criminal standard.

John Fanney: Much lower.

Bill Powers: Right, much lower. And I have to remind clients that while district court, criminal court is not considered a court of record, general speaking, at least in my jurisdiction we don't even record them, there's no transcript of proceedings, there's no court reporter, a lot of DVPO matters, in fact, I think they may be by statute, are indeed recorded.

John Fanney: They are recorded. Yes, they are.

Bill Powers: The worry that I have, or I want to make sure people understand, is that in a criminal case you have a right to remain silent and you're not required to present evidence. The state cannot, the prosecutor cannot call you to the stand and have you testify. That's not true in a civil case, 50B, right?

John Fanney: That is correct. The opposing counsel can call the person who is the subject or the respondent or descendant, if you will, the person who the order is sought against can be called to testify and potentially implicate themselves in criminal activity. They can absolutely destroy their position in a domestic case if that happens after the 50B, if they're issued. Bill, I know you do a little family law work, and I think you understand the importance of or the relationship between domestic violence protective orders and maybe someone seeking an advantage in a domestic case.

Bill Powers: What is intended to be a shield can be pounded out into a sword at times.

John Fanney: That is correct.

Bill Powers: It is complicated because the advice that a criminal defense attorney may give, the way we approach that, not only can be but often is different than advice that may be given as part of a legal separation and children custody issues and all that.

John Fanney: Exactly.

Bill Powers: Some people don't realize that a 50B can actually address custody, visitation or lack of visitation, even who is allowed to return to the dwelling. It gets complicated. What I tell people regularly is don't just do something, stand there. I know that is kind of opposite of the saying that we all use, but before taking action, before proceeding forward, before saying anything to anybody talk to a lawyer. Now, John, talk a little bit about-

John Fanney: [crosstalk 00:14:42].

Bill Powers: ... if you will, about what happens if you violate a 50B. Let's say someone brings a 50B against their spouse, and then that spouse later sends a text and says, "Hey, I'm really sorry. They told me I had to do this. You can come back in the house." Then your client texts back. Then they work everything out, and he or she goes back in the house. Tell me your thoughts in your head how you analyze that.

John Fanney: That is one of the biggest concerns we have... because we work hard to try to keep a civil matter, like we're discussing right now of these orders, from turning into a criminal matter because it is absolutely something the state of North Carolina takes very seriously. If you have a protective order entered against you, whether you're invited back or not, whether you are prompted to return a text or a phone call, that is a violation of a protective order. That is a crime in North Carolina. Believe it or not, even with this virus going on like it is right now, if you violate a protective order in Wake County, Johnston County, Harnett County, you're going to get picked up, and you're going to jail. You're going to now be charged with a crime for violating a domestic violence protective order.

Bill Powers: Is that a minor crime or a serious one? I know the answer to this.

John Fanney: That's a very serious crime. It's a A1 misdemeanor here in North Carolina. There's only a couple of things that the state of North Carolina takes more seriously than domestic violence crimes and violating an order, and that's probably DWIs and [inaudible] sex offenses. But it's a very serious crime that could lead to long-term loss of rights. It could lead to going to jail. It could be placed on supervised probation, losing your ability to possess a firearm, not be allowed to be in certain areas. It's a very serious crime.

Bill Powers: Let's break this apart a little bit because I think clients are sometimes shocked to hear what all a 50B can do. What happens procedurally is that they will go down and request what's called a ex parte. It means you're not there when they bring it against you. They last only for a relatively short period of time: 10 days. During that 10-day period, they provide evidence to the court, it signs an order, and that order is the 50B protective order. It can say things like, "Don't try to contact them. Do not text them. Do not go the primary dwelling or residence. Do not go to children's school. Do not go to their place of work. Do not have anyone else that you know even a friend or family member try to contact them." Use of third parties can be a violation. Then there's also things like if you have any weapons, turn them into the sheriff's department. Break that down a little bit with me if you would. If you're speaking with a client, John, how do you explain that to them? I like to see the 50B itself because there's a bunch of different boxes to check. What are your concerns, or how do you analyze that?

John Fanney: We have folks to either send those to us via email or fax, or we have them come to the office and meet with us. We review it with them so, first, they completely understand what they can and cannot do. Then we stress with them that any form of contact whatsoever, be it a card or returning a text or having a friend say, "Hey, he's sorry," we stress to them absolutely you cannot do that. With regards to the firearms, obviously the order says you must turn those into the sheriff's department. That included parts of weapons, like magazines, clips. It also includes ammunition. It is a violation of both state and federal law to possess ammunition, firearms, or any part of a firearm while somebody's got a restraining order against them, even the 10-day order or the ex parte order that you mentioned.

Bill Powers: That can entail another conversation. I mentioned part of our job as defense lawyers is we're facilitators, we're explainers, if you will. But part of that can entail a process with the local sheriff, so like in Wake County you would contact someone at the Wake County sheriff's department. Tell me how you do that because you just don't want your client rolling up to the police station with a bunch of guns walking in to the station.

John Fanney: Oh, no. No. We normally check with our clients to see if they have things like concealed carry permits or make sure they have all their paperwork in order with their pistols if they have those, and we recommend our client do an inventory of the weapons. Sometimes depending on if there's been criminal charges issued or not especially, we call the sheriff's department, speak with someone with regards to the evidence, and we make arrangements for those things to be turned over. We encourage our clients to keep an accurate list, and we try to limit the contact between law enforcement and our clients if they've charged or not been charged just to make sure that there aren't any problems.

Bill Powers: So to be clear, a 50B is not a criminal charge, correct?

John Fanney: That is correct. We've had clients who were very confused about that issue: "How can I have committed or have this order entered against me if I have not committed a crime?" It is not just the commission of a crime that allows one of these orders to be entered against someone. We have had cases in the past where just the acts that fell short of being a crime or unreported activity formed the basis of this restraining order, so there's no crime necessarily that has to be charged. You can be subject to one of these orders, or you can get one of these orders or have one issued on behalf of yourself with no crime having been committed against you.

Bill Powers: And, maybe you can talk about this a little bit, you're not necessarily precluded from later attempting to bring charges whether it's via a criminal summons or even a warrant for arrest. If it's felony charges, there's no statute of limitations on that. Talk a little bit about that, if you will, like the timing and your legal rights as a criminal defendant or potential criminal defendant when you're talking to clients.

John Fanney: Well, I'm sorry. What was the end of that? [crosstalk 00:21:28]-

Bill Powers: Well, the question is let's say... You gave an example. We're seeing or you're seeing some of these where you're seeing a 50B issued but no criminal charges. That does not prevent or preclude the criminal charge. There's a period of time in which-

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