SUMMARY OF NORTH CAROLINA EXPUNCTIONS. Criteria Filing Requirements Add l Information

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1 Prepared by Dinne R. Gnder-Stanley, NCCU Schl f Law Updated July 2012 by Daniel Bwes, NC Justice Center Type f Expunctin Nn-vilent Misdemeanr r Felny (All Ages) GS 15A (Effective 12/1/2012) Criteria Filing Requirements Add l Infrmatin Eligible Offense = nn-vilent misdemeanr r Class H r I felny NOT including ffenses with assault as an essential element r ffenses enumerated in 15A-145.5(a) If multiple NV ffenses: The cnvictins ccurred in same sessin f curt And the DOO was befre client was arrested and charged Recrd = n ther cnvictins (ther than traffic misds) Must wait 15 yrs frm date f cnvictin r until sentence is cmpleted (whichever is later) Curt agrees t grant expunctin in its discretin Frm: currently being develped Cst: $175 unless indigent filing Has gd mral character since DOC N cnvictins (ther than traffic misds) since DOC Petitin is a mtin in the cause N utstanding restitutin rder 2 affidavits cnfirming gd character/reputatin frm peple nt related t client r each ther Authrizatin fr AOC and DOJ recrd searches (including pending charges) Ntice f hrg & service n DA (DA must attempt t ntify victim, has 30d t bject) In reviewing petitin, judge may call upn a prbatin fficer fr any additinal investigatin and shall review any ther infrmatin the curt deems relevant. If curt denies petitin, the rder must include a finding as t the reasn fr the denial Even if expunctin granted, cnvictin must be disclsed t law enfrcement r crrectinal agencies fr emplyment purpses under GS 17C r 17E Prvisin des NOT expunge DNA recrds & samples ABBREVIATIONS: CS=Cntrlled Substance, DOC=Date f Cnvictin, DOO=Date f Offense, Hrg=Hearing, Misd=Misdemeanr, NG=Nt Guilty, NVF=Nn-vilent Felny

2 Prepared by Dinne R. Gnder-Stanley, NCCU Schl f Law Updated July 2012 by Daniel Bwes, NC Justice Center Type f Expunctin Nn-vilent Felny under 18 GS 15A Criteria Filing Requirements Add l Infrmatin Eligible Offense = nn-vilent Class H r I felny NOT including ffenses with assault as an essential element r ffenses therwise enumerated in 15A (a) DOO was befre age 18 If multiple NVF ffenses: The cnvictins ccurred in same sessin f curt And the DOO was befre client was arrested & charged Recrd = n ther cnvictins (ther than traffic misds) Must wait 4 yrs frm DOC r until sentence is cmpleted (whichever is later) Must cmplete 100 hrs cmmunity service Must have GED r HS diplma Curt agrees t grant expunctin in its discretin Frm: AOC-CR-279 Cst: $0 Has gd mral character since DOC N cnvictins (ther than traffic misds) since DOC Petitin is a mtin in the cause N utstanding restitutin rder judgments Details the 100hrs f cmmunity svc perfrmed since DOC Has a HS diplma r GED 2 affidavits cnfirming gd character/reputatin frm peple nt related t client r each ther Authrizatin fr AOC and DOJ recrd searches (including pending charges) Ntice f hrg & service n DA (attempt t ntify victim, has 30d t bject) Befre expunctin rdered, judge MUST Have prbatin ffice investigate cnduct during 4yrs since cnv Review juvenile recrd Review restitutin paid vs amunt actually due t victim Review ANY relevant infrmatin/affidavits Even if expunctin granted, cnvictin must be disclsed t law enfrcement r crrectinal agencies fr emplyment purpses under GS 17C r 17E Any felny ffense in Chapter 90 f the GS where the ffense invlves methamphetamines, herin, r pssessin with intent t sell r deliver r sell and deliver ccaine is nt a nnvilent felny fr purpses f this expunctin, except that if a prayer fr judgment cntinued has been entered fr an ffense classified as either a Class G, H, r I felny, the PJC shall be subject t expunctin under the prcedures in this sectin. ABBREVIATIONS: CS=Cntrlled Substance, DOC=Date f Cnvictin, DOO=Date f Offense, Hrg=Hearing, Misd=Misdemeanr, NG=Nt Guilty, NVF=Nn-vilent Felny

