1. What is an "Expungement"?
Expungement is the Process by which a record of criminal conviction and/or arrest are removed by order of the court. In North Carolina, it is applicable under limited circumstances as defined by the statutes.
2. Who is eligible for Expungement in North Carolina?
1) A first offender who is convicted of a misdemeanor (other than a traffic violation) prior to his 18th birthday.
2) A person charged with a felony, misdemeanor or an infraction under G.S. 18B-302(i) (purchase or possession of a malt beverage or unfortified wine by a 19 or 20-year old) can have the arrest and court records expunged, under certain circumstances, if the charge is dismissed or the person is found not guilty. Age of the defendant is not an issue (except for the infraction under G.S. 18B), either at the time of arrest or disposition of the case.
3) A person named in a charge for an infraction or a crime, either a misdemeanor or a felony, as a result of another person using the identifying information of the named person to commit an infraction or crime and the charge against the named person is dismissed, a finding of not guilty is entered, or the conviction is set aside. A motion to expunge all official records any entries relating to the person's apprehension, charge, or trial must be made to the court and if the court finds that the person’s identity was used without permission, the person was found not guilty or the charges were dismiss, an order to expunge must be granted. G.S § 15A-147.
4) A person receiving a final order by an appellate court reversing and dismissing a conviction of an offense for which a DNA analysis was done or upon receipt of a pardon of innocence with respect to any such offense, the court shall issue an order of expungement of the DNA record and samples. G.S § 15A-148.
5) A juvenile who is fingerprinted and photographed in connection with a court proceeding. The custodian of records shall destroy all fingerprints and photographs at the earlier of the following: (1) The juvenile court counselor or prosecutor does not file a petition against the juvenile within one year of fingerprinting and photographing the juvenile (2) The court does not find probable cause pursuant to G.S. 7B-2202; or (3) The juvenile is not adjudicated delinquent of any offense that would be a felony or a misdemeanor if committed by an adult. § 7B-2102.
6) Any person who has attained the age of 18 years may file a petition in the court where the person was adjudicated delinquent or undisciplined for expunction of all records of that adjudication provided:(1) The offense for which the person was adjudicated would have been a crime other than a Class A, B1, B2, C, D, or E felony if committed by an adult. (2) At least 18 months have elapsed since the person was released from juvenile court jurisdiction, and the person has not subsequently been adjudicated delinquent or convicted as an adult of any felony or misdemeanor other than a traffic violation. The petition must contain, (1) An affidavit by the petitioner that the petitioner has been of good behavior since the adjudication and had no further or has no pending delinquencies or convictions, other than traffic violations. 2. Verified affidavits of two persons not related to the petitioner attesting to his good character and reputation in the community. 3. A statement that the petition is a motion in the case wherein the petitioner was adjudicated undisciplined or delinquent. § 7B-3200.
7) Any person who was alleged to be delinquent as a juvenile and has attained the age of 16 years, or was alleged to be undisciplined as a juvenile and has attained the age of 18 years, may file a petition in the court in which the person was alleged to be delinquent or undisciplined, for expunction of all juvenile records of the juvenile having been alleged to be delinquent or undisciplined if the court dismissed the juvenile petition without an adjudication that the juvenile was delinquent or undisciplined. § 7B-3200.
8) Upon the dismissal of a first-time offender, and discharge of the proceedings against him or her, if not over 21 years of age at the time of a minor drug possession offense, may apply to the court for an order to expunge from all official records (other than the confidential file to be retained by the Administrative Office of the Courts all recordation relating to his arrest, indictment or information, trial, finding of guilty, and dismissal and discharge. Persons under 21 at time of a minor drug offense whose charges dismissed before trial, nolled are also eligible. Innocent persons charged with a misdemeanor drug offense are eligible for automatic expungement if under 21 at time of offense. First-offenders found or pleading guilty to minor drug possession charge may apply after 1 year. § 90-96.
3. What are the procedures under Section 15A-145?
First, G.S. 15A-145 authorizes the expunction (the erasure or striking
out) of the criminal history record of a first offender who is convicted
of a misdemeanor (other than a traffic violation) prior to his 18th birthday.
For example, if a person seventeen years of age is convicted of (or pleads
guilty to) G.S. 14-269, carrying concealed weapons, and this is his first
offense, he may apply to have the conviction expunged from his record.
