How Can I Get a Juvenile Felony Offense Expunged in North Carolina?
Full Question:
Answer:
It is possible to file a petition for expungement without an attorney. You may consult our attorney directory at the following link. Any criminal attorney should be able to handle the matter:
Please see the following NC statutes to determine applicability:
" Section 15A-145.1. Expunction of records for first offenders under
the age of 18 at the time of conviction of certain gang offenses.
(a) Whenever any person who has not previously been convicted of any
felony or misdemeanor other than a traffic violation under the laws of
the United States or the laws of this State or any other state pleads
guilty to or is guilty of (i) a Class H felony under Article 13A of
Chapter 14 of the General Statutes or (ii) an enhanced offense under
G.S. 14-50.22, or has been discharged and had the proceedings against the
person dismissed pursuant to G.S. 14-50.29, and the offense was committed
before the person attained the age of 18 years, the person may file a
petition in the court where the person was convicted for expunction of the
offense from the person's criminal record. Except as provided in G.S.
14-50.29 upon discharge and dismissal, the petition cannot be filed
earlier than (i) two years after the date of the conviction or (ii) the
completion of any period of probation, whichever occurs later. The
petition shall contain, but not be limited to, the following:
(1) An affidavit by the petitioner that the petitioner has been of
good behavior (i) during the period of probation since the decision to
defer further proceedings on the offense in question pursuant to G.S.
14-50.29 or (ii) during the two-year period since the date of conviction
of the offense in question, whichever applies, and has not been convicted
of any felony or misdemeanor other than a traffic violation under the
laws of the United States or the laws of this State or any other state.
(2) Verified affidavits of two persons who are not related to the
petitioner or to each other by blood or marriage, that they know the
character and reputation of the petitioner in the community in which the
petitioner lives, and that the petitioner's character and reputation are
good.
(3) If the petition is filed subsequent to conviction of the offense
in question, a statement that the petition is a motion in the cause 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 and, if different, the county of which the petitioner is a
resident, showing that the petitioner has not been convicted of a felony
or misdemeanor other than a traffic violation under the laws of this
State (i) during the period of probation since the decision to defer
further proceedings on the offense in question pursuant to G.S. 14-50.29
or (ii) at any time prior to the conviction for the offense in question
or during the two-year period following that conviction, whichever
applies.
(5) An affidavit by the petitioner that no restitution orders or civil
judgments representing amounts ordered for restitution entered against the
petitioner are outstanding.
The petition shall be served upon the district attorney of the court
wherein the case was tried resulting in conviction. The district attorney
shall have 10 days thereafter in which to file any objection thereto and
shall be duly notified as to the date of the hearing of the petition.
The judge to whom the petition is presented is authorized to call upon
a probation officer for any additional investigation or verification of the
petitioner's conduct during the probationary period or during the two-year
period after conviction.
(b) If the court, after hearing, finds that (i) the petitioner was
dismissed and the proceedings against the petitioner discharged pursuant
to G.S. 14-50.29 and that the person had not yet attained 18 years of age
at the time of the offense or (ii) the petitioner has remained of good
behavior and been free of conviction of any felony or misdemeanor other
than a traffic violation for two years from the date of conviction of the
offense in question, the petitioner has no outstanding restitution orders
or civil judgments representing amounts ordered for restitution entered
against him, and the petitioner had not attained the age of 18 years at
the time of the offense in question, it shall order that such person be
restored, in the contemplation of the law, to the status occupied by the
petitioner before such arrest or indictment or information. No person as
to whom such order has been entered shall be held thereafter under any
provision of any laws to be guilty of perjury or otherwise giving a false
statement by reason of the person's failure to recite or acknowledge such
arrest, or indictment or information, or trial, or response to any
inquiry made of the person for any purpose. The court shall also order
that the said conviction be expunged from the records of the court and
direct all law enforcement agencies bearing record of the same to expunge
their records of the conviction as the result of a criminal charge. The
clerk shall forward a certified copy of the order to the sheriff, chief
of police, or other arresting agency. The sheriff, chief of police, or
head of such other arresting agency shall then transmit the copy of the
order with a form supplied by the State Bureau of Investigation to the
State Bureau of Investigation, and the State Bureau of Investigation
shall forward the order to the Federal Bureau of Investigation.
(c) This section is supplemental and in addition to existing law and
shall not be construed so as to repeal any existing provision contained in
the General Statutes of North Carolina.
Section 15A-145.2. Expunction of records for first offenders not
over 21 years of age at the time of the offense of certain drug offenses.
(a) Whenever a person is discharged, and the proceedings against the
person dismissed, pursuant to G.S. 90-96(a) or (a1), and the person was
not over 21 years of age at the time of the offense, the person 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 under G.S. 90-96(c)) all recordation relating to his arrest,
indictment or information, trial, finding of guilty, and dismissal and
discharge pursuant to this section. The applicant shall attach to the
application the following:
(1) An affidavit by the applicant that he has been of good behavior
during the period of probation since the decision to defer further
proceedings on the offense in question and has not been convicted of any
felony or misdemeanor other than a traffic violation under the laws of the
United States or the laws of this State or any other state;
(2) Verified affidavits by two persons who are not related to the
applicant or to each other by blood or marriage, that they know the
character and reputation of the petitioner in the community in which he
lives, and that his character and reputation are good;
(3) Affidavits of the clerk of superior court, chief of police, where
appropriate, and sheriff of the county in which the petitioner was
convicted, and, if different, the county of which the petitioner is a
resident, showing that the applicant has not been convicted of a felony
or misdemeanor other than a traffic violation under the laws of this
State at any time prior to the conviction for the offense in question or
during the period of probation following the decision to defer further
proceedings on the offense in question.
