Domestic Violence and Kidnapping Win

A client, referred to us, entered a home in Wake County in late 2016 after being distraught following the break-up with his girlfriend. He brought a shotgun. It was obviously an unconscionable act, involving violence and anger, and invoking fear and terror in his victims. Five were held hostage mid-day as the client demanded from the girlfriend why she had broke up with him. The client fired off two shots, one through a window of the home, and one into the air after the police had arrived to keep the police at bay.

There was no real criminal defense. The client had committed a felony breaking and interesting with intent to terrorize, he had kidnapped five individuals in the home by holding them briefly, and he had discharged a firearm twice into an occupied dwelling.

The district attorney requested a four year sentence, a sentence that would’ve neared what one would have gotten after a manslaughter conviction.

Following a three hour sentencing hearing, and which four defense witnesses testified, reports from a forensic psychologist was presented, and a report from a sentencing mitigating specialist was presented, the judge entered an entirely fair judgment including 24 months of incarceration, half of what the government had originally offered.

What is An Assault on a Female Charge in North Carolina?

Raleigh Assault on a Female AttorneyNorth Carolina has a number of different classifications for assault cases. Assaults can be charged at a misdemeanor or felony level and can be differentiated by age of the victim as well as gender. When a woman is assaulted, the alleged perpetrator is usually charged with an Assault on a Female, which is a Class A1 misdemeanor in North Carolina. Of all misdemeanor classifications, a Class A1 is the most serious.

But what exactly is an Assault on a Female? Many people think an assault is when someone lays hands on or strikes another person, but this is not actually the only scenario in which someone can be charged with an assault. A large number of our clients have gotten into a heated argument with their spouse and have called the police to help mediate the discussion. The policy of law enforcement in Wake County is that if the police are called, someone must be charged, even if there was no laying of the hands or any physical contact. What makes this charge unique is that if a female assaults a male, she is usually charged with misdemeanor simple assault unless there are serious injuries. But if a male assaults a female, he is charged with a higher level crime. This is because North Carolina has taken the position that violence against women is much more serious than other types of violent crime. A charge like this is detrimental in several ways:

  1. This means that someone will have to participate in the court process to resolve the case;
  2. The process will cost money for programs, fines, and an attorney;
  3. The accused will have a pending criminal charge on their background check until the case is resolved;
  4. If the case is resolved by plea or diversion program, or a guilty verdict is rendered in a trial, the criminal record is completely non-expungeable.

Let’s take a deeper look at each of these things. Once someone is charged, only the district attorney has the ability to drop the charges. So even if the “victim” wants the charges dropped, she does not get to make that decision. Even if the victim tells the DA she does not want to pursue charges, the DA is unlikely to drop them. This means that the defendant will need to work through the court system to resolve the case either by deferral program, plea agreement, or trial. Any of these options will take many months and unfortunately, will cost money. A deferral program will have costs associated with any recommended treatment or community service requirements. If found guilty, the defendant will be responsible for court costs and fines. If the accused hires an attorney, there is the cost for the legal fee.

As soon as a charge is pressed, a pending charge will appear on a background check. This can cause issues in terms of employment, school, and financial aid. In North Carolina, any crimes with an element of assault or non-expungeable unless the charges are fully dismissed or the accused is found not guilty in a trial. Officially, even if the charge is dismissed as part of a deferral program, the charge cannot be expunged. However, there are circumstances in which a Raleigh assault lawyer will be able to negotiate with the DA in advance to allow for an expungement at the conclusion of a deferral agreement.

Because the consequences are so high, it’s important to be informed, know your rights, and get the best criminal attorney possible to fight your case.

Domestic Violence Cases in North Carolina

Raleigh Domestic Violence Lawyer

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.

Domestic Violence and No Contact Orders

North Carolina, like most states, has special laws that govern crimes committed between people who have had a past or current intimate, familial, or dating relationship. These laws govern both heterosexual and same-sex relationships, although the recent passage of Amendment One (banning gay marriage in North Carolina) has put some of these laws in doubt as they apply to homosexual relationships.

