Under North Carolina law, people who have only one non-violent conviction on their record may be eligible for expungement or having the records of their earlier trials sealed. This does not include traffic violations. This law, under N.C.G.S. § 15A-145.5, allows for the expunction of certain non-violent misdemeanor and felony convictions with no limitation on age.
- The crime, however, cannot be a Class A through G felony or a Class A1 misdemeanor.
- The offense also cannot be violent, sexually based – nor involve methamphetamines, heroin, or possession with intent to sell or deliver cocaine.
- The person must wait 15 years from the date of the conviction before filing a petition to have the record expunged.
When it comes to having records expunged, it’s important to have an expungement lawyer who is knowledgeable about the details to help you through what can be a challenging process.
Process of sealing records in North Carolina
Even if a person meets the criteria to have a record expunged, it is not done automatically. A person must file a petition, in the court where the person was convicted, for expunction of a nonviolent misdemeanor or nonviolent felony.
The petition for expungement must include:
- An affidavit by the petitioner that the he or she has been of good moral character since the date of conviction and has not been convicted of any other crime, excluding traffic violations
- Verified affidavits of two persons who are not related to the petitioner, or to each other by blood or marriage, testifying to the petitioner’s good moral character
- A statement that the petition is a motion in the cause in the case wherein the petitioner was convicted
- An affidavit by the petitioner that no restitution orders or civil judgments, representing amounts ordered for restitution entered against the petitioner, are outstanding
The district attorney will have 30 days from when to petition is filed to object. The court may grant the district attorney another 30 days to object to the position if necessary. The presiding judge can call upon a probation officer for any additional investigation or verification of the petitioner’s conduct since the conviction. The court also can review any other information the court deems relevant.
If the expungement is granted, all law enforcement agencies, including local agencies with records of the offense, will seal the records. Employers that perform background checks on prospective employees would not have knowledge of the conviction or even the charge if it had been expunged, according to N.C.G.S. § 15A-145.5.
Expungement of Juvenile Offenses
Offenders under age 18 can have their criminal records sealed, but they also must meet certain criteria.
For example, N.C. Gen. Stat. § 15A-145.4 allows a person the expungement of a misdemeanor conviction if the offense was committed prior to the person’s 18th birthday. The person must wait until two years have elapsed, following the later of either the conviction or the completion of probation before petitioning, to have it expunged. The juvenile cannot have a subsequent misdemeanor or felony conviction.
- Nonviolent felony convictions for juveniles under age 18 could also be expunged if the person had no prior or subsequent convictions, excluding traffic violations. The petitioner has to wait at least four years since the date of the conviction before he or she can apply to have it expunged. The juvenile also must have performed 100 hours of community service since conviction, and must have earned a high school diploma or GED.
- Offenders under age 22 could file to have certain drug convictions expunged, including some misdemeanor and felony possession charges. The accused must wait at least 12 months after the date of the conviction before filing a petition. He or she also must not have any other convictions.
The impact of recent expungement legislation in North Carolina
In 2017, the General Assembly made several changes to North Carolina’s expunction laws. Expungement or expunction is when a first time offender of a prior criminal conviction seeks to have the records of their earlier trials to be sealed. Once they are sealed, the records will be unavailable through the state or Federal repositories.
This act expands availability of expunction in two ways:
- Reduction of the waiting period to expunge any older nonviolent misdemeanor or felony conviction, and;
- The ability to expunge a dismissal regardless of whether the person has received prior expunctions.
Additionally, prosecutors now have the ability to gain access to prior expunction records and use them for defendants with subsequent offenses. Below, there are more details regarding the expansion of the expunction bar and the abilities that prosecutors have gaining information from the Administrative Office of the Courts (AOC).
Reduced Waiting Period for Expunctions
The General Assembly passed bill 15A-145.5 that has permitted shorter waiting periods to apply to expunging any older nonviolent felonies and misdemeanors.
- Any nonviolent felony now has a waiting period of 10 years (rather than 15).
- Nonviolent misdemeanors now have a waiting period of 5 years (rather than 15) for expunction.
The waiting period for the expunction process is dependent on your case. It can begin either at the date of the conviction, after any active sentence, period of probation, or when the post release supervision has been served. Depending on whichever is served latest, a petition can be filed after the 10- or 5-year waiting period for a nonviolent felony or misdemeanor.
Eliminated Limit on Expunction of Dismissals
The General Assembly has now expanded the limit for expunctions for dismissals in court. G.S. 15A-146 states that a person can now expunge dismissals by the court or prosecutors if he or she has not previously obtained an expunction under certain statutes.
Amended subsection (a1) of the act states that a person can now expunge multiple dismissals. In addition, there is no requirement for the offenses to have occurred within the same 12-month period. Lastly, a person can receive an expunction for a dismissal even if they have past convictions of misdemeanors in the same case.
Additionally, amended subsection (a2) now allows expunctions of findings for not guilty verdicts. A not guilty verdict is not subject to the new reporting requirements for prosecutors in G.S. 15A-145.5.
New Prosecutors’ Ability to Access Prior Expunctions
The recent 2017 General Assembly act now allows prosecutors access to prior expunctions through the AOC:
- A prosecutor has the ability to use most expunctions to determine a person’s prior record level for subsequent offense.
- They can only access this if the record was expunged on or after July 1, 2018.
G.S. 15A-145.5 states that the information from the AOC is considered prima facie evidence. The term prima facie evidence means “on its face,” referring to past convictions and lawsuits where the evidence before the trial is sufficient for the prosecution to use. The expunctions provided by the AOC can be considered prima facie, as they are used to calculate an alleged offender’s prior record level if he or she has subsequent offenses.
At Greene Wilson Crow & Smith, Our Criminal Defense Attorneys Are Dedicated to the Protection of Our Clients’ Constitutional Freedoms and Respect for Their Individual Circumstances.
We’re here to guide you through the complicated, frightening, and often frustrating process known as the criminal justice system. We provide criminal law services at all levels in eastern North Carolina, including misdemeanor and felony trial defense, and post-conviction appellate work in both state and federal court. Contact us for a consultation.