The judge to whom the petition is presented is authorized to call upon
a probation officer for any additional investigation or verification of the
petitioner's conduct during the probationary period deemed desirable.
If the court determines, after hearing, that such person was
discharged and the proceedings against him dismissed and that he was not
over 21 years of age at the time of the offense, it shall enter such
order. The effect of such order shall be to restore such person in the
contemplation of the law to the status he occupied before such arrest or
indictment or information. No person as to whom such order was entered
shall be held thereafter under any provision of any law to be guilty of
perjury or otherwise giving a false statement by reason of his failures to
recite or acknowledge such arrest, or indictment or information, or trial
in response to any inquiry made of him for any purpose.
The court shall also order that said conviction and the records
relating thereto be expunged from the records of the court and direct all
law enforcement agencies bearing records of the same to expunge their
records of the conviction. The clerk shall forward a certified copy of
the order to the sheriff, chief of police, or other arresting agency, as
appropriate, and the sheriff, chief of police, or other arresting agency,
as appropriate, shall forward such order to the State Bureau of
Investigation with a form supplied by the State Bureau of Investigation.
The State Bureau of Investigation shall forward the court order in like
manner to the Federal Bureau of Investigation.
(b) Whenever any person is charged with a misdemeanor under Article 5
of Chapter 90 of the General Statutes by possessing a controlled
substance included within Schedules II through VI of Article 5 of Chapter
90 of the General Statutes or a felony under G.S. 90-95(a)(3) by
possessing less than one gram of cocaine, upon dismissal by the State of
the charges against him, upon entry of a nolle prosequi, or upon a
finding of not guilty or other adjudication of innocence, such person may
apply to the court for an order to expunge from all official records all
recordation relating to his arrest, indictment or information, or trial.
If the court determines, after hearing, that such person was not over 21
years of age at the time the offense for which the person was charged
occurred, it shall enter such order. No person as to whom such order has
been entered shall be held thereafter under any provision of any law to
be guilty of perjury or otherwise giving a false statement by reason of
his failures to recite or acknowledge such arrest, or indictment or
information, or trial in response to any inquiry made of him for any
purpose.
(c) Whenever any person who has not previously been convicted of an
offense under Article 5 of Chapter 90 of the General Statutes or under
any statute of the United States or any state relating to controlled
substances included in any schedule of Article 5 of Chapter 90 of the
General Statutes or to that paraphernalia included in Article 5B of
Chapter 90 of the General Statutes pleads guilty to or has been found
guilty of (i) a misdemeanor under Article 5 of Chapter 90 of the General
Statutes by possessing a controlled substance included within Schedules
II through VI of Article 5 of Chapter 90 of the General Statutes or by
possessing drug paraphernalia as prohibited by G.S. 90-113.22 or (ii) a
felony under G.S. 90-95(a)(3) by possessing less than one gram of
cocaine, the court may, upon application of the person not sooner than 12
months after conviction, order cancellation of the judgment of conviction
and expunction of the records of his arrest, indictment or information,
trial, and conviction. A conviction in which the judgment of conviction
has been canceled and the records expunged pursuant to this subsection
shall not be thereafter deemed a conviction for purposes of this
subsection or for purposes of disqualifications or liabilities imposed by
law upon conviction of a crime, including the additional penalties
imposed for second or subsequent convictions of Article 5 of Chapter 90
of the General Statutes. Cancellation and expunction under this
subsection may occur only once with respect to any person. Disposition of
a case under this subsection at the district court division of the
General Court of Justice shall be final for the purpose of appeal.
The granting of an application filed under this subsection shall
cause the issue of an order to expunge from all official records (other
than the confidential file to be retained by the Administrative Office of
the Courts under G.S. 90-96(c)) all recordation relating to the
petitioner's arrest, indictment or information, trial, finding of guilty,
judgment of conviction, cancellation of the judgment, and expunction of
records pursuant to this subsection.
The judge to whom the petition is presented is authorized to call
upon a probation officer for additional investigation or verification of
the petitioner's conduct since conviction. If the court determines that
the petitioner was convicted of (i) a misdemeanor under Article 5 of
Chapter 90 of the General Statutes for possessing a controlled substance
included within Schedules II through VI of Article 5 of Chapter 90 of the
General Statutes or for possessing drug paraphernalia as prohibited in
G.S. 90-113.22 or (ii) a felony under G.S. 90-95(a)(3) for possession of
less than one gram of cocaine, that he was not over 21 years of age at
the time of the offense, that he has been of good behavior since his
conviction, that he has successfully completed a drug education program
approved for this purpose by the Department of Health and Human Services,
and that he has not been convicted of a felony or misdemeanor other than
a traffic violation under the laws of this State at any time prior to or
since the conviction for the offense in question, it shall enter an order
of expunction of the petitioner's court record. The effect of such order
shall be to restore the petitioner in the contemplation of the law to the
status he occupied before arrest or indictment or information or
conviction. No person as to whom such order was entered shall be held
thereafter under any provision of any law to be guilty of perjury or
otherwise giving a false statement by reason of his failures to recite or
acknowledge such arrest, or indictment or information, or conviction, or
trial in response to any inquiry made of him for any purpose. The judge
may waive the condition that the petitioner attend the drug education
school if the judge makes a specific finding that there was no drug
education school within a reasonable distance of the defendant's
residence or that there were specific extenuating circumstances which
made it likely that the petitioner would not benefit from the program of
instruction.
The court shall also order all law enforcement agencies bearing
records of the conviction and records relating thereto to expunge their
records of the conviction. The clerk shall forward a certified copy of
the order to the sheriff, chief of police, or other arresting agency, as
appropriate, and the arresting agency shall forward the order to the State
Bureau of Investigation with a form supplied by the State Bureau of
Investigation. The State Bureau of Investigation shall forward the court
order in like manner to the Federal Bureau of Investigation.
