What Happens if I Violate a Charlotte Domestic Violence Protective Order?

Even though a Restraining Order is granted by initiating a civil action, if you violate an order, you will face criminal charges. These charges are serious, you can and will be placed in jail. Individuals will view you as a violent offender when they view your criminal record, and if you have violated an order multiple times, you can even be charged with a Felony. If you’ve allowed someone to obtain a Restraining Order against you and you are facing a 50B Protective Order Violation, you must stop it now before it gets even further out of control. A Restraining Order is a very powerful tool that many individuals abuse to the detriment of others.

Our Family Lawyers and Criminal Attorneys assist individuals in aggressively defending 50B Domestic Violence Protective Orders Violations. Sheehan to speak with an Lawyer today.

A knowing violation is a Class A1 misdemeanor under G.S. 50B-4.1(a)

In North Carolina the criminal exposure for breaching a protective order sits in G.S. 50B-4.1(a), which makes it an offense for a person to knowingly violate a valid protective order entered under Chapter 50B, or a valid protective order entered by the courts of another state or an Indian tribe. The base offense is a Class A1 misdemeanor, the most serious misdemeanor class in North Carolina.

The word that carries most of the argument is “knowingly”. The State must prove that the defendant knew of the order, which is ordinarily established through the sheriff’s return of service. A person told about an order informally, or served with a different document, is not in the same position as one who has been served under G.S. 1A-1, Rule 4 with the order, complaint and notice of hearing.

The order need not be a final one. G.S. 50B-4.1(h) provides that “valid protective order”, as used in that section, includes an emergency or ex parte order entered under Chapter 50B, and G.S. 50B-4(f) says the same for enforcement under G.S. 50B-4(c) and (d). An order that is in force only until the return hearing is enforced in exactly the same way as an order entered for a year.

Arrest on a violation: where the statute compels it and where it merely permits it

In North Carolina an officer who has probable cause to believe a protective order has been knowingly violated does not have to seek a warrant first, and for two categories of order provision the officer has no discretion at all. G.S. 50B-4.1(b) provides that a law enforcement officer “shall arrest and take a person into custody, with or without a warrant or other process”, where the officer has probable cause to believe that the person knowingly violated a valid protective order excluding the person from the residence or household occupied by a victim of domestic violence, or directing the person to refrain from doing any or all of the acts specified in G.S. 50B-3(a)(9) — threatening, abusing or following the other party, harassing that party, cruelly treating or abusing an animal, or otherwise interfering with that party. A knowing breach of some other provision of the same order, such as one dealing with support, custody exchange, possession of property or the purchase of a firearm, is still an offense under G.S. 50B-4.1(a), but the mandatory-arrest duty in subsection (b) does not reach it. G.S. 15A-401(b)(2) separately authorizes warrantless arrest for a misdemeanor under G.S. 50B-4.1(a) that was not committed in the officer’s presence, which is how most of these arrests are in fact made.

Pretrial release then follows the domestic violence rules rather than the ordinary ones. G.S. 15A-534.1 applies to a charge of violating an order entered under Chapter 50B, so the judicial official who determines the conditions of pretrial release is a judge, and a defendant may be retained in custody not more than 48 hours from arrest without a determination by a judge. Where a judge has not acted within that period, the magistrate acts instead.

The order itself remains in force throughout. G.S. 50B-4(g) provides that a valid protective order is enforced during the pendency of an appeal, and a pending criminal charge does not suspend any provision of the civil order.

The circumstances that turn a violation into a felony

In North Carolina Chapter 50B contains several felony grades that operate on top of the base misdemeanor, and each has its own trigger.

