OBX criminal charges involving allegations of “domestic violence” are
Given the possible consequences of a conviction for assault on a female, communicating threats, or a felony assault such as assault by strangulation, it is imperative to speak with a criminal lawyer without delay.
DV charges can be a complicated mix of emotions, civil actions relating to some form of restraining order, and answering formal criminal charges – Danny Glover, OBX Lawyer
One would be remiss in failing to note that while certain legal matters may involve the same allegations, there can be separate and distinct legal proceedings in the various courts throughout the Outer Banks.
Depending on the nature and circumstances of the criminal charges, there may be appearances in civil district court to answer a Complaint and Motion for Domestic Violence Protective Order (N.C.G.S. Chapter 50B DVPO) and attendance in both district and superior court for felony or misdemeanor charges.
What is Domestic Violence or “DV?”
“DV” as is generally called, may involve an interaction between our civil and criminal courts.
Domestic violence and the determination of whether “acts of domestic violence” occurred is generally the subject of the restraining order in civil court, which is formally called a “protective order.”
In an application for ex parte DVPO, the Plaintiff files a type of formal lawsuit, setting forth the specifics of what took place. That may normally include explaining in the civil Complaint:
- The name of the Plaintiff
- The name of the Defendant
- The address of the Defendant
- The county where the Domestic Violence took place
- The nature or type of relationship between the Plaintiff and the Defendant
- The specific Acts of Domestic Violence
- The relief sought
The Burden of Proof for a DVPO
The Plaintiff bears the Burden of Proof in a Complaint and Motion for DVPO. That means they must prove to the Court’s satisfaction that Acts of Domestic Violence occurred and further that the court has subject matter jurisdiction and personal jurisdiction over the litigants.
The standard of proof is “By the Greater Weight of the Evidence.” The Plaintiff must show that more likely than not Acts of Domestic Violence took place.
In a civil action, the Defendant may be called as a witness by the Plaintiff. As may be legally appropriate, the Defendant in a DVPO / 50B hearing may assert 5th Amendment protections.
“Taking the 5th” as it is called, can result in a negative inference by the Court, which is a District Court Judge in North Carolina.
The Burden of Proof for Criminal Charges
The State carries the burden of proving each and every element of an alleged offense or violation of the NC Criminal Laws. That includes the substantive aspects of the allegations to make out a prima facie case for either a felony or misdemeanor charges.
The standard of proof is “Beyond a Reasonable Doubt.” The Defendant carries no burden of proof. The Defendant is not required to present evidence or proof of innocence.
The State cannot call the Defendant as a witness against himself.
Who is the Plaintiff in a 50B in North Carolina?
Ordinarily, the person who has been assaulted, harassed, and/or injured is the Plaintiff in an action for a DV restraining order.
It is possible for the Plaintiff to bring an action (file a civil lawsuit) on behalf of minor children who have been subject to acts of domestic violence, harassment, and even sex offenses.
Children are protected by 50B Orders, as it is always the Court’s duty to consider the safety and best interests of any minor children in a household.
Criminal Charges Related to DVPO
Criminal charges in North Carolina may also consider whether the relationship between the defendant (the person who has been accused, charged, or possibly arrested) and the alleged victim.
If in the commission of a crime relating to assault or assault and battery the respective parties are married, in a dating relationship, cohabitate and/or have children in common, certain rules may apply regarding setting bond and terms and conditions for release from custody.
That is also true even in instances when the relationship has ended. As such, DV charges do not necessarily require the defendant or the alleged victim to still be married or live together or even date.
Are Criminal Charges Required?
Formal criminal charges are not required to file for an ex parte DVPO. That’s true too for the issuance of a 1-year Order continuing the Order of Protection.
The civil court, whether it takes place in a special “50B Court” in the Outer Banks or in family court, pursuant to an action for separation or divorce, is not limited by the existence or the non-existence of criminal charges.
While criminal charges involving a sex offense, assault, or other “DV related” matter may result in a civil filing, it is not required.