The clerk of superior court in each county in North Carolina shall,
as soon as practicable after each term of court in his county, file with
the Administrative Office of the Courts the names of those persons whose
judgments of convictions have been canceled and expunged under the
provisions of this subsection, and the Administrative Office of the Courts
shall maintain a confidential file containing the names of persons whose
judgments of convictions have been canceled and expunged. The information
contained in the file shall be disclosed only to judges of the General
Court of Justice of North Carolina for the purpose of ascertaining
whether any person charged with an offense under Article 5 of Chapter 90
of the General Statutes has been previously granted cancellation and
expunction of a judgment of conviction pursuant to the terms of this
subsection.
(d) A person who files a petition for expunction of a criminal record
under this section must pay the clerk of superior court a fee of
sixty-five dollars ($65.00) at the time the petition is filed. Fees
collected under this subsection shall be deposited in the General Fund.
This subsection does not apply to petitions filed by an indigent. "
SECTION 3. Article 5 of Chapter 15A of the General Statutes is
amended by adding a new section to read:
" Section 15A-145.3. Expunction of records for first offenders not
over 21 years of age at the time of the offense of certain toxic vapors
offenses.
(a) Whenever a person is discharged and the proceedings against the
person dismissed under G.S. 90-113.14(a) or (a1), such person, if he was
not over 21 years of age at the time of the 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 under G.S. 90-113.14(c)) all recordation relating to his arrest,
indictment or information, trial, finding of guilty, and dismissal and
discharge pursuant to this section. The applicant shall attach to the
application the following:
(1) An affidavit by the applicant that he has been of good behavior
during the period of probation since the decision to defer further
proceedings on the misdemeanor in question and has not been convicted of any
felony or misdemeanor other than a traffic violation under the laws of the
United States or the laws of this State or any other state;
(2) Verified affidavits by two persons who are not related to the
applicant or to each other by blood or marriage, that they know the
character and reputation of the petitioner in the community in which he
lives, and that his character and reputation are good;
(3) Affidavits of the clerk of superior court, chief of police, where
appropriate, and sheriff of the county in which the petitioner was
convicted, and, if different, the county of which the petitioner is a
resident, showing that the applicant has not been convicted of a felony
or misdemeanor other than a traffic violation under the laws of this
State at any time prior to the conviction for the misdemeanor in question
or during the period of probation following the decision to defer further
proceedings on the misdemeanor in question.
The judge to whom the petition is presented is authorized to call upon
a probation officer for any additional investigation or verification of the
petitioner's conduct during the probationary period deemed desirable.
If the court determines, after hearing, that such person was
discharged and the proceedings against him dismissed and that he was not
over 21 years of age at the time of the offense, it shall enter such
order. The effect of such order shall be to restore such person in the
contemplation of the law to the status he occupied before such arrest or
indictment or information. No person as to whom such order was entered
shall be held thereafter under any provision of any law to be guilty of
perjury or otherwise giving a false statement by reason of his failures to
recite or acknowledge such arrest, or indictment or information, or trial
in response to any inquiry made of him for any purpose.
The court shall also order that said conviction and the records
relating thereto be expunged from the records of the court and direct all
law enforcement agencies bearing records of the same to expunge their
records of the conviction. The clerk shall forward a certified copy of
the order to the sheriff, chief of police, or other arresting agency, as
appropriate, and the sheriff, chief of police, or other arresting agency,
as appropriate, shall forward such order to the State Bureau of
Investigation with a form supplied by the State Bureau of Investigation.
The State Bureau of Investigation shall forward the court order in like
manner to the Federal Bureau of Investigation.
(b) Whenever any person is charged with a misdemeanor under Article
5A of Chapter 90 of the General Statutes or possessing drug paraphernalia
as prohibited by G.S. 90-113.22, upon dismissal by the State of the
charges against him or upon entry of a nolle prosequi or upon a finding
of not guilty or other adjudication of innocence, such person may apply
to the court for an order to expunge from all official records all
recordation relating to his arrest, indictment or information, and
trial. If the court determines, after hearing that such person was not
over 21 years of age at the time the offense for which the person was
charged occurred, it shall enter such order. No person as to whom such
order has been entered shall be held thereafter under any provision of
any law to be guilty of perjury or otherwise giving a false statement by
reason of his failures to recite or acknowledge such arrest, or
indictment or information, or trial in response to any inquiry made of
him for any purpose.
(c) Whenever any person who has not previously been convicted of an
offense under Article 5 or 5A of Chapter 90 of the General Statutes or
under any statute of the United States or any state relating to
controlled substances included in any schedule of Article 5 of Chapter 90
of the General Statutes or to that paraphernalia included in Article 5B
of Chapter 90 of the General Statutes pleads guilty to or has been found
guilty of a misdemeanor under Article 5A of Chapter 90 of the General
Statutes, the court may, upon application of the person not sooner than 12
months after conviction, order cancellation of the judgment of conviction
and expunction of the records of his arrest, indictment or information,
trial, and conviction. A conviction in which the judgment of conviction
has been cancelled and the records expunged pursuant to this subsection
shall not be thereafter deemed a conviction for purposes of this
subsection or for purposes of disqualifications or liabilities imposed by
law upon conviction of a crime, including the additional penalties
imposed for second or subsequent convictions of violation of Article 5A
of Chapter 90 of the General Statutes. Cancellation and expunction under
this subsection may occur only once with respect to any person.
Disposition of a case under this subsection at the district court
division of the General Court of Justice shall be final for the purpose
of appeal.
