Greensboro Attorney Chad Garrett answers How Can I Expunge My North Carolina Criminal Record?
In this day of internet record checks and the stigma of criminal charges, expunctions are an important part of a criminal law practice. The evaluation of potential future expunction eligibility is an analysis that must occur from the very start of the process. Numerous expunction statutes allow for different opportunities to avoid the collateral consequences of criminal charges, and in some cases, even criminal convictions.
An expunction is a statutory procedure that allows the record of criminal process, charge and / or conviction to be erased from public and most private records. Expunction process and eligibility are specific and limited. Typically, a petitioner files for an expunction in the appropriate court, and if they satisfy the statutory requirements, a court is required to grant the expunction. Expunction orders require the case records to be erased. This requirement applies to North Carolina courts, state and local law enforcement agencies, government agencies listed in the petition, and private businesses that provide criminal background checks, if they receive notice (the AOC sends notice to all businesses they provide information to; there is no requirement that companies obtaining their information from other sources be notified).
For the most part, expunctions can be considered “one in a lifetime.” However, there is some advantage to utilizing the different expunction statutes. Most stipulate no prior expunctions, but read the statute closely. This requirement may be specific to that particular statute, allowing you to utilize a different statute to expunge multiple offenses.
All expunctions require a $175 fee, payable to the Clerk of Superior Court, prior to the petition being heard. There are four notable exceptions: expunctions under 15A-145.6 (prostitution offenses); 15A-146, when the case resulted in an acquittal or a dismissal (voluntary dismissal, or “VD”) not based on a deferred prosecution (deferred dismissal, or “DD”); 15A-147 (victims of identity theft); and 15A-149 (pardon of innocence).
A petitioner, or his or her attorney for the petitioner, should always obtain a certified copy of the expunction order and keep it for their records. Upon the entry of the expunction order, the clerk will destroy all records of the offense, including the case file and petition and order of expunction.
Fillable AOC forms, and in most cases, helpful, simplified instructions are provided by the AOC at http://www.nccourts.org/Forms/FormSearch.asp. Form numbers are provided below for each relevant statute.
There are three specific classifications of expunctions: age based expunctions, dismissals and related expunctions, and drug-related offense expunctions.
Age based expunctions are complex. The first and most common age based expunction, under N.C.G.S. 15A-145(a) and (b), allows 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.
Expunction 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.
The next age-based expunction is N.C.G.S. 15A-145.2, which allows for the expunction 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 expunction 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 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 expunction 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 expunction of a conviction only applies to misdemeanor convictions.
Non-violent felony offenders under the age of 18 at the time of the offense are eligible for an expunction 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.
A non-violent felony under this section is any felony except a Class A-G felony, a felony including assault as an essential element, an offense requiring registration pursuant to Article 27A of Chapter 14 (Sex Offender and Public Protection Registration Programs), any felony under specific sex-related or stalking statutes, any Chapter 90 offense involving heroin, methamphetamines, or possession with intent to sell or deliver or sell or deliver of cocaine, unless a PJC has been entered for any of those Chapter 90 offenses that were G, H, or I level felonies, felony offenses N.C.G.S. 14-12.12(b), 14-12.13, 14.12.14, any offense punished under 14-3(c), any felony under 14-401.16, or any offense involving a commercial motor vehicle.
Age limitations are not a requirement of N.C.G.S. 15A-145.5. This statute allows expunctions of certain non-violent felonies and misdemeanors, with “non-violent” defined the same as in 15A-145.4. This petition may be filed, assuming no other misdemeanor or felony convictions other than traffic offenses, no sooner than 15 years after the end of the sentence period or conviction date, whichever is later. The petition must contain an affidavit from the petitioner regarding good moral behavior and lack of other non-traffic convictions, 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 with good cause may be granted another 30 days, and must attempt to notify any victims in the matters of the request and the hearing date. The court may seek further information from other individuals as it deems necessary. The petitioner must not have had a previous expunction under this section, or N.C.G.S. 15A-145, 145.1, 145.2, 145.3, or 145.4.
In an effort to combat human trafficking and protect the victims thereof, 15A-145.6 allows for the expunctions for certain defendants convicted of prostitution. This statute is designed to compliment the conditional discharge pursuant to N.C.G.S. 14-204(b). Requirements include an affidavit by the petitioner relating their good moral behavior and lack of prior violent convictions or any convictions since the date of the expungeable conviction; two affidavits from non-relatives regarding the good character and reputation of the individual, a statement stating that the expunction request is a motion in the original case, and a second affidavit from the petitioner verifying the lack of restitution owed or civil judgments outstanding.
The most common expunction statute used by criminal practitioners is N.C.G.S. 15A-146, expunction of records when charges are dismissed or there are findings of not guilty. Assuming there has not been a previous expunction under this section, or under N.C.G.S. 15A-145, 145.1, 145.2, 145.3, 145.4, 145.5, or 145.6, nor a conviction of any felony, then the court shall enter an expunction under this statute. Multiple offenses occurring within a 12 month time period, or multiple applicable dispositions during the same term of court (the same week for Superior Court, the same day for District Court), are all eligible. Civil revocations may also be expunged, and an application for the expunction of an individual’s DNA record may also be made under this statute.
Identity theft expunctions are covered under N.C.G.S. 15A-147. When charges are dismissed or there are findings of not guilty as a result of identity theft, or a conviction is set aside for the same reasoning, a petition or motion may be filed in the court where the charge was last pending. After notice to the district attorney, a hearing is made, and upon findings that the person’s identity was unlawfully appropriated by another, the court shall order the expunction. Furthermore, the DMV must expunge and reverse any administrative actions taken against the individual, including revocations and driver’s license points. Insurance companies must do the same, and refund any additional premiums the individual was subjected to as a result of the expunged offense.
DNA records shall be expunged under N.C.G.S. 15A-148, following the issuance of a final order by an appellate court (reversing and dismissing a conviction), or upon a pardon of innocence.
An application for expunction after a pardon of innocence falls under N.C.G.S. 15A-149. The clerk of court, upon receipt of the motion or petition, verifies that the pardon of innocence has been filed with the court (N.C.G.S. 147-25), and the court shall order the expunction.
Notifications of expunctions, pursuant to N.C.G.S. 15A-150, shall be sent to the AOC, the sheriff, chief of police, or other arresting agency, the Division of Motor Vehicles, Division of Adult Correction and any other State or local agency identified by the petition as bearing a record of the offense. The FBI and SBI are notified, as well as private entities that have a licensing agreement with the State regarding criminal record data. A confidential database containing the names of those receiving expunctions is maintained, and may only be disclosed for certain purposes, including notice of previous expunctions, to an individual to confirm their own expunction, by subpoena in a civil action under N.C.G.S. 15A-152, and for expunctions under 15A-145.4 or 15A-145.5, to the North Carolina Criminal Justice Education and Training Standards Commission, and the equivalent Sheriffs’ Commission, for certification purposes only.
N.C.G.S. 15A-152 allows the pursuit of civil liability, should an entity fail to follow the required expunction of records.
If you have questions about an expunction, contact Greensboro’s best criminal defense attorneys at Garrett, Walker, Aycoth and Olson. We return every call, every day, and are here to help!