Domestic Violence cases require special attention in part because they are handled differently from other cases charged in North Carolina. A domestic violence case is a case in which the crime was committed in the context of a prior or existing domestic relationship.
For instance, a fight between two people who were formerly in a dating relationship may qualify as a domestic violence case, even if they haven’t dated in months or years. In addition, a fight or assault among a married couple will qualify as a domestic violence case.
A domestic violence case involving misdemeanors – an assault on a female, simple assault, communicating threats, injury to personal property, stalking, and so forth – is usually handled in courtroom 303 of the Wake County Justice Center. A domestic violence case involving felonies is treated much the same as any other felony case procedurally, but may include additional elements, including no contact orders.
My husband has been arrested for Domestic Violence. What Can I Do?
A domestic violence case usually begins with call to police that results in an arrest. Sometimes both parties may have some culpability – both parties assaulted the other – but police often will arrest just one person, usually the person they think is more responsible.
Once the phone call is made and police come to the location, the decision about whether to charge or prosecute is outside the hands of the participants. Police in many cases will charge someone with a crime. And the prosecutor, after evaluating the case, will make the ultimate decision about whether to prosecute.
At that point, it is important for the person being arrested to have an attorney as quickly as possible. Sometimes that attorney can meet with the person in custody. If at all possible, the person should have representation at the First Appearance, because the judge will make a determination about whether to impose a no contact order or limit contact between the parties.
If a no contact order is imposed, it may be days or weeks before the two parties can communicate again.
Can I have a Domestic Violence charge dropped?
Most domestic violence charges are not simply dropped. The Assistant District Attorney assigned to the case will review the facts, talk to the officer, talk to witnesses, and talk to the victim. But even if the victim wishes to drop the charge, unless the crime charged is very minor, the prosecutor rarely simply drops the charge.
This does not foreclose the possibility of a good outcome. But it will take time.
In short, a charge will not be dropped in most cases simply because the victim requests it.
How can I avoid a domestic violence conviction?
For many people, a fight in a marriage or relationship that escalates can result in a criminal charge that now creates significant problems, not just in terms of the person’s criminal history, but also because the charge or conviction may affect a person’s livelihood. This is especially the case in certain professions, especially those licensed by boards, or those involving the use or possession of a firearm.
Certain domestic violence convictions will cause the person to give up their gun rights by federal law. The result is that possession of a firearm after even a misdemeanor domestic violence offense, such as an assault on a female offense, may be a crime under federal law.
In addition, a pre-trial release order, or a civil domestic violence order may also include provisions that prohibit the possession of firearms.
A domestic violence charge, like a DWI charge, is relatively common, and is an offense that, if not handled correctly, can lead to collateral consequences.
If the person has a strong case and has been wrongly charged, or was acting in self-defense, the person may have a viable case that can be won at trial. The risk of trial is, of course, that the judge (in a misdemeanor bench trial) or jury (in a Superior misdemeanor appeals or felony trial) may believe the victim, the police, and witnesses.
In that case, the punishment may be more severe than had the person taken a plea offer, or enrolled in a deferrral program.
A second option may be a deferred prosecution (deferral, or diversion) program that allows the person an opportunity to achieve a dismissal of the charges, but requires that the person first attend one or more educational programs with the express purpose of learning to be non-abusive.
The Domestic Violence courtroom is focused around ending the cycle of violence, which is a term of art applied to the repeated pattern of fights, assaults, threats, and intimidation that can occur in a marriage or domestic relationship.
As a result, especially in misdemeanor cases where the defendant has not previously been enrolled in a deferral program or convicted of a domestic violence-related crime, a deferred prosecution agreement may be offered.
Should I Enroll in a Deferred Prosecution Agreement?
Whether you should enroll in a domestic violence related deferred prosecution agreement will depend on the facts of your case, and your particular circumstances. You should talk to your criminal defense lawyer about these issues before enrolling. Once you enroll, you are bound by the agreement and if you later decide not to comply, in all likelihood you will be convicted of the original offense and may even be sentenced to do at least what you were required to do as part of the agreement.
The advantage of a deferred prosecution agreement is that, if you are able to comply with all the terms and conditions, you will get the benefit of the agreement, which can be either a reduction in charges, a Prayer for Judgment Continued, or a dismissal of all charges.
The disadvantage of the deferral agreement is that, if you fail to comply, you have already agreed to plead guilty to the charge, and will be ultimately found guilty. In addition, many deferred prosecution agreements require the defendant to give up any right he may have to an expungement, which means that while the charges may be dismissed, your record will not be expunged.
In addition, the deferred prosecution agreement, which in most cases is at least a year in length, will require the person to complete various programs during which the case remains in pending status. Consequently, if you plan to change jobs during the year, a new employer may look at your record to see the pending charge, even if you are enrolled in a deferred prosecution agreement. At the very least, having to explain the agreement and process may be embarrassing at the very least.
Can I get the no contact order lifted?
There are two types of no contact orders related to a domestic violence case. The first type is a civil domestic violence order, which would only be imposed if the person filed a Chapter 50B complaint in civil court. That 50B complaint may result in an ex parte order prohibiting contact, which precedes a hearing at which a judge may impose a year-long “permanent” order. If you’ve been served with a 50B order, you should hire a lawyer in order to contest the 50B or, at the very least, try to work out an agreement that is more reasonable.
Almost all domestic violence crimes result in an automatic no-contact order that will be imposed when the person first appears before a magistrate, and at the first appearance before a District Court judge. That order is a condition of pre-trial detention or release, and requires that the person have no contact with the victim, direct or indirect, by any means, unless the judge specially modifies the order to permit contact for particular reasons.
This criminal pre-trial domestic violence no-contact order typically remains in effect until the case is resolved, either through trial, a plea, or a deferral agreement. At that point, the no contact order will be lifted, if the person is found not guilty at trial, or may be modified by the plea agreement, the judgment if the person is found guilty, or the deferred prosecution agreement.
It may be possible to get the no contact order lifted prior to trial, but usually the order is lifted with the consent of the District Attorney, and usually only after the prosecutor speaks to the victim and obtains his or her consent.
Such modification is usually made at a First Appearance, which is why it is important to have an attorney hired as soon as possible to facilitate the lifting of that order.
In most cases, a no contact order that is modified will be changed to allow the defendant to have contact with the victim, but orders the defendant not to harass, assault or threatened the victim (also called a no “HAT” order).
There is a no contact order. But my wife wants me to talk to her. What do I do?
You may not violate an order, and the alleged victim may not give you permission to violate the order. If your wife is the alleged victim but wishes to have you contact her, you may not contact her if a no contact order exists, even if she promises not to tell police.
Only a judge may modify the order. It is important that you not violate the order. It is important that you carefully read and consider the order, and honor all of the provisions.
If the victim – the person you are not permitted to contact – contacts you, you may not return the contact. It is crucial for you to avoid contact, to not speak to the person, and to not respond to efforts to contact you.
In fact, you may not send messages through third parties, such as parents, friends, or children, or by email, Facebook, Twitter, or messaging. Indeed, some people have been convicted for making off-hand comments about the case on Facebook because courts have held that the person knew or should have known that the comments would get back to the victim.