Domestic Violence Defined

Chapter 50B of the North Carolina General Statutes defines domestic violence as it relates to civil restraining orders. In the criminal context, similar rules apply. It’s important to note that the word “violence” does not necessarily mean the criminal act was particularly violent. It merely is a catch-all term used to categorize all crimes where the alleged offender and the alleged victim have been in a personal, intimate, or familial relationship. It doesn’t, generally, apply to mere friendships or acquaintances, unless the friends or acquaintances have previously been in an intimate relationship.

In Raleigh, DV cases are handled in special courtrooms by special prosecutors and appear before judges who have been specially trained in DV-related issues. From the very beginning, a case that has been defined as “domestic violence” will be heard in courtroom 4A of the Wake County Courthouse. If there is an accompanying DV-related request for a protective order, that will be handled in courtroom 9A, which is a civil courtroom.

Types of Domestic Violence Cases

Domestic violence cases can include felonies. Felony-related domestic violence cases are handled by Wake County felony assistant district attorneys. Most DV cases are misdemeanors, however, and are handled by one of two specially assigned ADAs who focus on DV issues.

These crimes can include violation of a 50B Order, Assault on a Female, Battery on an Unborn Child, Simple Assault, Communicating Threats, Interfering with Emergency Communications, Injury to Personal Property, Injury to Real Property, Cyberstalking, Stalking, or Harassment.

Pre-Trial Release and Domestic Violence

The first issue in a criminal case involves pre-trial release. In many DV cases, the alleged offender is detained. In most other criminal cases, the person will be granted a bond immediately upon arrest by a magistrate. But in Domestic Violence cases, a person can be held without bond for up to 48 hours or until the first opportunity to appear before a District Court Judge.

That means that if a person is arrested on a Friday or Saturday night, the person will be held until Monday morning at 11:00 AM.

In most cases, the State will request a bond or pre-trial release, or some combination of the two and a requirement that the alleged offender have “no contact” with the alleged victim.

Even if the victim wants to talk to the defendant, the defendant is prohibited by the order from communicating in an fashion with the victim. If the defendant violates the order, he is subject to additional criminal penalties, including revocation of pre-trial bond.

The victim may be able to have the no contact order lifted by talking to the District Attorney or his victim witness assistant, and this can frequently be facilitated by the defendant’s lawyer.

It’s important to address the “no contact” order at the First Appearance hearing that occurs soon after arrest because failing to do so means, in many cases, that the defendant can have no contact with the alleged victim until at least the next hearing which typically occurs at least three weeks after the first appearance.

What is a No Contact Order?

A “no contact” order is exactly what it says. The defendant may not contact the victim by any means, direct or indirect, via phone, text, email, or social media. The defendant may not pass messages through family members. The defendant may not send gifts. The defendant may not call to apologize.

A violation of a valid “no contact” order may mean new additional criminal charges, and possible revocation of the initial bond conditions.

Some “no contact” orders may permit communication about children, but such communication must be limited to issues or the exchange of children.

A no contact order may only be lifted by the court, and usually will only be lifted with the consent of the District Attorney. However, if the judge believes that the defendant has persuaded the victim not to come to court for future hearings, the judge may reimpose the no contact order.

Disposition of a Domestic Violence Case

Treatment is an important part of Domestic Violence court, and, where the person has little or no criminal record, and the conduct was not especially bad, the defendant may be offered a deferral program. The deferral program involves at least four components:

  1. The Defendant agrees to participate in a treatment program of some sort.
  2. The Defendant writes an admission that may be used against the Defendant if he fails to complete the deferral program.
  3. The Defendant agrees not to get into any further criminal trouble during the course of the program.
  4. The Defendant agrees either not to harass, assault or threaten (HAT) the victim, or agrees to have no contact whatsoever, depending on the circumstances.

In addition, most DV deferral agreements do not permit the defendant to expunge his record upon completion of the program. While the defendant may earn a dismissal, the defendant can’t erase a record of the arrest from his record (as would be true in other criminal cases).

The Defendant must also come back to court (or have his attorney come back to court) with proof of having enrolled, begun attendance, and completed the programs at various review court dates.

No Deferral Agreement Offered. What Next?

If no deferral agreement is offered (or the defendant doesn’t believe he should have to complete a deferral agreement), the case will be resolved usually by plea or trial. Plea agreements in DV court are the same as plea agreements in any other criminal court. A trial in DV court is also similar.

If found guilty following a trial, the person can appeal his case to regular misdemeanor appeals court for a jury trial.

