What Happens if I’m Arrested for Domestic Violence?

As practicing Attorney’s in Charlotte North Carolina, a great deal of our practice is spent in Criminal Court assisting clients with charges for Domestic Violence and related issues such as Assault, Assault on a Female, Harassing Phone Calls and Communicating Threats.

In Charlotte North Carolina, if you are arrested for one of these crimes and an officer documents the crime as Domestic Violence, your case will be tagged and follow the Domestic Violence path. Once arrested, you will appear before a magistrate to set bond; however, serious misdemeanors, repeat offenders and some felonies require a judge, not a magistrate to set bail. Additionally, North Carolina has enacted legislation, which requires some individuals under specific circumstances that are charged with Domestic Violence to spend a minimum of 48 hours in jail before being released.

Once you are processed, if a magistrate is unable to set bail, you will either have an appearance in courtroom 4150 for Domestic Violence related Felonies or courtroom 4130 for Domestic Violence Misdemeanors. At your bond hearing, a judge will assess your case and set a non secured bond, secured bond or no bond at all. At this point in your legal proceeding, having a Lawyer present to guide you and your family member is crucial as an individual is not necessarily awarded a court appointed attorney at this point and the bond set could be excessive.

Sheehan at (704)332–5858 to speak with an Attorney today.

What the 48-hour rule in G.S. 15A-534.1 actually does

In North Carolina the 48-hour rule is a rule about who sets the conditions of release, not a mandatory period in custody. G.S. 15A-534.1 provides that for the charges it covers “the judicial official who determines the conditions of pretrial release shall be a judge”, and that “a defendant may be retained in custody not more than 48 hours from the time of arrest without a determination being made under this section by a judge”. Where a judge has not acted within that period, the magistrate must act under the section instead.

The 48 hours is therefore a ceiling on custody without a judicial determination rather than a minimum term. A judge sitting on the domestic violence calendar can and often does set conditions well inside the period, and a defendant released at that point is not required to serve out the remainder of it.

The section also requires the judge to obtain and consider a criminal history report before setting conditions, which is one reason these determinations are not made by a magistrate at the jail in the ordinary way.

Which charges and relationships bring the section into play

In North Carolina G.S. 15A-534.1 is triggered by a combination of offense and relationship rather than by a label applied at the scene. It applies where the defendant is charged with assault on, stalking, communicating a threat to, or committing certain felonies upon a spouse or former spouse, a person with whom the defendant lives or has lived as if married, or a person with whom the defendant is or has been in a dating relationship as defined in G.S. 50B-1(b)(6). It also applies to a charge of domestic criminal trespass under G.S. 14-134.3 and to a charge of violating an order entered under Chapter 50B. The dating-relationship category is the one most often overlooked, and overlooking it leads people who were never married to and never lived with the complainant to expect ordinary magistrate release when the judge-only rule in fact applies.

Where the section does not apply, the ordinary conditions of pretrial release under G.S. 15A-534 are set by a magistrate in the usual way. That is why two people arrested on apparently similar allegations can be processed very differently, and why the relationship pleaded in the warrant matters as much as the offense charged.

Arrest itself is often warrantless. G.S. 15A-401(b)(2) allows an officer to arrest without a warrant for a misdemeanor under G.S. 14-33(a), 14-33(c)(1), 14-33(c)(2) or 14-34 committed out of the officer’s presence where the offense was committed by a person with whom the alleged victim has a personal relationship, and for a misdemeanor under G.S. 50B-4.1(a).

The conditions a judge may impose beyond a bond figure

In North Carolina the conditions set under G.S. 15A-534.1 are not limited to a monetary bond, but the custody power in the section is narrower than it is usually described. Under G.S. 15A-534.1(a)(1) a judge may retain the defendant in custody for a reasonable period of time while determining the conditions of pretrial release, and only on two determinations: that the immediate release of the defendant will pose a danger of injury to the alleged victim or to any other person or is likely to result in intimidation of the alleged victim, and that the execution of an appearance bond as required by G.S. 15A-534 will not reasonably assure that such injury or intimidation will not occur. That is a power to hold briefly while conditions are settled, not a power of preventive detention, and the conditions the judge then imposes are directed at contact rather than at money.

Those conditions commonly include staying away from the home, school, business or place of employment of the alleged victim, refraining from any contact direct or indirect, and abstaining from alcohol with verification through a monitoring system. A no-contact condition of pretrial release operates independently of any civil protective order and is enforced through the criminal case.

Breaching a condition of release is not the same as breaching a 50B order, and the consequences are different. A condition of release can be modified only by the court that set it, and the practical effect at the outset is often that a defendant cannot return to the residence even where no civil order has yet been entered.

The charges that most commonly follow a domestic violence arrest

In North Carolina there is no offense named “domestic violence”. The conduct is charged under ordinary criminal statutes, and the domestic character of the case is recorded separately on the judgment.

