Avoiding Criminal Charges by Not Coming to Court

Not showing up for court is, generally speaking, bad trial strategy.  In criminal court, such behavior can result in such unpleasantness as entry of an order for arrest and the revocation of one’s driver’s license.  In civil court, a defendant’s failure to respond can result in a default judgment for the entire sum claimed by the plaintiff. Yet in criminal cases involving charges of violating a domestic violence protective order, some defendants are benefiting from their failure to appear in the civil action leading to entry of the protective order. The defendants argue that because they never appeared for the hearing in the earlier action, they did not know a domestic violence protective order was entered, and thus, could not have knowingly violated its provisions pursuant to G.S. 50B-4.1(a). They contend that they are entitled to dismissal of the charges on this basis, and some trial courts have agreed.

Though our appellate courts haven’t considered this issue, I’m highly skeptical that such arguments have merit when the alleged violations occur after the defendant was served with the 50B complaint and any ex parte order, regardless of whether the defendant actually received a copy of the final protective order.

How DVPOs Come About. A person entitled to relief under Chapter 50B may file a civil action in district court alleging acts of domestic violence and seeking entry of protective order. When such an action is filed, a summons must be issued and served upon the defendant pursuant to Rule 4 of the Rules of Civil Procedure. The summons must require the defendant to answer within 10 days of the date of service.  The complaint, notice of hearing, and any temporary or ex parte order that has been issued must be attached. At the hearing, if the court finds that an act of domestic violence has occurred, the court must enter a protective order restraining the defendant from further acts of domestic violence. G.S. 50B-3. Such an order may, among other types of relief, grant the plaintiff possession of the residence or household and order the defendant to stay away from the residence.  G.S. 50B-3(c) provides that “a copy of any order entered and filed under this Article shall be issued to each party.” The statute does not specify how issuance occurs. It seems clear, however, that personal service under Rule 4 is not required. As a practical matter, if the defendant appears at the hearing, the defendant is handed a copy of the order.  If the defendant does not appear at the hearing, the clerk carries out this directive by mailing a copy to the defendant and noting that service on the order. Sometimes, defendants contend that they moved or for some other reason did not received the mailed order.

Proving a Knowing Violation. The pattern jury instructions for violation of a domestic violence protective order provide that “[w]here a domestic violence protective order has been served on a defendant, you may presume that the defendant knew the specific terms of the domestic violence protective order.” N.C.P.I.—Crim. 240.50. The court of appeals in State v. Branch, 2011 WL 6402713, ___ N.C. App. ___, 720 S.E.2d 461 (2011) (unpublished op.), implicitly sanctioned that instruction when it found no error in a colloquy between the judge and defense counsel after the close of the evidence regarding whether the State had proved service. In Branch, however, the defendant stipulated to service after the State forecast testimony from the victim that the defendant had appeared at the underlying civil proceeding and was present when the order was issued.  This aspect of the factual circumstances in Branch may lead some defendants to argue that the presumption does not apply when the defendant was not personally served with the order.  As I said before, I’m doubtful that this is the case.

Like DWLR. The presumption stated in the jury instruction for violating a domestic violence protective order accords with the manner in which the State must prove knowledge of a license revocation for purposes of G.S. 20-28.  In that context, the courts have held that proof that DMV mailed notice pursuant to G.S. 20-48 raises a rebuttable presumption that the defendant received the notice and thus knew of the revocation. State v. Coltrane, 184 N.C. App. 140, 143 (2007), aff’d, 362 N.C. 284 (2008) (holding that State raised prima facie presumption of receipt and presumption “was clearly not rebutted” when defendant “chose not to present any evidence at trial”).