Change to North Carolina Domestic Violence Law

Each year the North Carolina General Assembly makes changes to North Carolina criminal law. You should be sure that the Raleigh criminal lawyer you hire is aware of recent changes – including the North Carolina Justice Reinvestment Act – which can dramatically affect the handling of criminal cases in Wake County. (Last year’s changes, for instance, included the addition of a new sentencing level in DWI charges that can lead to up to 3 years in prison and up to $10,000 in fines.)

The General Assembly has passed several new laws that will become the law of the state later this year, including changes to Domestic Violence laws. These special category of crimes are usually resolved in courtroom 4A of the Wake County Courthouse by a designated two-person team of prosecutors assigned by the Wake County District Attorney.

Under the recent change, as of December 1, 2012, any defendant placed on probation will be required to complete treatment in a state certified abuser treatment program, such as the DOSE program offered by Triangle Family Services. Failure to comply with the program will be reported back to the Court, and the court may impose additional sanctions for failure to enroll or successfully complete the program.

DOSE can also be imposed as a condition of unsupervised program, in which case the court must schedule a compliance review date within 60 days o the entry of judgment, and every 60 days thereafter until the defendant completes the program.

In addition, the court must enter on the judgment of conviction that the case involved domestic violence if the offense was an assault and the defendant and the victim had a personal relationship.

Collateral Consequences of a Domestic Violence Conviction

Most people are aware that a felony conviction will result in a loss of the right to keep and bear arms. It is a felony in North Carolina for a convicted felon to possess a firearm. It is also a felony under federal law with a possible sentence of up to 10 years for a felon to possess a firearm.

Unless your gun rights have been restored, a felony conviction means you can never possess a firearm or ammunition again in your life.

The same rule applies for certain kinds of Domestic Violence-related crimes, even if they are merely misdemeanors. The Lautenberg Amendment to the Violence Against Women Act (VAWA), also known as the Domestic Violence Offender Gun Ban makes it a federal offense for someone convicted of a Domestic Violence crime to possess firearms or ammunition.

Not all Domestic Violence offenses automatically mean that the convicted person’s gun rights are lost. 18 USC 921 specifies that in order for the offense to bar gun ownership, the offense must have:

as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.

For instance, assaults on a female surely mean that a person convicted of an AOF in North Carolina in a domestic violence scenario will lose his or her gun rights. But other DV crimes, including interfering with emergency communications, injury to personal property, and so forth may not actually result in a loss of gun rights.

People charged with DV cases must be aware of not only the immediate consequences of a conviction, but also the potential collateral consequences as described above.

Pre Trial Release Conditions

Jennifer Smith at the UNC School of Government’s criminal law blog has a useful post explaining the various exceptions to the general rule that people arrested ought to have conditions set upon which they can be released from custody. Those conditions may be as lenient as a “written promise to appear” or as part of a “pre-trial release” program, or may be unsecured bonds, secured bonds, or released into the custody of another (such as a parent or guardian). More here.

Among the various categories of people who are excepted from having conditions set are: drug traffickers, certain fugitives, people accused of certain methamphetamine offenses, probation violators, parole and post-supervision release violators, and people accused of capital offenses.

There are additional categories of defendants who may be denied pre-trial release, if only for a short time, including Domestic Violence defendants, who can be held for up to 48 hours or until they see a District Court judge, and DWI arrestees who may be held without bond until they either sober up or are able to be released into the custody of a sober person.

In addition, while the pre-trial release statutes are clear that the default position is a “written promise to appear,” in a very significant number of cases, bond is set no matter what the default position.

NPR aired a three part report on the Bail Bonding business a while back in other jurisdictions that noted the unhealthy connections between bail bondsmen who support candidates for judge who establish bonding conditions that then enrich the bail bondsman while, at the same time, keep thousands of people in jail who cannot afford to bond out under any condition or amount.

I’m unaware of any problems with connections between bail bondsmen and pre-trial release conditions in North Carolina, but it is always a concern where you have a semi-private system (bail bonding) in a public framework (the judicial system.)

Domestic Violence Cases in North Carolina

Domestic violence cases require special handling in North Carolina. In Wake County, for instance, Domestic Violence cases (which include all cases of violence involving people who have or are in intimate relationships) are handled in a special courtroom called 4A.