• Under G.S. 50B-4.1(d), a person who commits a felony at a time when the person knows the behavior is prohibited by a valid protective order is guilty of a felony one class higher than the principal felony described in the charging document, though the subsection does not apply to a conviction of a Class A or Class B1 felony or to a conviction of an offense set out in subsection (f) or subsection (g)
• Under G.S. 50B-4.1(f), a person who knowingly violates a valid protective order after having been previously convicted of two offenses under Chapter 50B is guilty of a Class H felony
• Under G.S. 50B-4.1(g), a person who, while in possession of a deadly weapon on or about his or her person or within close proximity to his or her person, knowingly violates a valid protective order by failing to stay away from a place, or a person, as so directed under the terms of the order, is guilty of a Class H felony
• Under G.S. 50B-4.1(g1), knowingly violating a valid protective order by entering property operated as a safe house or haven for victims of domestic violence where a person protected under the order is residing is a Class H felony, whether or not that protected person is present on the property at the time
• Under G.S. 14-134.3(b), domestic criminal trespass on property operated as a safe house or haven for victims of domestic violence while armed with a deadly weapon is a Class G felony
• Under G.S. 14-277.3A(d), committing the offense of stalking when a court order prohibiting similar behavior is in effect is a Class H felony

Firearm provisions produce their own separate charges

In North Carolina the firearm terms of a protective order are enforced through their own criminal statutes rather than as ordinary violations of the order, and both statutes presuppose that the court made a firearm order in the first place. G.S. 14-269.8 operates “in accordance with G.S. 50B-3.1” and applies “if ordered by the court”: where the court has so ordered, it is unlawful to possess, purchase or receive, or attempt to possess, purchase or receive, a firearm, machine gun, ammunition or a permit to purchase or carry a concealed firearm, for as long as that protective order or any successive protective order is in effect, and a violation is a Class H felony.

Where the court ordered surrender of firearms, ammunition and permits under G.S. 50B-3.1, failure to surrender is prosecuted under G.S. 50B-3.1(j), which likewise makes it a Class H felony. Surrender is due immediately on service where the items are to hand, and otherwise within 24 hours of service at a time and place specified by the sheriff.

These charges can follow even where no contact with the protected party is alleged. A defendant who has complied with every no-contact term of the order but has kept a firearm the court ordered surrendered under G.S. 50B-3.1 has committed a separate felony offense. The converse matters just as much: where the court made none of the findings G.S. 50B-3.1(a) lists and the order contains no firearm provision, neither G.S. 14-269.8 nor G.S. 50B-3.1(j) is engaged by the order, and the restrictions on the defendant are only those the order states. Either conclusion is reached by reading the order, not by assuming what protective orders generally contain.

Contempt is a separate route, and criminal contempt can foreclose prosecution

In North Carolina a party who alleges a breach of a protective order is not limited to reporting it to the police. G.S. 50B-4(a) provides that a party may file a motion for contempt for violation of any order entered under Chapter 50B. That motion is heard in the district court that entered the order, and contempt proceedings are governed by Chapter 5A.

Civil contempt is used to compel compliance with an order that is still in force; criminal contempt punishes past conduct. Civil contempt, being remedial, can be pursued while a charge under G.S. 50B-4.1 is pending, but criminal contempt generally cannot: under United States v. Dixon, 509 U.S. 688 (1993), applied in State v. Gilley, 135 N.C. App. 519 (1999), and State v. Dye, 139 N.C. App. 148 (2000), a finding of criminal contempt for violating an order that prohibited the same acts bars a later prosecution for the criminal offense, so in practice one route or the other has to be chosen.

The order can also be modified or dissolved, but only by the court. A defendant facing an allegation of breach cannot rely on an informal understanding with the protected party, and a party who wishes the terms changed must move the district court to change them.

Contact initiated by the protected party is not a defense in itself

In North Carolina a protective order restrains the defendant, not the plaintiff. The order is a judgment of the court, and the protected party has no power to suspend it, waive it or consent to contact that it prohibits. A defendant who responds to a call, a message or an invitation from the protected party has still done the act the order forbids, and G.S. 50B-4.1(a) asks only whether the defendant knowingly violated a valid order.

That does not make the circumstances irrelevant. Who initiated the contact, what the order actually says, whether the term said to have been breached is clear on its face, and whether the defendant was properly served all bear on whether the State can prove a knowing violation. Orders differ in their terms, and the analysis begins with the language of the order rather than with a general idea of what protective orders require.

The only reliable way to change what an order permits is a motion to modify it. Until the court signs a modification, the order as written is what is enforced under G.S. 50B-4(c), without further order of the court and in every county in North Carolina.

Common questions

Written for North Carolina law and reviewed by David P. Sheehan, attorney, Charlotte. General information, not legal advice — see the disclaimer.

Related questions

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