The granting of an application filed under this subsection shall cause
the issue of an order to expunge from all official records (other than the
confidential file to be retained by the Administrative Office of the Courts
under G.S. 90-113.14(c)) all recordation relating to his arrest, indictment
or information, trial, finding of guilty, judgment of conviction,
cancellation of the judgment, and expunction of records pursuant to this
subsection.
The judge to whom the petition is presented is authorized to call
upon a probation officer for additional investigation or verification of
the petitioner's conduct since conviction. If the court determines that
the petitioner was convicted of a misdemeanor under Article 5A of Chapter
90 of the General Statutes, or for possessing drug paraphernalia as
prohibited by G.S. 90-113.22, that he was not over 21 years of age at the
time of the offense, that he has been of good behavior since his
conviction, that he has successfully completed a drug education program
approved for this purpose by the Department of Health and Human Services,
and that he has not been convicted of a felony or misdemeanor other than
a traffic violation under the laws of this State at any time prior to or
since the conviction for the misdemeanor in question, it shall enter an
order of expunction of the petitioner's court record. The effect of such
order shall be to restore the petitioner in the contemplation of the law
to the status he occupied before such arrest or indictment or information
or conviction. No person as to whom such order was entered shall be held
thereafter under any provision of any law to be guilty of perjury or
otherwise giving a false statement by reason of his failures to recite or
acknowledge such arrest, or indictment or information, or conviction, or
trial in response to any inquiry made of him for any purpose. The judge
may waive the condition that the petitioner attend the drug education
school if the judge makes a specific finding that there was no drug
education school within a reasonable distance of the defendant's
residence or that there were specific extenuating circumstances which
made it likely that the petitioner would not benefit from the program of
instruction.
The court shall also order all law enforcement agencies bearing
records of the conviction and records relating thereto to expunge their
records of the conviction. The clerk shall forward a certified copy of
the order to the sheriff, chief of police, or other arresting agency, as
appropriate, and the arresting agency shall forward the order to the State
Bureau of Investigation with a form supplied by the State Bureau of
Investigation. The State Bureau of Investigation shall forward the court
order in like manner to the Federal Bureau of Investigation.
The clerk of superior court in each county in North Carolina shall,
as soon as practicable after each term of court in his county, file with
the Administrative Office of the Courts the names of those persons whose
judgments of convictions have been cancelled and expunged under the
provisions of this subsection, and the Administrative Office of the Courts
shall maintain a confidential file containing the names of persons whose
judgments of convictions have been cancelled and expunged. The
information contained in the file shall be disclosed only to judges of
the General Court of Justice of North Carolina for the purpose of
ascertaining whether any person charged with an offense under Article 5A
of Chapter 90 of the General Statutes has been previously granted
cancellation and expunction of a judgment of conviction pursuant to the
terms of this subsection. "
SECTION 3.1. G.S. 15A-146(a1) reads as rewritten:
"(a1) Notwithstanding subsection (a) of this section, if a person is
charged with multiple offenses and all the charges are dismissed, or
findings of not guilty or not responsible are made, then a person may
apply to have each of those charges expunged if the offenses occurred
within the same 12-month period of time or if the charges are dismissed
or findings are made at the same term of court. Unless circumstances
otherwise clearly provide, the phrase "term of court" shall mean one week
for superior court and one day for district court. There is no
requirement that the multiple offenses arise out of the same transaction
or occurrence or that the multiple offenses were consolidated for
judgment. The court shall hold a hearing on the application. If the court
finds (i) that the person had not previously received an expungement
under this subsection, or that any previous expungement
received under this subsection occurred prior to October 1, 2005 and was
for an offense that occurred within the same 12-month period of time, or
was dismissed or findings made at the same term of court, as the offenses
that are the subject of the current application, (ii) that the person had
not previously received an expungement under G.S. 15A-145 or G.S. 90-96,
and (iii) that the person had not previously been convicted of any felony
under the laws of the United States, this State, or any other state, the
court shall order the expunction. No person as to whom such an order has
been entered shall be held thereafter under any provision of any law to
be guilty of perjury, or to be guilty of otherwise giving a false
statement or response to any inquiry made for any purpose, by reason of
his failure to recite or acknowledge any expunged entries concerning
apprehension or trial."
SECTION 4. G.S. 14-50.29 reads as rewritten:
"Section 14-50.29. Conditional discharge for first offenders under
the age of 18.
(a) Whenever any person who has not previously been convicted of any felony or misdemeanor
other than a traffic violation under the laws of the United States or the
laws of this State or any other state, pleads guilty to or is guilty of
(i) a Class H felony under this Article or (ii) an enhanced offense under
G.S. 14-50.22, and the offense was committed before the person attained
the age of 18 years, the court may, without entering a judgment of guilt
and with the consent of the defendant, defer further proceedings and
place the defendant on probation upon such reasonable terms and conditions
as the court may require.
(b) If the court, in its discretion, defers proceedings pursuant to
this section, it shall place the defendant on supervised probation for
not less than one year, in addition to any other conditions. Prior to
taking any action to discharge and dismiss under this section, the court
shall make a finding that the defendant has no previous criminal
convictions. Upon fulfillment of the terms and conditions of the
probation provided for in this section, the court shall discharge the
defendant and dismiss the proceedings against the defendant.
(c) Discharge and dismissal under this section shall be without court
adjudication of guilt and shall not be deemed a conviction for purposes
of this section or for purposes of disqualifications or disabilities
imposed by law upon conviction of a crime. Discharge and dismissal under
this section may occur only once with respect to any person. Disposition
of a case to determine discharge and dismissal under this section at the
district court division of the General Court of Justice shall be final
for the purpose of appeal. Upon violation of a term or condition of the
probation provided for in this section, the court may enter an
adjudication of guilt and proceed as otherwise provided.