This courtroom is paid for by special funding from the federal government.

Given understandable concern, in particular, about the safety of women (wives, girlfriends, ex-girlfriends) and about children of couples, the courtroom treats suspected violence by men against women very seriously. While deferral programs are sometimes offered to defendants, they require an attorney who understands how to best position a client so that a deferral might be offered.

A deferral program might include a requirement that the defendant complete substance abuse education, or complete anger management programs. If the children are thought to be in danger, a deferral program might require that the man complete a program called SafeChild or its equivalent.

If a deferral program is offered, the person can usually expect a dismissal of the charges after a year’s time, provided the person stays out of trouble and completes the required elements of the deferral program.

What is a Domestic Violence Protective Order or 50B in North Carolina?

A Domestic Violence Protective Order (DVPO) is usually referred to in North Carolina as a 50B Order. The 50B stands for the Chapter of the North Carolina General Statutes (NCGS) that lays out the legal requirements of a 50B order and the relief that a person can get from such an order.

First, what is a 50B Order? A 50B Order is an order issued by a North Carolina District Court in response to a complaint by a party (the plaintiff) regarding physical abuse, or imminent threats of physical abuse. In response to the complaint, the Court may issue an order instructing the Defendant not to threaten, assault or harass the plaintiff. Or the Court may do much more, including making temporary decisions about custody of children, ordering the defendant to attend anger management courses, order the defendant to stay away from the plaintiff.

There are generally two parts to the Order. There is the Emergency Ex Parte order, and the Domestic Violence Protective Order. The Emergency Ex Parte Order can be granted upon a petition and a credible showing by the plaintiff that she (or he) has been physically abused or threatened and requires an emergency order protecting her (or him) from further abuse.

The Ex Parte order is a short term order – usually 10 days – which may require the defendant to not contact the plaintiff, or to relinquish firearms, or to do other things that reduce the potential for harm to the plaintiff. An Ex Parte hearing is a hearing by one party – the plaintiff – without the defendant present, so the court will not order anger management or other kinds of relief at an Ex Parte hearing.

Before a full Domestic Violence Protective Order (DVPO) can be ordered, the Defendant must receive notice through a complaint and summons of the hearing. The Defendant need not be present. For instance, if the Defendant avoids the hearing, the court can still issue the DVPO.

The Court’s DVPO can include any of the relief in NCGS Sec. 50B-3, including, but not limited to, “Require a party to provide a spouse and his or her children suitable alternate housing,” “Award temporary custody of minor children and establish temporary visitation rights pursuant to G.S. 50B?2 if the order is granted ex parte, and pursuant to subsection (a1) of this section if the order is granted after notice or service of process,” “Order either party to make payments for the support of a spouse as required by law,” and so on.

In other words, a DVPO is a very powerful tool. In addition, violation of a DVPO is a class A1 misdemeanor, punishable by up to 150 days in jail.

Domestic Violence: Who Presses Charges?

The Truth about Getting Raleigh Domestic Violence Charges Dropped

Often in the heat of an argument, a husband, wife, boyfriend, or girlfriend will call the police because they don’t know where else to go in order to calm a domestic situation. However, they usually don’t realize that the call will result in domestic abuse charges being filed by the State.

A Chain of Events

Calling the police, even if merely to calm the situation down, sets off a series of events that are no longer under the control of the two people in the relationship.

1. An arrest will be made
2. Someone – usually the male partner – will be held in custody until he sees a District Court judge, or up to 48 hours. If it’s a weekend, that means waiting in the Wake County Jail all weekend.
3. In most cases, a no contact order will be in place.
4. The accused person will probably not be able to return home
5. Family life and children will be affected

Dropping Charges is the State of North Carolina’s Decision—Not Your Spouse’s

Once the situation has calmed down, it’s common for the “victim” to want to drop the charges and try to get family life back to normal. But the decision is no longer in her (or his) hands. Assault on a female or Domestic Violence charges are filed by the State of North Carolina, and in nearly every case the District Attorney will refuse to drop the charges.

The reason domestic assault charges are brought by the State is to protect a battered spouse from being bullied into changing her or his story. The unfortunate result of this policy is that sometimes innocent people are arrested, jailed, and kept away from their families.



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