Expungements Based on Age

Age based expungements are vital to the protection of young offenders. Although complex in execution, the importance of these statutes cannot be overlooked. No one should be continually punished for a youthful mistake, and these expungements allow us to erase the past and move forward into a positive future.

Under 18
If you were under 18 when you received a criminal conviction, then you may be eligible for an age based expungement under N.C.G.S. 15A-145(a) and (b). These laws allow misdemeanor convictions to be expunged (including multiple convictions if they arose from the same transaction, occurrence, or were consolidated for trial or judgment), if the offense occurred prior to the defendant’s 18th birthday (or 21st birthday for certain alcohol possession offenses).

Requirements include: no prior felony or misdemeanor convictions (other than traffic violations); the offense to be expunged is a misdemeanor other than a traffic violation, committed prior to the age of 18; or, the person is convicted of a misdemeanor possession of alcohol (N.C.G.S. 18B-302(b)(1)), with an offense date prior to the age of 21; and the petition is filed no earlier than 2 years after the date of conviction, or the completion of any period of probation, whichever occurs later.

The petition itself must contain an affidavit by the petitioner that he has been of good behavior for 2 years (since the conviction date), and not been convicted of any other felony or misdemeanor (except traffic violations); two verified affidavits (from non-relatives) regarding the good character and reputation of the petitioner in their community; a statement regarding the fact that the petition is a motion in the cause in the case wherein the petitioner was convicted; an application (AOC form) requesting and authorizing State and national criminal record checks; and an affidavit from the applicant stating that no restitution or civil judgment orders are outstanding.

The petition must be served on the district attorney’s office that prosecuted the case. They have 10 days to file an objection, and must be notified of the date of the hearing. The judge reviewing the petition may request testimony or further investigation from a probation officer for verification of the defendant’s past conduct.

Gang Offenses if Under 18
Expungement of certain gang offenses for first offenders under 18, N.C.G.S. 15A-145.1, allows convictions of a Class H felony under Article 13A of Chapter 14 (The North Carolina Street Gang Suppression Act, N.C.G.S. 14-50.15-30), or an enhanced offense under N.C.G.S. 14-50.22 (Enhanced offense for criminal gang activity), or a dismissal under 14-50.29 (Conditional discharge for first offenders under the age of 18). The offense must be committed prior to the person attaining age 18, and the petition may be filed two years after the later of the conviction date or probation’s end, in the court where the conviction occurred. The petition itself has the same requirements as those in 14-145.

Drug Offenses if Under 21
The next age-based expungement is N.C.G.S. 15A-145.2, which allows for the expungement of certain drug offenses for first offenders under 21 on the offense date. This involves discharged or dismissed cases under N.C.G.S. 90-96(a) or (a1). For felony offenses, requirements include an affidavit from the petitioner regarding his or her good behavior, two affidavits from non-relatives regarding the petitioners good character and reputation in the community, and the proper AOC form. There is no tolled time period required, however, the court may call a probation officer for any further inquiries into the petitioners behavior.

Under this same statute a misdemeanor under Article 5 of Chapter 90, controlled substances under Schedules I-VI, or a felony under N.C.G.S. 90-95(a)(3), may be expunged if the case is dismissed or no-conviction is entered. No affidavits regarding good behavior or character are required.

A drug conviction by an individual under 21, assuming no prior felony conviction, may be expunged, after 12 months post-conviction date, by an order cancelling the judgment of conviction, followed by an order expunging the individual’s records. This applies to any Chapter 90 offenses, drug paraphernalia offenses under N.C.G.S 90-113.22, or a felony conviction under N.C.G.S. 90-95(a)(3). Conditions for the expungement include no disqualifying previous convictions under this section, under the age of 21 on the offense date, good behavior since the conviction date (and at least 12 months have passed), the successful completion of a drug education program (approved by the Department of Health and Human Services), and no convictions other than a traffic violation at any time prior to or since the conviction at issue. The drug education class may be waived if the judge makes specific findings of facts that no such school is within a reasonable distance of the defendant’s residence, or other specific extenuating circumstances making it likely the petitioner would not benefit from the classes.

N.C.G.S. 15-145.3, the expungement of records for first offenders not over 21 years of age at the time of the offense of certain toxic vapor offenses, applicable to N.C.G.S. 90-113.14(a) or (a1) offenses, mirrors 15-145.2 in all requirements, with the exceptions that the expungement of a conviction only applies to misdemeanor convictions.

Non-Violent Felonies if Under 18
Non-violent felony offenders under the age of 18 at the time of the offense are eligible for an expungement under N.C.G.S. 15A-145.4. Multiple non-violent felonies with the same conviction date may be expunged provided none were alleged to occur after the petitioner had been served with the criminal process for one of the applicable offenses. The petitioner must not have been convicted of any previous felony or misdemeanor offenses except traffic offenses, and the filing cannot be made earlier than 4 years after the date of conviction, active or probationary sentence, or post-release supervision sentence has been served, whichever is later. One hundred hours of community service, preferably related to the conviction, must be served prior to filing.

The petition must contain an affidavit from the petitioner regarding good moral behavior and lack of other non-traffic convictions, as well as separate affidavits affirming that no restitution or civil judgments remain outstanding, that at least 100 hours of community service was performed since the conviction (with detailed descriptions), and an affidavit that the petitioner possesses a high school diploma or equivalent. Furthermore, the court must be presented with verified affidavits from two non-related individuals professing the petitioner’s good character and reputation in the community, a statement that the petition is a motion in the cause in the case where the petitioner was convicted, and the applicable AOC form.

The District Attorney’s Office must be served and has 30 days to object and notify any victims in the matters of the request and the hearing date. The court may call upon a probation officer, review the petitioners juvenile record, the amount of restitution paid, and review any other information that the court deems relevant. A probation officer, or, if no such officer is provided, the court, must notify an eligible defendant of these provisions.

Age-based expungements are the most legally difficult expungement procedure in North Carolina, but may also be the most valuable. If you qualify for an expungement under any of the above conditions, then you may be able to clear your record, and begin a future without the burden of your past. Do not let your success be defined by a youthful indiscretion; contact the lawyers at Garrett, Walker, Aycoth and Olson and allow us to determine if you qualify for relief. We look forward to helping you today, in order to secure your tomorrow.


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