1. What is an expungement?
"Expungement of records and records of conviction" means the sealing and retention of all records of a conviction and/or probation and the removal from active files of all records and information relating to conviction and/or probation. G.S. § 12-1.3-1.
2. Do the records just disappear?
No. Any fingerprint, photograph, physical measurements, or other record of identification, taken by or under the direction of the attorney general, the superintendent of state police, the member or members of the police department of any city or town or any other officer authorized by this chapter to take them, of a person under arrest, prior to the final conviction of the person for the offense then charged, shall be destroyed by all offices or departments having the custody or possession within sixty (60) days after there has been an acquittal, dismissal, no true bill, no information, or the person has been otherwise exonerated. The clerk of courts where the exoneration took place will seal all records of the person in the case including all records of the division of criminal identification established by § 12-1-4; provided, that the person shall not have been previously convicted of any felony offense G.S. § 12-1-12.
Persons not exonerated of charges who are granted an order to expunge will have those records subject to the order sealed.
3. What records may be expunged?
All records and records of conviction may be expunged under G.S. § 12-1.3-2. “Records" and "records of conviction and/or probation" include all court records, all records in the possession of any state or local police department, the bureau of criminal identification and the probation department, including, but not limited to, any fingerprints, photographs, physical measurements, or other records of identification. The terms "records" and "records of conviction, and/or probation" do not include the records and files of the department of attorney general which are not kept by the bureau of criminal identification in the ordinary course of the bureau's business G.S. § 12-1.3-1.
4. Who is eligible for an order to expunge?
A person arrested for a criminal offense after there has been an acquittal,
dismissal, no true bill, no information, or the person has been otherwise
exonerated from the offense with which he or she is charged, as long as
the person has no previous felony convictions. Also, a person detained
by police, but not arrested or charged with an offense, or to persons against
whom charges have been filed by the court, and the period of such filing
has expired. Any person who has been charged with a complaint for a crime
involving domestic violence where the complaint was filed upon a plea of
not guilty, guilty or nolo contendere , must wait three years from the
date of filing to seek expungement of the related records. G.S. §
12-1-12.
For expungement of records of conviction, the person must be a first
offender not convicted of a crime of violence. "Crime of violence" includes
murder, manslaughter, first degree arson, kidnapping with intent to extort,
robbery, larceny from the person, first degree sexual assault, second degree
sexual assault, first and second degree child molestation, assault with
intent to murder, assault with intent to rob, assault with intent to commit
first degree sexual assault, burglary, and entering a dwelling house with
intent to commit murder, robbery, sexual assault, or larceny.
A person is eligible if in the five (5) years preceding the filing
of the motion, if the conviction was for a misdemeanor, or in the ten (10)
years preceding the filing of the motion if the conviction was for a felony,
the petitioner has not been convicted nor arrested for any felony or misdemeanor,
there are no criminal proceedings pending against the person, and he or
she has exhibited good moral character.
The court must also find that petitioner's rehabilitation has been
attained to the court's satisfaction and the expungement of the records
of his or her conviction is consistent with the public interest. G.S. §
12-1.3-3.
5. How do I get records expunged?
Records of exonerated persons under G.S. § 12-1-12 are to be expunged
automatically as a matter of law. No petition is required to be made by
the subject person of the records.
For persons seeking to expunge records of conviction, the person must
file a motion for expungement of the records of his or her conviction and
shall give notice of the hearing date set by the court to the department
of the attorney general and the police department which originally brought
the charge against the person at least ten (10) days prior to that date.
The court, after the hearing at which all relevant testimony and information
shall be considered, may in its discretion order the expungement of the
records of conviction of the person filing the motion if it finds the above
criteria is met.
If the court grants the motion, it shall order all records and records
of conviction relating to the conviction expunged and all index and other
references to it deleted. A copy of the order of the court shall be sent
to any law enforcement agency and other agency known by either the petitioner,
the department of the attorney general, or the court to have possession
of the records. Compliance with the order shall be according to the terms
specified by the court. G.S. § 12.1.3-3.