In order to do this, he must wait for two years from the date of
his conviction, or any period of probation, and petition the court. The
district attorney must be served and may file an objection. The court must
hold a hearing and determine from the previously submitted documents if
the record is to be expunged. Those documents are:
1) An affidavit by the petitioner that he has been of good behavior for the two-year period since his conviction of the misdemeanor, and he has not been convicted of either a felony or misdemeanor other than a traffic violation.
2) Verified affidavits of two persons not related to the petitioner attesting to his good character and reputation in the community.
3) A statement that the petition is a motion in the case wherein the petitioner was convicted.
4) Affidavits of the clerk of superior court, chief of police (where appropriate), and sheriff of the county in which the petitioner was convicted, showing that the petitioner has not been convicted of a felony or misdemeanor during the two-year period.
If the court determines that the record should be expunged, then an order shall issue that the court files and law enforcement agency files be expunged of the conviction. The petitioner may thereafter answer inquires about his criminal conviction record by saying that, other than any traffic violations he may have, he has not been convicted of a crime.
4. What records are expunged under Section 15A-145?
There are thee basic types of juvenile records:
(1) law-enforcement records;
(2) legal records, or juvenile file, kept at the courthouse by the clerk of Superior Court; and
(3) social records, kept in the files of the chief court counselor (and sometimes training schools, Department of Social Services, or other agencies).
When a person files a petition for expunction of records, even if the expunction is granted, only the law-enforcement and legal records will be destroyed. Social records can not be expunged. (Social records are destroyed according to a schedule set by the agency that keeps the records.)A person might seek to have juvenile records expunged if, when the person was a juvenile, a petition was filed alleging the person to be delinquent or undisciplined and
1) the court dismissed the petition without finding that the juvenile was delinquent or undisciplined, or
2) the court found the person to be an undisciplined juvenile, or
3) the court found the person to be a delinquent juvenile for committing an offense that was not a Class A, B1, B2, C, D, or E felony.
Records that a person was adjudicated delinquent for one of the most serious offenses - any offense that would be a Class A, B1, B2, C, D, or E felony if committed by an adult - may not be expunged. A petition seeking expungement must be filed in the same court where the original juvenile petition was filed. The procedures and requirements for expungement are somewhat different for the three categories listed above.
After the petition is filed, a judge decides whether to grant expunction of the records. This process may or may not involve a hearing, depending on whether the juvenile was adjudicated and whether or not attorneys file objections. If the judge decides expunction is warranted, he/she will order it. The clerk of the Superior Court must then notify all law enforcement agencies to destroy all records of the juvenile's adjudication. The clerk must forward a certified copy of the order to the sheriff, chief of police or other law enforcement agency and then notify the juvenile that his/her records have been destroyed. When a person's juvenile record is expunged, neither that person nor that person's parents can be found guilty of perjury or of giving a false statement if, in response to any inquiry, they fail to report or acknowledge the record that was expunged. There is one exception. If the person testifies in a case in juvenile court, the person may be required to testify about whether he or she was ever adjudicated delinquent.
5. What are the procedures under Section 15A-146?
North Carolina General Statutes Section 15A-146 provides for the expunction of records when charges are dismissed or there are findings of not guilty.
Under G.S. 15A-146, a person’s record of the charge of a felony, misdemeanor or an infraction under G.S. 18B-302(i) (purchase or possession of a malt beverage or unfortified wine by a 19 or 20-year old) can be expunged, under certain circumstances, if the charge is dismissed or the person is found not guilty. Age of the defendant is not an issue (except for the infraction under G.S. 18B), either at the time of arrest or disposition of the case.
In order to meet the requirements of G.S. 15A-146, the person must be charged with a crime, felony, misdemeanor or the specific statute above, and that charge is either dismissed, the defendant is found not guilty, or in the case of the infraction, not responsible. He is then entitled to an expunction of any record of his apprehension or trial if he has not previously received an expunction and has never previously been convicted of any felony. The defendant must apply to a court and a hearing must be held upon that application. If granted, the defendant does not commit perjury if he fails to recite or acknowledge the expungement, or charge leading to it. As with 15A-145, law enforcement agencies and the clerk of court will be ordered to expunge their records of the arrest and disposition of the case.