(d) Upon discharge and dismissal pursuant to this section, the person
may apply for an order to expunge the complete record of the proceedings
resulting in the dismissal and discharge, pursuant to the procedures and
requirements set forth in G.S. 15A-145.1.
(e) The clerk of superior court in each county in North Carolina
shall, as soon as practicable after each term of court in his county,
file with the Administrative Office of the Courts the names of those
persons granted a discharge under the provisions of this section, and the
Administrative Office of the Courts shall maintain a confidential file
containing the names of persons granted conditional discharges. The
information contained in such file shall be disclosed only to judges of
the General Court of Justice of North Carolina for the purpose of
ascertaining whether any person charged with an offense has been
previously granted a discharge."
SECTION 5. G.S. 14-50.30 reads as rewritten:
"Section 14-50.30. Expunction of records.
(a)Any person who has not previously been convicted of any felony or misdemeanor
other than a traffic violation under the laws of the United States or the
laws of this State or any other state, may, if the offense was committed
before the person attained the age of 18 years, be eligible to apply for
expunction of certain offenses under this Article pursuant to G.S.
15A-145.1.
SECTION 6. G.S. 90-96 reads as rewritten:
"Section 90-96. Conditional discharge for first offense.
(a) Whenever any person who has not previously been convicted of any
offense under this Article or under any statute of the United States or
any state relating to those substances included in Article 5 or 5A of
Chapter 90 or to that paraphernalia included in Article 5B of Chapter 90
pleads guilty to or is found guilty of (i) a misdemeanor under this
Article by possessing a controlled substance included within Schedules II
through VI of this Article or by possessing drug paraphernalia as
prohibited by G.S. 90-113.22, or (ii) a felony under G.S.
90-95(a)(3) by possessing less than one gram of cocaine, the court may,
without entering a judgment of guilt and with the consent of such
person, defer further proceedings and place him on probation upon such
reasonable terms and conditions as it may require. Notwithstanding the
provisions of G.S. 15A-1342(c) or any other statute or law, probation may
be imposed under this section for an offense under this Article for which
the prescribed punishment includes only a fine. To fulfill the terms and
conditions of probation the court may allow the defendant to participate
in a drug education program approved for this purpose by the Department
of Health and Human Services. Upon violation of a term or condition, the
court may enter an adjudication of guilt and proceed as otherwise
provided. Upon fulfillment of the terms and conditions, the court shall
discharge such person and dismiss the proceedings against him. Discharge
and dismissal under this section shall be without court adjudication of
guilt and shall not be deemed a conviction for purposes of this section
or for purposes of disqualifications or disabilities imposed by law upon
conviction of a crime including the additional penalties imposed for
second or subsequent convictions under this Article. Discharge and
dismissal under this section or G.S. 90-113.14 may occur only once with
respect to any person. Disposition of a case to determine discharge and
dismissal under this section at the district court division of the
General Court of Justice shall be final for the purpose of appeal. Prior
to taking any action to discharge and dismiss under this section the
court shall make a finding that the defendant has no record of previous
convictions under the "North Carolina Controlled Substances Act", Article
5, Chapter 90, the "North Carolina Toxic Vapors Act", Article 5A, Chapter
90, or the "Drug Paraphernalia Act", Article 5B, Chapter 90.
(a1) Upon the first conviction only of any offense included in G.S.
90-95(a)(3) or G.S. 90-113.22 and subject to the provisions
of this subsection (a1), the court may place defendant on probation under
this section for an offense under this Article including an offense for
which the prescribed punishment includes only a fine. The probation, if
imposed, shall be for not less than one year and shall contain a minimum
condition that the defendant who was found guilty or pleads guilty enroll
in and successfully complete, within 150 days of the date of the
imposition of said probation, the program of instruction at the drug
education school approved by the Department of Health and Human Services
pursuant to G.S. 90-96.01. The court may impose probation that does not
contain a condition that defendant successfully complete the program of
instruction at a drug education school if:
(1) There is no drug education school within a reasonable distance of
the defendant's residence; or
(2) There are specific, extenuating circumstances which make it likely
that defendant will not benefit from the program of instruction.
The court shall enter such specific findings in the record; provided
that in the case of subdivision (2) above, such findings shall include
the specific, extenuating circumstances which make it likely that the
defendant will not benefit from the program of instruction.
Upon fulfillment of the terms and conditions of the probation, the
court shall discharge such person and dismiss the proceedings against the
person.
For the purposes of determining whether the conviction is a first
conviction or whether a person has already had discharge and dismissal,
no prior offense occurring more than seven years before the date of the
current offense shall be considered. In addition, convictions for
violations of a provision of G.S. 90-95(a)(1) or 90-95(a)(2) or
90-95(a)(3), or 90-113.10, or 90-113.11, or 90-113.12, or 90-113.21
90-113.22 shall be considered previous convictions.
Failure to complete successfully an approved program of instruction
at a drug education school shall constitute grounds to revoke probation
pursuant to this subsection and deny application for expunction of all
recordation of defendant's arrest, indictment, or information, trial,
finding of guilty, and dismissal and discharge pursuant to this section.
G.S. 15A-145.2. For purposes of this subsection, the phrase "failure to
complete successfully the prescribed program of instruction at a drug
education school" includes failure to attend scheduled classes without a
valid excuse, failure to complete the course within 150 days of
imposition of probation, willful failure to pay the required fee for the
course as provided in G.S. 90-96.01(b), or any other manner in
which the person fails to complete the course successfully. The
instructor of the course to which a person is assigned shall report any
failure of a person to complete successfully the program of instruction
to the court which imposed probation. Upon receipt of the instructor's
report that the person failed to complete the program successfully, the
court shall revoke probation, shall not discharge such
person, shall not dismiss the proceedings against the person, and shall
deny application for expunction of all recordation of defendant's
arrest, indictment, or information, trial, finding of guilty, and
dismissal and discharge pursuant G.S. 15A-145.2. A
person may obtain a hearing before the court of original jurisdiction
prior to revocation of probation or denial of application for expunction.