• Simple assault, assault and battery or simple affray under G.S. 14-33(a), a Class 2 misdemeanor
• Assault inflicting serious injury or with a deadly weapon under G.S. 14-33(c)(1), a Class A1 misdemeanor
• Assault on a female under G.S. 14-33(c)(2), which requires that the defendant be “a male person at least 18 years of age”, a Class A1 misdemeanor
• Assault inflicting serious bodily injury under G.S. 14-32.4(a), a Class F felony
• Assault inflicting physical injury by strangulation under G.S. 14-32.4(b), a Class H felony
• Communicating threats under G.S. 14-277.1, a Class 1 misdemeanor, which requires among other elements that “the person threatened believes that the threat will be carried out”
• Misuse of the telephone under G.S. 14-196, a Class 2 misdemeanor
• Stalking under G.S. 14-277.3A, a Class A1 misdemeanor, rising to a Class F felony on a second stalking conviction
• Domestic criminal trespass under G.S. 14-134.3, a Class 1 misdemeanor

The domestic violence designation is written into the judgment

In North Carolina a conviction for an offense involving assault, communicating a threat, or any of the acts defined in G.S. 50B-1(a) is marked as involving domestic violence even where the offense itself is not so named; convictions outside those categories, such as domestic criminal trespass, do not trigger the determination. G.S. 15A-1382.1 requires the judge to determine whether the defendant and the victim had a personal relationship and, where that is found, to “indicate in the judgment of conviction that the case involved domestic violence”. The clerk must ensure that the official record includes the determination, “so that any inquiry into the defendant’s criminal record will reflect that the offense involved domestic violence”.

That designation is why a Class 2 misdemeanor in this category behaves unlike the same offense in any other setting. It travels with the record, and the statute directs that any inquiry into the defendant’s criminal record will reflect that the offense involved domestic violence, so employers and licensing bodies running a record check will see it. What the designation does not do is alter the offense class, the elements or the sentencing exposure of a later charge; a prior conviction is counted for prior record level in the ordinary way whether or not the judgment carries the notation.

Sentencing carries a treatment requirement of its own, and it is a mandatory one. G.S. 15A-1343(b)(12) makes attendance at and completion of an abuser treatment program approved by the Domestic Violence Commission a regular condition of probation where the court finds the defendant responsible for acts of domestic violence and such a program is reasonably available to the defendant, unless the court finds that this would not be in the best interests of justice. Because G.S. 15A-1343(b) lists the regular conditions a defendant “must” satisfy, the program is not something the court has to be persuaded to add once those findings are made.

The civil 50B case often runs at the same time

In North Carolina an arrest is frequently accompanied by a Chapter 50B complaint filed by the same complainant, and the two proceedings move in parallel. The civil case is heard in the district court under G.S. 50B-2(a), where an ex parte order may already have been entered and the return hearing must be held within 10 days of issuance or seven days of service, whichever occurs later. The criminal case follows its own calendar.

The civil hearing usually comes first, and it is a hearing at which the defendant may be called to give evidence on facts that are also the subject of a pending criminal charge. Anything said becomes part of a transcript that is available to the State. The sequence in which the two matters are addressed, and how the defendant participates in the civil hearing, are decisions made against that background.

Whether the criminal case proceeds is not decided by the complainant. Under G.S. 15A-931 the decision to dismiss the charge voluntarily rests with the prosecutor, orally in open court or by written dismissal filed with the clerk; the court can also dismiss for legal insufficiency, but the complainant has no power of dismissal at all. In Mecklenburg County that decision rests with the District Attorney’s office, whatever the alleged victim’s position may be.

What happens to the record if the charge does not result in conviction

In North Carolina a dismissed charge or a finding of not guilty still leaves a record of the arrest and the charge until it is removed, but the route to removal turns on when the case ended. Under G.S. 15A-146(a4), where all charges in the case were disposed of on or after 1 December 2021 by dismissal without leave, dismissal by the court, or a finding of not guilty or not responsible, the charges are expunged by operation of law and no petition is required; the subsection excludes a case in which a felony charge was dismissed pursuant to a plea arrangement. Cases falling outside that subsection, including older dispositions, proceed by petition to the court under the earlier subsections of G.S. 15A-146. Establishing which route applies is worth doing before anything is filed.

The civil side is separate. A Chapter 50B file is a civil record of the district court, and the expunction provisions of Chapter 15A address criminal records rather than civil ones. An order entered into the National Crime Information Center registry by the sheriff under G.S. 50B-3(d) ceases to be enforceable when it expires.

Because the criminal designation under G.S. 15A-1382.1 attaches to a judgment of conviction, it follows the outcome of the criminal case rather than the outcome of the 50B action. The two can end differently, and often do.

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

• How Is a 50B Domestic Violence Protective Order Obtained?
• How Long Will a 50B Order Stay in Effect?
• What Happens if a 50B Domestic Violence Protective Order Is Granted?
• What Happens if I Violate a Charlotte Domestic Violence Protective Order?
• What Legal Threshold Must Be Met for Domestic Violence?