Purpose of Chapter 50B. More significantly, the very purpose of Chapter 50B—protecting victims of domestic violence—would be undermined by permitting a defendant to avoid prosecution for violating a protective order when the State cannot prove that the order personally was served upon him.  A defendant who is served with a summons for a Chapter 50B action has been notified that the plaintiff is seeking a protective order, since such an order must issue if the court finds that an act of domestic violence occurred.  A defendant ought not be able to thwart the enforcement of a protective order issued in such a proceeding by willfully failing to appear.  In considering similar provisions under Texas Law, the Texas Court of Criminal Appeals has characterized the “evident purpose” of the “requirement [] that the respondent be served with the application and notice of the hearing, without which the protective order is not binding” as ensuring “that the person to whom the protective order applies has knowledge of the order, or at the very least such knowledge of the application for a protective order that he would be reckless to proceed without knowing the terms of the order.”  See Harvey v. State, 78 S.W.3d 368, 371 (Tex. Crim. App. 2002) (stating that “[t]he requirements are only that the respondent be given the resources to learn the provisions; that is, that he be given a copy of the order, or notice that an order has been applied for and that a hearing will be held to decide whether it will be issued” and that “[t]he order is nonetheless binding on the respondent who chooses not to read the order, or who chooses not to read the notice and the application and not to attend the hearing.”); but see Small v. State, 809 S.W.2d 253, 256-57 (Tex. App. 1991) (finding evidence insufficient to sustain conviction for violation of domestic violence protective order where “[a]side from indicating that the appellant was served with notice of the hearing on the protective order, there is no evidence in this record that the appellant agreed to a protective order, attended any hearing or in any way participated, that he was ever served with a copy of the protective order, or that he in any way received notice, formal or informal, of the issuance or existence of the court order in question prior to his coming into the home”).

Have your say. That’s my view.  As always, if you see things differently or have something to add, please send in a comment below.  

16 thoughts on “Avoiding Criminal Charges by Not Coming to Court”

  1. I do not wholly disagree with your view, but would point out that it is ludicrous if the system has gotten in the habit of not perfecting personal service of the protective order on the defendant. For the same reasons that you point out, it is simply too important to just stick it in the mail… Also, the public policy supporting personal service/notice is much stronger in the case of DV than of DWLR.

  2. Defenderperson — why should plaintiff’s be required to effectuate personal service by sheriff – when service by US Mail an appropriate method of service after personal service of the Complaint. The rules of civil procedure do not require service by sheriff after the sheriff has served the complaint and summons.

  3. A person can get 150 days in jail for knowingly violating the protective order. He shouldn’t get any jail time for unknowingly violating the order, even if he simply blew off going to the hearing and so does not know what was ordered. He must be served with the order before he can be given 150 days in jail for sending his ex a text asking her to take him back or some such. If he didn’t go to the hearing he doesn’t know whether the motion for the order was granted or denied. It isn’t automatically a default judgment. In Wake County it is common for the ex parte order to be granted even without an allegation of domestic violence, just an allegation of fear and a desire for the ex not to come around her anymore. A different judge might preside over the hearing for the year-long protective order. The new judge might require an actual allegation of domestic violence (as the law requires). When no such allegation exists, the new judge might deny the motion even without the presence of the defendant in court.

  4. Professor Denning:

    Your argument seems to argue for the willful blindness standard (i.e. that DVPO respondents should not be allowed to be willful blind to the entry of the DVPO by not appearing at the DVPO hearing). See State v. Bogle, 376 S.E.2d 745, 747-48 (1989) (“Willful blindness is inferred when the jury finds (1) the defendant is aware of the high probability of the existence of a fact, (2) but acts with a conscious purpose to avoid the truth, (3) unless he actually believes the fact not to exist.”). The problem with that argument is that it was expressly rejected by our supreme court in Bogle. Id. at 747. While the court in Bogle acknowledged that the inferred knowledge doctrine “as to circumstances from which knowledge may be inferred is far broader than the limited concept of willful blindness,” the factors that the court articulated in proving inferred knowledge are circumstantial evidence of actual knowledge. See id. at 748 (“It ‘may be proved by the conduct and statements of the defendant, by statements made to him or others, by evidence of reputation which it may be inferred had come to his attention, and by [other] circumstantial evidence from which an inference of knowledge might reasonably be drawn.”) (quoting State v. Boone, 311 S.E.2d 552, 559 (1984)).