This subsection is supplemental and in addition to existing law and
shall not be construed so as to repeal any existing provision contained
in the General Statutes of North Carolina.
(b) Upon the discharge of such person, and
dismissal of the proceedings against him under subsection (a) or
(a1) of this section, such person, if he were not over 21 years of age at
the time of the offense, may be eligible to apply for expunction of
certain records relating to the offense pursuant to G.S. 15A-145.2(a).
(c) The clerk of superior court in each county in North Carolina
shall, as soon as practicable after each term of court in his county,
file with the Administrative Office of the Courts the names of those
persons granted a conditional discharge under the provisions of this
Article, and the Administrative Office of the Courts shall maintain a
confidential file containing the names of persons granted conditional
discharges. The information contained in the file shall be disclosed only
to Judges of the General Court of Justice of North Carolina for the
purpose of ascertaining whether any person charged with an offense under
this Article has been previously granted a conditional discharge.
(d) Whenever any person is charged with a misdemeanor under this
Article by possessing a controlled substance included within Schedules II
through VI of this Article or a felony under G.S. 90-95(a)(3) by
possessing less than one gram of cocaine, upon dismissal by the State of
the charges against him, upon entry of a nolle prosequi, or upon a
finding of not guilty or other adjudication of innocence, the person may
be eligible to apply for expunction of certain records relating to the
offense pursuant to G.S. 15A-145.2(b).
(e) Whenever any person who has not previously been convicted of an
offense under this Article or under any statute of the United States or
any state relating to controlled substances included in any schedule of
this Article or to that paraphernalia included in Article 5B of Chapter
90 of the General Statutes pleads guilty to or has been found guilty of
(i) a misdemeanor under this Article by possessing a controlled substance
included within Schedules II through VI of this Article, or by possessing
drug paraphernalia as prohibited by G.S. 90-113.22 or (ii)
a felony under G.S. 90-95(a)(3) by possessing less than one gram of
cocaine, the person may be eligible to apply for cancellation of the
judgment and expunction of certain records related to the offense
pursuant to G.S. 15A-145.2(c).
SECTION 7. G.S. 90-113.14 reads as rewritten:
"Section 90-113.14. Conditional discharge for first offenses.
(a) Whenever any person who has not previously been convicted of any
offense under this Article or under any statute of the United States or
any state relating to those substances included in Article 5 or 5A or 5B
of Chapter 90 pleads guilty to or is found guilty of inhaling or
possessing any substance having the property of releasing toxic vapors or
fumes in violation of Article 5A of Chapter 90, the court may, without
entering a judgment of guilt and with the consent of such person, defer
further proceedings and place him on probation upon such reasonable terms
and conditions as it may require. Notwithstanding the provisions of G.S.
15A-1342(c) or any other statute or law, probation may be imposed under
this section for an offense under this Article for which the prescribed
punishment includes only a fine. To fulfill the terms and conditions of
probation the court may allow the defendant to participate in a drug
education program approved for this purpose by the Department of Health
and Human Services. Upon violation of a term or condition, the court may
enter an adjudication of guilt and proceed as otherwise provided. Upon
fulfillment of the terms and conditions, the court shall discharge such
person and dismiss the proceedings against him. Discharge and dismissal
under this section shall be without court adjudication of guilt and shall
not be deemed a conviction for purposes of this section or for purposes
of disqualifications or disabilities imposed by law upon conviction of a
crime including the additional penalties imposed for second or subsequent
convictions. Discharge and dismissal under this section or G.S. 90-96 may
occur only once with respect to any person. Disposition of a case to
determine discharge and dismissal under this section at the district
court division of the General Court of Justice shall be final for the
purpose of appeal. Prior to taking any action to discharge or dismiss
under this section the court shall make a finding that the defendant has
no record of previous convictions under the "North Carolina Toxic Vapors
Act", Article 5A, Chapter 90, the "North Carolina Controlled Substances
Act", Article 5, Chapter 90, or the "Drug Paraphernalia Act", Article
5B, Chapter 90.
(a1) Upon the first conviction only of any offense included in G.S.
90-113.10 or 90-113.11 and subject to the provisions of this subsection
(a1), the court may place defendant on probation under this section for
an offense under this Article including an offense for which the
prescribed punishment includes only a fine. The probation, if imposed,
shall be for not less than one year and shall contain a minimum condition
that the defendant who was found guilty or pleads guilty enroll in and
successfully complete, within 150 days of the date of the imposition of
said probation, the program of instruction at the drug education school
approved by the Department of Health and Human Services pursuant to G.S.
90-96.01. The court may impose probation that does not contain a
condition that defendant successfully complete the program of instruction
at a drug education school if:
(1) There is no drug education school within a reasonable distance of
the defendant's residence; or
(2) There are specific, extenuating circumstances which make it likely
that defendant will not benefit from the program of instruction.
The court shall enter such specific findings in the record; provided
that in the case of subsection (2) above, such findings shall include the
specific, extenuating circumstances which make it likely that the
defendant will not benefit from the program of instruction.
Upon fulfillment of the terms and conditions of the probation, the
court shall discharge such person and dismiss the proceedings against the
person.
For the purpose of determining whether the conviction is a first
conviction or whether a person has already had discharge and dismissal,
no prior offense occurring more than seven years before the date of the
current offense shall be considered. In addition, convictions for
violations of a provision of G.S. 90-95(a)(1) or 90-95(a)(2) or
90-95(a)(3), or 90-113.10, or 90-113.11, or 90-113.12, or 90-113.21
90-113.22 shall be considered previous convictions.