3 Prepared by Dinne R. Gnder-Stanley, NCCU Schl f Law Updated July 2012 by Daniel Bwes, NC Justice Center Type f Expunctin Misd 1 st Offense Under age 18/21 GS 15A-145(a) 1 st Drug/Txic Vaprs Offense Under 22 GS 15A (c) r GS 15A (c) Criteria Filing Requirements Add l Infrmatin Was a nn-traffic misd cmmitted befre age 18 OR pss f alchl (18B-302 (b)(1)) cmmitted befre age 21 Must wait until finishes prbatin r until 2 yrs frm DOC (whichever is later) Has n utstanding rders/judgments Recrd = n ther cnvictins (ther than traffic misds) Was nt ver age 21 n DOO Charge was: Misd Pss f Sch I-VI CS, r A Txic Vaprs misd, r Pss f Drug Para Felny Pss f a CS under GS 90-95(a)(3) * *but see additinal cmments sectin Has n ther ch 90, CS, r paraphernalia cnvictins Has n ther cnvictins (ther than traffic misds) Has been at least 12 ms since DOC Has had gd behavir since DOC & cmpleted a drug educ prf (unless waived) Frm: AOC-CR-264 Cst: $125 unless indigent filing 2 yrs gd behavir N ther cnvictins (ther than traffic misds) Petitin is a mtin in the cause N utstanding restitutin rders r judgments 2 affidavits cnfirming gd character/reputatin frm peple nt related t client r each ther Authrizatin fr AOC and DOJ recrd searches Ntice f hrg & service n DA (10d t bject) Frm: AOC-CR-266 (Drug Offense) AOC-CR-268 (Txic Vaprs r Paraphernalia Offense) Cst: $65 N affidavits required Statute des nt specifically require AOC/DOJ recrd searches but frm des Judge may ask prbatin ffice t investigate & verify 2 yrs f gd cnduct Cnvictin itself is canceled in additin t being expunged May nly be granted ONCE Judge may waive the drug educ prgram if extenuating circumstances r n prgram within a reasnable distance Judge may have prbatin ffice investigate t verify cnduct since cnvictin *Individuals cnvicted f felny pssessin f a cntrlled substance prir t 2012 are nly eligible if ffense invlved <1 gram f ccaine. Thse cnvicted f pssessin f a cntrlled substance under 90-95a3 after 12/31/2011 are eligible n matter the quantity. ABBREVIATIONS: CS=Cntrlled Substance, DOC=Date f Cnvictin, DOO=Date f Offense, Hrg=Hearing, Misd=Misdemeanr, NG=Nt Guilty, NVF=Nn-vilent Felny

4 Prepared by Dinne R. Gnder-Stanley, NCCU Schl f Law Updated July 2012 by Daniel Bwes, NC Justice Center Type f Expunctin Gang ffenses GS 15A Criteria Filing Requirements Add l Infrmatin DOO was befre age 18 Was a Class H gang ffense (GS ch. 14, art. 13A) r an enhanced ffense under GS N utstanding restitutin rders/judgments Recrd = n ther cnvictins (ther than traffic misds) Frm: AOC-CR-269 Cst: $0 Gd behavir during cnditinal discharge perid (GS ) r the 2 yrs since cnvictin N ther cnvictins (ther than traffic misds) Petitin is a mtin in the cause (if petitin relates t a cnvictin) N utstanding restitutin rders r judgments 2 affidavits cnfirming gd character/reputatin frm peple nt related t client r each ther Authrizatin fr AOC and DOJ recrd searches Ntice f hrg & service n DA (10d t bject) Applies t a cnvictin OR a dismissal after cnditinal discharge under GS Judge may ask prbatin ffice t investigate & verify gd cnduct during the cnditinal discharge prbatin r the 2 yrs since cnvictin ABBREVIATIONS: CS=Cntrlled Substance, DOC=Date f Cnvictin, DOO=Date f Offense, Hrg=Hearing, Misd=Misdemeanr, NG=Nt Guilty, NVF=Nn-vilent Felny