    To flesh out your argument, you seem to be saying that by being served with notice of the DVPO hearing, a court should impute that the defendant knows that a DVPO was entered and then has a duty to determine what s/he was ordered to do or not to do. First, you are assuming that the plaintiff actually attends the DVPO hearing, which does not occur in a substantial number of cases. Second, that even if the plaintiff does appear, the court finds that an act of domestic violence occurred and thus enters the order. I don’t have the statistics, but I have seen plenty of times where these two things do not happen, so I don’t think that we can impute that foresight on someone when those things do not occur in a significant number of cases. And finally, you are charging the defendant with knowledge of which of the 33 possible boxes that the judge can check ordering the defendant to do or not do something.

    Any issue that you have with the process of getting knowledge of a DVPO to a defendant should be directed towards the law enforcement officers whose duty it is to serve the orders. What happens is a sheriff’s deputy deposits the DVPO in the mail and signs the service box on the order. It does not state where the order was sent to, and oftentimes the only address listed in the DVPO file is the one that the defendant is banned from in the order. Personal service should be required to establish the “knowingly” element in a criminal case where that element must be proved BARD. And criminal defendants should be entitled to actually cross-examine those deputies who sign the boxes to get information on where it was sent and how they obtained that address. See Sixth Amendment. But I’ll save that discussion for another day…

    Additionally, the title of your post insinuates that the defendant is getting a great benefit from not appearing in court. However, by not showing up at the DVPO hearing, the court can strip them of tremendous liberties, such as loss of parental rights, their home, their car, and their right to bear arms, and can order them to complete a batterers’ intervention program with the threat of contempt if they fail to complete it. In many ways, the consequences can be more severe than a criminal conviction.

    • Thanks for sharing your perspective. I do think it is important to note that there is no requirement in Chapter 50B that a protective order be served upon a defendant by a law enforcement officer.

        • I think a court easily could distinguish Bogle in this context by relying on the purposes of Chapter 50B as outlined in the post above. Bogle does not, after all, render unlawful the presumption that applies in DWLR prosecutions when DMV notifies a person by mail of a license revocation.

          • Mr. Dongre is right. Bogle doesn’t apply to DWLR’s because there is a statute that establishes the presumption of notice in those cases. If the legislature intended for the same or similar presumption to be established in 50B cases, why didn’t it include a statute similar to 20-48 in 50B?

            Prof. Denning, your argument seems to be that the legislative intent of 50B is supreme to black-letter law established in Bogle. Until Bogle is overturned or the legislature amends the 50B statutes, your argument is not supported by NC law. And I still have yet to hear any black-letter law to support your argument.

    • DVPO need to be outlawed and in cases of where spouse abuses wife and children sexually, emotionally, mentally and financially this seriously put county, districts and state in a position of accountability. It far wiser to issue accountability to the offender and implement measure of safety and recovery. Since county, districts and states have no plan or program to effectively deal. Yet when inquire “we see it all the time.” For seeing it all the time they should have best measures to Stop It! They hurt you worse.

  5. You’ve undercut your argument, Shea. For whereas G.S. 20-48 contains explicit language that reasonably can be interpreted to establish a standard of prima facie evidence that gives rise to a presumption of notice, G.S. 50B-3 contains no such language.

    “Shall be issued to each party” seems to me to be miles apart from G.S. 20-48’s much more precise language–which, moreover, is part of a subsection that is devoted entirely to “notice” to the driver. G.S. 50B-3, in contrast, addresses “issuance” not only to the defendant, but also to the police department or sherriff, and to any school covered by the order. The word “notice” is conspicuously absent.

    As to willful blindness, even when the U.S. Supreme Court recently drew from its criminal precedents to expand the scope of that doctrine (to the civil context) in Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. ___, 131 S. Ct. 2060, 179 L. Ed. 2d 1167 (2011), it relied on cases that dealt squarely with the issue of explicit statutory presumptions (both involving the drug offense context, incidentally). The text is key to our inquiry.

