State v. Byrd and Violations of DVPOs

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Last month, the North Carolina Supreme Court decided State v. Byrd, a case with significant implications for cases involving the violation of domestic violence protective orders (DVPOs).

Here are the facts. The defendant had a history of abusing his wife, and she eventually sought a divorce. As part of her initial divorce filing, her attorney sought a TRO under N.C. R. Civ. P. 65, barring the defendant from bothering her. The TRO was granted, but the defendant went to his wife’s workplace and shot her, severely injuring her. The state charged him with, inter alia, AWDWIKISI and with doing so in violation of a DVPO.

The point of the latter allegation is that, under G.S. 50B-4.1(d), committing a felony that violates a DVPO results in a sentence that is one class higher than the felony would ordinarily entail. The jury convicted the defendant of AWDWIKISI and found that he violated a DVPO; the DVPO finding meant that he was sentenced as a Class B2 felon, rather than as a Class C felon. He appealed, arguing that a TRO entered under N.C. R. Civ. P. 65 is not a “protective order entered pursuant to [Chapter 50B]” as required for the enhancement under G.S. 50B-4.1(d) to apply.

The state supreme court agreed, for two reasons. First, it noted that G.S. 50B-1(c) defines a “protective order” as an order entered pursuant to Chapter 50B — but the TRO in this case was entered under N.C. R. Civ. P. 65, not under Chapter 50B. Second, it observed that G.S. 50B-1(c) defines a “protective order” as one entered “upon hearing by the court or consent of the parties.” The majority determined that an ex parte proceeding, such as the one that resulted in the TRO is not a “hearing.” Thus, even a TRO entered under G.S. 50B-2(c) wouldn’t support the enhancement, because such TROs are, like the TRO at issue in Byrd, issued ex parte.

Byrd is a big deal because it clearly applies to all the DVPO-related offenses set forth in G.S. 50B-4.1, including the frequently-charged offense of knowingly violating a DVPO. None of those offenses may now be charged based on ex parte TROs, even if the defendant knows full well about the TRO — for example, because the victim told him about it. I’ve heard rumblings that the General Assembly may change the definition of “protective order” in G.S. 50B-1(c) to effectively overturn Byrd, but I couldn’t find any proposed legilsation on the General Assembly’s website that would have that effect, and it’s getting pretty late in the game for anything to happen this session.

3 thoughts on “State v. Byrd and Violations of DVPOs”

  1. A prosecutor might also be able to argue that the second reason given by the Supreme Court was dicta, given that the first reason was sufficient to support the ruling. In any event, the reasoning of the Supreme Court with respect to ex parte orders flies in the face of the clear language of the statute in question, which describes the process by which an ex parte order is issued by the district court as “an ex parte hearing…”.

    But a legislative fix wold probably be the better option.


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