Failure to complete successfully an approved program of instruction
at a drug education school shall constitute grounds to revoke probation
pursuant to this subsection and deny application for expunction of all
recordation of defendant's arrest, indictment, or information, trial,
finding of guilty, and dismissal and discharge pursuant
G.S. 15A-145.3. For purposes of this subsection, the phrase "failure to
complete successfully the prescribed program of instruction at a drug
education school" includes failure to attend scheduled classes without a
valid excuse, failure to complete the course within 150 days of
imposition of probation, willful failure to pay the required fee for the
course as provided in G.S. 90-96.01(b), or any other manner in
which the person fails to complete the course successfully. The
instructor of the course to which a person is assigned shall report any
failure of a person to complete successfully the program of instruction
to the court which imposed probation. Upon receipt of the instructor's
report that the person failed to complete the program successfully, the
court shall revoke probation, shall not discharge such
person, shall not dismiss the proceedings against the person, and shall
deny application for expunction of all recordation of defendant's
arrest, indictment, or information, trial, finding of guilty, and
dismissal and discharge pursuant to G.S. 15A-145.3. A person
may obtain a hearing before the court of original jurisdiction prior to
revocation of probation or denial of application for expunction.
This subsection is supplemental and in addition to existing law and
shall not be construed so as to repeal any existing provision contained
in the General Statutes of North Carolina.
(b) Upon the dismissal of such person, and discharge of the
proceedings against him under subsection (a) or (a1) of this section, such
person, if he were not over 21 years of age at the time of the offense,
may be eligible to apply for expunction of certain records relating to
the offense pursuant to G.S. 15A-145.3(a).
(c) The clerk of superior court in each county in North Carolina
shall, as soon as practicable after each term of court in his county,
file with the Commission, the names of all persons convicted under such
Articles, together with the offense or offenses of which such persons
were convicted. The clerk shall also file with the Administrative Office
of the Courts the names of those persons granted a conditional discharge
under the provisions of this Article, and the Administrative Office of
the Court shall maintain a confidential file containing the names of
persons granted conditional discharges. The information contained in such
file shall be disclosed only to judges of the General Court of Justice of
North Carolina for the purpose of ascertaining whether any person charged
with an offense under Article 5 or 5A has been previously granted a
conditional discharge.
(d) Whenever any person is charged with a misdemeanor under this
Article possessing drug paraphernalia as
prohibited by C.S. 90-113.22 upon dismissal by the State of
the charges against him or upon entry of a nolle prosequi or upon a
finding of not guilty or other adjudication of innocence, the person may
be eligible to apply for expunction of certain records relating to the
offense pursuant to G.S. 15A-145.3(b).
(e) Whenever any person who has not previously been convicted of an
offense under this Article or under any statute of the United States or
any state relating to controlled substances included in any schedule of
Article 5 of Chapter 90 of the General Statutes or to that
paraphernalia included in Article 5B of Chapter 90 of the General
Statutes pleads guilty to or has been found guilty of a misdemeanor under
this Article, the person may be eligible to
apply for cancellation of the judgment and expunction of certain records
related to the offense pursuant to G.S. 15A-145.3(c).
SECTION 8. G.S. 15A-146(a) reads as rewritten:
"(a) If any person is charged with a crime, either a misdemeanor or a
felony, or was charged with an infraction under G.S. 18B-302(i) prior to
December 1, 1999, and the charge is dismissed, or a finding of not guilty
or not responsible is entered, that person may apply to the court of the
county where the charge was brought for an order to expunge from all
official records any entries relating to his apprehension or trial. The
court shall hold a hearing on the application and, upon finding that the
person had not previously received an expungement under this section,
G.S. 15A-145, G.S. 15A-145.1, 15A-145.2, or 15A-145.3, and
that the person had not previously been convicted of any felony under the
laws of the United States, this State, or any other state, the court
shall order the expunction. No person as to whom such an order has been
entered shall be held thereafter under any provision of any law to be
guilty of perjury, or to be guilty of otherwise giving a false statement
or response to any inquiry made for any purpose, by reason of his failure
to recite or acknowledge any expunged entries concerning apprehension or
trial."
SECTION 9. G.S. 15A-146(a1) reads as rewritten:
"(a1) Notwithstanding subsection (a) of this section, if a person is
charged with multiple offenses and all the charges are dismissed, or
findings of not guilty or not responsible are made, then a person may
apply to have each of those charges expunged if the offenses occurred
within the same 12-month period of time or if the charges are dismissed
or findings are made at the same term of court. Unless circumstances
otherwise clearly provide, the phrase "term of court" shall mean one week
for superior court and one day for district court. There is no
requirement that the multiple offenses arise out of the same transaction
or occurrence or that the multiple offenses were consolidated for
judgment. The court shall hold a hearing on the application. If the court
finds that the person had not previously received an expungement under
this subsection, that the person had not previously received an
expungement under G.S. 15A-145, 15A-145.1,
15A-145.2, or 15A-145.3, and that the person had not previously been
convicted of any felony under the laws of the United States, this State,
or any other state, the court shall order the expunction. No person as to
whom such an order has been entered shall be held thereafter under any
provision of any law to be guilty of perjury, or to be guilty of otherwise
giving a false statement or response to any inquiry made for any
purpose, by reason of his failure to recite or acknowledge any expunged
entries concerning apprehension or trial."
SECTION 10. G.S. 15A-145 reads as rewritten:
"Section 15A-145. Expunction of records for first offenders under the
age of 18 at the time of conviction of misdemeanor; expunction of certain
other misdemeanors.