    Indeed, the Texas case you cite in support of your theory deals with a statute that is phrased in a manner that quite starkly distinguishes it from its North Carolina counterpart: “A person commits an offense if, in violation of an order issued under … Chapter 85, Family Code, … the person knowingly and intentionally commits family violence….” The crux of the dispute there was whether the intervening clause “in violation of an order issued under … Chapter 85, Family Code” rendered the knowledge element applicable only to the acts committed by the defendant, not to the fact that they happen to violate a protective order. The Harvey court answered that question in the affirmative not, as you suggest, in an exercise of legal instrumentalism. This was standard textualism.

    As another reader has said, it is to the legislature, not the courts, that we must turn to fix this unfortunate state of affairs.

  6. First of all a DVPO should never be enacted unless there is solid proof of domestic violence. The villian should never get away with enacting on an innocent person thus placing the children in a dangerous sex and drug situation where the enactor of DVPO is continuing behavior that has been discovered and reported numerous times. This is severe negligence on county and state levels. Attorney representation that fails to properly present documentation or works a deal with another attorney to play a money game or gains favor with a judge to rule in an abusers favor is classic form of corruption on local circuit and district level that state is fully accountable for. Domestic Violence is very deceptive due to fact that the root cause is sexual abuse. That is the part they fail to disclose as part of order. They also fail to inform. Fail to respond to reports, yet they know the most because they have access to more information. I am not a product of DV yet my spouse is and the abused is now abuser or victim that is now villian. Jackson County ruled in favor and spouse and I children are hurt. According to police a 13 year old is old enough to make own decisions. If that was truely the case then we all would be adults at 13 years old driving legally. 8 year old is old enough to stay by himself. Yes.the marriage is ruined and children harmed. All because I did not know not being a product of DV. Spouse had a jump you can not change the judge ruled in his favor in JC. Alienated me from my children with threats of superior court and felony charges for kidnapping. Going from one legitimate home to another to remove them upon discovery of spouse root problem on circuit court order. When state knew root problem before me. DVPO 50 B. It Is not legislative that is more bull shit have to pay new tax tomorrow over this bull shit sucked my retirement away 21, 000.00 and 20, 000.00 that my family helped me with. Any whore who engages a married man and continues affair so far and has children harming his family and steals from legitimate family continueously is a sexual and financial abuser as well.

  7. The above reference to offensive language. It is my posting. I am so upset over the entire situation as a whole. From treatment from spouses abuse to children and I and the embarassment he caused in small culturally religious town where the Smoky Mountain national park is our back yard. The failure to notify me. That does not exclude employees, county or state officials. The school failure when our children told school and friends who in turn told their parents but failed to let me know something that they were afraid to tell me or did not know exactly how to tell me. It is only through several very costly investigations and keeping on top of the children along with medical records and extra educational programs was I able to identify and figure it out. Being present in their lives makes a difference and doing so without substance abuse or sex abuse. Yes I may throw out some offensive words out of fustration. I may spank their hand or butt. After a certain age that transsitions into communication. The investigations clearly identified my spouse was actually suffering with deeper problem before I knew him. Which was a surprise since he likes and has blamed me for something I never did or didn’t even know about. He hid and covered it then and was in college while I worked nearly 60 hours every week. He is a product of DV and I am not the same product. He never shared his experience or the other side. Sharing is careing. He denies, lies, hides, cries, and treats us like we are in human. Classic case of victim to villian. It is extremely hard to do anything with lies. It is only with truth can someone heal, learn or grow. The only people who actually do not either suffer with a bad addiction or have major medical issue that blocks that process. In NC is extremely disappointing in this case. Even with the horrible counsel. I had all the documentation to support what was fact. The judge ruled in his favor placed an order she knew I could not meet on initial circuit court order. I tried three times to remove our children from one legitimate home to another where police hit me with felony kidnapping and wrote i could not be in Jackson County where NC held them in the state where they were not even legal residents at time AUG of 2013. Every attempt I have made he had me arrested by local police. Three bail outs trying to remove the children upon discovery. It has been horrendous. This clearly demostrates some sort of small town corruption because if it truly was not I would have been notified of side activities and behaviors. The spouse is most definitely a problem. I wish he was not but he in fact truly is. Through discovery and there is plenty more. He clearly had been hurt way before there was a me in the picture. The negligence on several sides has not helped him but enabled him to hurt himself and his immediate family. That I I would like to add that they knew the nature of the root problem he suffered. So I have stated my side and I am off to make several phone calls because I have not seen or heard from my children since december 2013. What has been done to us is wrong and upon resolution the future holds the second ammendment for us. I am against any and all types of sex and drug abuse and civil right violations and malpractice. The system is terrible and has no uniform law which enables these injustices that harm peoples lives and futures. The system makes it to easy for these types of happenings. I found in NC I am not the only wife that has faced similar situation or an ignoramous man who engage with other women who hurt his family or weigh him down with more kids he truly doesn’t want because he knows his own problem better than anyone on earth. All a man learns from these women is more disrespect and to many children by all different women actually creates pedophilia behavior in men. They are already weak and this makes it worse. The reality is pedophilies are made not born. This is where exclusive relationships and monogomany seriously carry much futher then serial or polynogomous relationships it is far better for health and wealth. The quality is far better and does not make people sick. I honestly feel my spouse is to far gone at age 40 he would be better and not worse and the children and I hurt tremendously because of this. Academics, personally, physically, mentally, emotionally financially and spiritually.