5 Prepared by Dinne R. Gnder-Stanley, NCCU Schl f Law Updated July 2012 by Daniel Bwes, NC Justice Center Type f Expunctin Criteria Filing Requirements Add l Infrmatin Pardn f Inncence Has a pardn f inncence Filing f pardn s warrant & return is verified by clerk Frm: AOC-CR-265 Cst: $0 DNA recrds after appeal/pardn GS 15A-148 DNA recrds after dismissal GS 15A-146(b1) Cnvictin was dismissed n appeal r pursuant t a pardn f inncence DNA recrds/samples were stred in State Databank (ch. 15A, art. 13) due t the underlying charge Must be entitled t a 15A-146 (dismissal/ng) expunctin fr the underlying charge(s) DNA recrds/samples were stred in State Databank (ch. 15A, art. 13) due t the underlying charge Frm: Nne Cst: $0 Frm: Nne Cst: $0 Applicatin must be served n DA at least 20 days b4 a hearing Clerk must send expunctin rder & certified cpy f the appellate dismissal r pardn t DOJ When cmplete, DOJ must send dcumentatin f expunctin t the defense Expunctin rder will nt expunge recrds in the Databank fr ther ffenses Expunctin rder must have a certified cpy f the dismissal attached When cmplete, DOJ must send dcumentatin f expunctin t the defense Expunctin rder will nt expunge recrds in the Databank fr ther ffenses ABBREVIATIONS: CS=Cntrlled Substance, DOC=Date f Cnvictin, DOO=Date f Offense, Hrg=Hearing, Misd=Misdemeanr, NG=Nt Guilty, NVF=Nn-vilent Felny

6 Prepared by Dinne R. Gnder-Stanley, NCCU Schl f Law Updated July 2012 by Daniel Bwes, NC Justice Center Type f Expunctin Criteria Filing Requirements Add l Infrmatin DNA was btained upn arrest per 15A-266.3A The charge result was: DNA recrds btained upn arrest GS 15A-266.3A Dismissed/Nt Guilty Charges GS 15A-146 Dismissal, r Acquittal, r Cnvictin f lesserincluded misd nt within 15A-266.3, r N charges filed w/in statute f limitiatins, r N active prsecutin & 3yrs have passed since arrest State is nt required t keep the DNA by ther laws r fr unrelated ffenses Applies t any felny, any misd, (r an 18B-302(i) infractin befre 12/1/05) If multiple charges, they: Were reslved in same term f curt, r Have a DOO within the same 12 mnth perid Charge result was NG r dismissal Has n prir expunctins under GS 15A-145, , , , r Recrd = n felny cnvictins Frm: AOC-CR-925M Cst: $0 Give request t prsecuting DA, wh prepares AOC-CR-640 & sends t SBI in 30d Wait fr ntice frm SBI within 30df their receipt If expunctin denied, file mtin in curt Frm: AOC-CR-264 Cst: $0 Until 6/1/2012, recrd destructin shuld be autmatic (withut a request) except fr statute f limitatins r inactive prsecutin situatins. After 6/1/2012, it shuld be autmatic in all situatins. Despite expunctin rder, SBI des nt have t destry physical evidence that was btained frm DNA but relates t anther persn Fr expunctin f multiple charges, they d nt have be cnslidated nr related t the same transactin r ccurrence 1 If client had a prir expunctin under GS 15A-146, s/he will still qualify fr anther expunctin under GS 15A-146 if the prir ne ccurred befre 10/1/05. ABBREVIATIONS: CS=Cntrlled Substance, DOC=Date f Cnvictin, DOO=Date f Offense, Hrg=Hearing, Misd=Misdemeanr, NG=Nt Guilty, NVF=Nn-vilent Felny