(a) Whenever any person who has not previously been convicted of any felony, or misdemeanor
other than a traffic violation, under the laws of the United States, the
laws of this State or any other state, (i) pleads guilty to or is guilty
of a misdemeanor other than a traffic violation, and the offense was
committed before the person attained the age of 18 years, ii) pleads
guilty to or is guilty of a misdemeanor possession of alcohol pursuant to
G.S. 18B-302(b)(1), and the offense was committed before the person
attained the age of 21 years, he may file a petition in the court where
he was convicted for expunction of the misdemeanor from his criminal
record. The petition cannot be filed earlier than: (i) two years after
the date of the conviction, or (ii) the completion of any period of
probation, whichever occurs later, and the petition shall contain, but not
be limited to, the following:
(1) An affidavit by the petitioner that he has been of good behavior
for the two-year period since the date of conviction of the misdemeanor
in question and has not been convicted of any felony, or misdemeanor
other than a traffic violation, under the laws of the United States or
the laws of this State or any other state.
(2) Verified affidavits of two persons who are not related to the
petitioner or to each other by blood or marriage, that they know the
character and reputation of the petitioner in the community in which he
lives and that his character and reputation are good.
(3) A statement that the petition is a motion in the cause 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 and, if different, the county of which the petitioner is a
resident, showing that the petitioner has not been convicted of a felony
or misdemeanor other than a traffic violation under the laws of this
State at any time prior to the conviction for the misdemeanor in question
or during the two-year period following that conviction.
(5) An affidavit by the petitioner that no restitution orders or civil
judgments representing amounts ordered for restitution entered against him
are outstanding.
The petition shall be served upon the district attorney of the court
wherein the case was tried resulting in conviction. The district attorney
shall have 10 days thereafter in which to file any objection thereto and
shall be duly notified as to the date of the hearing of the petition.
The judge to whom the petition is presented is authorized to call
upon a probation officer for any additional investigation or verification
of the petitioner's conduct during the two-year period that he deems
desirable.
(b) If the court, after hearing, finds that the petitioner had
remained of good behavior and been free of conviction of any felony or
misdemeanor, other than a traffic violation, for two years from the date
of conviction of the misdemeanor in question, the petitioner has no
outstanding restitution orders or civil judgments representing amounts
ordered for restitution entered against him, and (i) petitioner was not 18
years old at the time of the offense in question, or (ii)
petitioner was not 21 years old at the time of the offense of
possession of alcohol pursuant to G.S. 18B-302(b)(1), it shall order that
such person be restored, in the contemplation of the law, to the status
he occupied before such arrest or indictment or information. No person as
to whom such order has been entered shall be held thereafter under any
provision of any laws to be guilty of perjury or otherwise giving a false
statement by reason of his failure to recite or acknowledge such arrest,
or indictment, information, or trial, or response to any inquiry made of
him for any purpose.
(c) The court shall also order that the said misdemeanor conviction,
or a civil revocation of a drivers license as the result of a criminal
charge, be expunged from the records of the court, and direct all
law-enforcement agencies, including the Division of Motor Vehicles,
bearing record of the same to expunge their records of the conviction or
a civil revocation of a drivers license as the result of a criminal
charge. This subsection does not apply to civil or criminal charges based
upon the civil revocation, or to civil revocations under G.S. 20-16.2. The
clerk shall forward a certified copy of the order to the sheriff, chief
of police, or other arresting agency. The clerk shall forward a certified
copy of the order to the Division of Motor Vehicles for the expunction of
a civil revocation provided the underlying criminal charge is also
expunged. The civil revocation of a drivers license shall not be expunged
prior to a final disposition of any pending civil or criminal charge based
upon the civil revocation. The sheriff, chief or head of such other
arresting agency shall then transmit the copy of the order with a form
supplied by the State Bureau of Investigation to the State Bureau of
Investigation, and the State Bureau of Investigation shall forward the
order to the Federal Bureau of Investigation.
(d) The clerk of superior court in each county in North Carolina
shall, as soon as practicable after each term of court in his county,
file with the Administrative Office of the Courts, the names of those
persons granted a discharge under the provisions of this section, and the
Administrative Office of the Courts shall maintain a confidential file
containing the names of persons granted conditional discharges. The
information contained in such file shall be disclosed only to judges of
the General Court of Justice of North Carolina for the purpose of
ascertaining whether any person charged with an offense has been
previously granted a discharge.
(d1) Notwithstanding subsection (a) of this section and any other
provision of law, a person may file a petition in the court where the person
was convicted for expunction of a misdemeanor conviction from the person's
criminal record if the person has no prior felony convictions and was
convicted for misdemeanor larceny pursuant to G.S. 14-72(a) more than 15
years prior to the filing of the petition.
The petition shall contain, but not be limited to, the following:
(1) An affidavit by the petitioner that he has not been convicted of
any felony, has been of good behavior for the 15-year period preceding
the filing of the petition, and has not been convicted of any misdemeanor
other than a traffic violation, under the laws of the United States or
the laws of this State or any other state during the 15-year period.
(2) Verified affidavits of two persons who are not related to the
petitioner or to each other by blood or marriage, that they know the
character and reputation of the petitioner in the community in which he
lives and that his character and reputation are good.
(3) A statement that the petition is a motion in the cause 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 and, if different, the county of which the petitioner is a
resident, showing that the petitioner has not been convicted of a felony
or misdemeanor other than a traffic violation under the laws of this
State during the 10-year period preceding the filing of the petition.
(5) An affidavit by the petitioner that no restitution orders or civil
judgments representing amounts ordered for restitution entered against him
are outstanding.
The petition shall be served upon the district attorney of the court
wherein the case was tried resulting in conviction. The district attorney
shall have 10 days thereafter in which to file any objection thereto and
shall