  8. I am one of those supposedly dv perpetrator. I am 52 and a woman. I am in a horrible divorce. My husband repeatly used the she is crazy card. During one of my husbands decisions to commit me for severe depression. He sent a ten day order. It was sent to me at the hospital. The hospital sent a letter stating I was in the hospital and could not make the court date. Two weeks later I was released. My husband picked me up and told me I was barred from our home. He did not mention the order. Since I am afraid of him I left my correspondence to email and texts. After a month he refused to support me in a hotel. I went by our home to speak to him. And he acted crazy. He sent emails to my family saying he put a warrant out on me. News to me. I have never threatened my husband in any way. So this week I will go to the wake cty detention center and turn myself in for violating an order I never saw. I will be in jail for asking for food and shelter from a man whom is well off and just wanted to get their wife out of the marital home and pay no alimony. I do not have a record of violence. No priors. But being a victim of dv in my first marriage. I had a difficult time getting an order against a very violent man. So how the heck did my husband get a permanent order while I was in the hospital suffering from his controlling abuse. I guess Cisco employees get away with murder and abuse. I am homeless while he lives in our home and according to friends is actively dating. I will fight this with every fiber of my being. As these legal provisions are being used to ban a person from their homes and get arrested for sending emails that beg for living expenses for their wife on the street. I am not angry but the misuse of these laws are wrong. I can not afford attorney as my husband was controlling and would not let me work. Kudos to those whom were allowed to go to law school. I was not. But I can stand up for myself professionally and make it clear. People have a right to fight against allegations. Using mental issues such as depression against a person is wrong. I know I will win and be a better person for standing up for myself. Depression or not. I do not deserve to be called a domestic violence perpetrator.

  9. I have not lived with my husband since July29,15 he has extended the first protection order out on me and I am waiting to be served papers from the last time he extended it. I cannot go get my things from our house unless a deputy is there. Do I have to appear in court when the court date states the court date is ..This is when the court will decide how long the protection order is too last. He is selling my belongings that I had from my 1st married that me and my deceased husband bought together I have receipts is this against the law. I live 100 + miles away and lost my job because of this

  10. what happens when the magistrate signs an ex parte order on an emergency. But the order never goes to a judge wants the courts opens. What happens if the defendant was never given a notice to appear in court. Is their a special form used to summon a defendant to court for the final DVPO. The defendant appears in court by word of mouth and argues that he did not have time to prepare a proper defense and looses

  11. Well, I put someone up in my home to help them. No lease. No billings paid over term by them. They were recovering from addiction. I was assisting them in getting clean and sober. They threw a fit and moved out. I’d been single and not involved with anyone in over a decade. The individual was helpful at the house and in general. We became intimate. When they left – they didn’t call for 2.5 days – I sent email messages. The individual did not return to my residence for over 5 days – then wanted to and I said no. Now I have a 50B for email and the individual is claiming my home is “his” and my business is “his place of employment.” He claimed a firearm that did not exist. Had already put in a change of address.

    Is there a real chance this person can get my home and business?


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