7 Prepared by Dinne R. Gnder-Stanley, NCCU Schl f Law Updated July 2012 by Daniel Bwes, NC Justice Center Type f Expunctin Criteria Filing Requirements Add l Infrmatin ID Theft Victim GS 15A-147 Charge resulted frm identifying inf being used withut permissin Charge resulted in dismissal, NC, r cnvictin being set aside Applies t any felny, misd, r infractin Frm: AOC-CR-263 Cst: $0 Cyberbullyingdischarge & dismissal GS (c) Under 21 Drug Offense- Cnditinal discharge & dismissal GS 15A-145.2(a) DOO was befre age 18 Charge was discharged & dismissed after prbatin Criteria fr GS 15A-146 expunctin are met Was nt ver age 21 n DOO Charged ffense was fr: Felny Pss f a CS under GS 90.95(a)(3), r Misd Pss f a Sch I-VI CS, r Pss f Drug Para Offense was discharged & dismissed under GS 90-96(a) r (a1) Recrd = n cnvictins (ther than traffic misds) Frm: AOC-CR-264 Cst: $0 Fllw prcedures fr Dismissed/NG expunctin (GS 15A-146) Frm: AOC-CR-266 Cst: $65 Had gd behavir during the perid f prbatin Has n cnvictins (ther than traffic misds) 2 affidavits cnfirming gd character/reputatin frm peple nt related t client r each ther Authrizatin fr AOC and DOJ recrd searches DMV & Dept f Crrectin must revers administrative actins taken as a result f the expunged charge DMV must prvide a crrected, certified driving recrd at n cst Insurance c. must refund any premiums paid as result f ID theft Judge may have prbatin ffice investigate t verify cnduct during prbatin Under 21 Drug/Txic Was nt ver age 21 n DOO Frm: AOC-CR-266 (nt yet revised fr ABBREVIATIONS: CS=Cntrlled Substance, DOC=Date f Cnvictin, DOO=Date f Offense, Hrg=Hearing, Misd=Misdemeanr, NG=Nt Guilty, NVF=Nn-vilent Felny

8 Prepared by Dinne R. Gnder-Stanley, NCCU Schl f Law Updated July 2012 by Daniel Bwes, NC Justice Center Type f Expunctin Criteria Filing Requirements Add l Infrmatin Vaprs Offense- Charged ffense was fr: 2011 amend) Dismissed, NG r Felny Pss f a CS Cst: $65 Inncent under GS 90.95(a)(3), r N affidavits r recrd GS 15A-145.2(b) r 15A-145.3(b) Misd Pss f a Sch I-VI CS, r searches required A Txic Vaprs Act misd, r Pss f Drug Para Charge result was dismissed, NG, nlle prsequi, r ther adjud f inncence Was nt ver age 21 n DOO Charge was inhaling r Frm: AOC-CR-268 Cst: $0 Judge may have prbatin ffice investigate t verify pssessing a substance cnduct during prbatin prhibited by GS ch 90, art 5A Off. Was discharged & Had gd behavir during the perid f Under 21 Txic dismissed under (a) prbatin Vaprs Offensecnditinal discharge & dismissal r (a1) Recrd = n cnvictins (ther than traffic misds) Has n cnvictins (ther than traffic misds) GS 15A-145.3(a) 2 affidavits cnfirming gd character/reputatin frm peple nt related t client r each ther Authrizatin fr AOC and DOJ recrd searches ABBREVIATIONS: CS=Cntrlled Substance, DOC=Date f Cnvictin, DOO=Date f Offense, Hrg=Hearing, Misd=Misdemeanr, NG=Nt Guilty, NVF=Nn-vilent Felny