Expunction Guide: Types, Requirements, and Impact of 2009 Legislation

Administration of Justice Bulletin 2009/10 december 2009 Expunction Guide: Types, Requirements, and Impact of 2009 Legislation John Rubin Overview 2 Expunctions on Basis of Age 3 Certain Misdemeanor Convictions for Offenses Committed before Age 18 and 21 Older Misdemeanor Larceny Convictions Discharge and Dismissal or Conviction of Certain Gang Offenses Discharge and Dismissal of Cyberbullying Offense Expunctions of Dismissals and Similar Dispositions 4 Dismissal or Finding of Not Guilty of Misdemeanors, Felonies, and Certain Infractions Charges Resulting from Identity Theft DNA Records After Pardon of Innocence Expunctions of Drug-Related Offenses 7 Discharge and Dismissal of Certain Drug-Related Offenses Finding of Not Guilty or Dismissal of Certain Drug-Related Offenses Conviction of Certain Drug-Related Offenses John Rubin is a School of Government faculty member specializing in criminal law and procedure. Thanks are due to School of Government faculty member James Markham and Administrative Office of the Courts associate counsel Troy Page for reviewing a draft of this bulletin. The conclusions remain those of the author. For a complete summary of 2009 criminal law and procedure legislation, see John Rubin, 2009 Legislation Affecting Criminal Law and Procedure, Administration of Justice Bulletin 2009/09 (Dec. 2009), www.sog.unc.edu/pubs/electronicversions/pdfs/aojb0909.pdf. 1

2 Administration of Justice Bulletin Overview Expunction is a procedure by which a person may expunge, or erase, the record of prior court proceedings against him or her. This bulletin describes the different types of expunctions available in North Carolina for adult criminal court proceedings that is, proceedings in which a person is prosecuted in criminal court as an adult. North Carolina law has permitted such expunctions in one form or another for many years. This bulletin is being issued now because of the General Assembly s passage during its 2009 legislative session of S.L. 2009-577 (H 1329) (referred to as the 2009 legislation or the act ), which consolidates most of North Carolina s existing expunction provisions in one part of the General Statutes (hereinafter G.S.). The 2009 legislation is effective for petitions for expunction filed on or after December 1, 2009, and applies to expunctions involving proceedings in adult criminal court only; expunctions of juvenile proceedings continue to be governed by G.S. Chapter 7B (G.S. 7B-3200 through 7B-3202). The 2009 changes are largely organizational. The legislation moves the substance of the expunction procedures and requirements from the statutes governing the particular offenses at issue to new statutes in G.S. Chapter 15A, the chapter on criminal procedure. The legislation was not intended to be a rewrite of the expunction provisions. The new statutes retain most of the previous language, with each type of expunction in its own statute with its own requirements and procedures. Areas that were gray in the previous expunction provisions remain gray in large part in the new statutes. A close comparison of the old and new provisions reveals some substantive changes, however. The legislation clarifies some of the circumstances in which preexisting types of expunction may be obtained and adds limited expunction opportunities. The legislation also raises some new questions. 1 The discussion below groups the expunctions of adult matters available under North Carolina law into three main categories: convictions and other matters based on the age of the person at the time of the offense, dismissals and related dispositions, and certain drug offenses (some with age requirements). For each of these categories, the tables below set out the different types of expunctions, their basic requirements, and the applicable statutes and Administrative Office of the Courts (AOC) forms, which are available online at www.nccourts.org/forms/formsearch.asp. The discussion related to each table describes the changes made by the 2009 legislation and some open issues. In places, the statutes describe the expunction requirements inconsistently or incompletely. The approach taken in this bulletin is to list all of the requirements stated in the statutes unless they obviously conflict. For example, G.S. 15A-145 requires, as a condition of petitioning for an expunction of a conviction of a misdemeanor offense committed before age 18, that the person have no prior convictions other than for a traffic violation. The statute later states that a court may grant the expunction petition if it finds that the person has no convictions other than for a traffic violation for two years after the conviction to be expunged; the statute does not explicitly require the court to find no prior convictions. Both requirements are listed below as necessary for an expunction because, although not clearly made a precondition for all of the steps for 1. The General Assembly passed a second act on expunctions, S.L. 2009-510 (S 262), which primarily addresses the giving of notice of expunctions to entities that have records to be expunged. That act does not become effective until October 1, 2010, and is likely to be revised before then. It is therefore not summarized in this bulletin.

Expunction Guide: Types, Requirements, and Impact of 2009 Legislation 3 Table 1. Certain Misdemeanor Convictions for Offenses Committed before Age 18 and 21 Conviction of ǞǞ misdemeanor other than traffic violation committed before age 18; or ǞǞ misdemeanor possession of alcohol under G.S. 18B- 302(b)(1) committed before age 21 Offense occurred before age 18 or 21, depending on offense; a and Person has no prior conviction other than for traffic violation; and Petition may not be filed until completion of any probation or two years after conviction, whichever is later; and Person was of good behavior and had no convictions other than traffic violation for two years after conviction; and Person has no outstanding restitution orders or judgments representing restitution G.S. 15A-145(a), (b) AOC-CR-264 (Dec. 2009) a For expunction of multiple offenses, see Opinion Letter by North Carolina Attorney General to James J. Coman, SBI Director (Oct. 13, 1995) (indicating that a person may obtain an expunction of multiple offenses under G.S. 15A-145 if they arose out of the same transaction or occurrence or were consolidated for trial or judgment), www.ncdoj.gov/about-doj/legal-services/legal-opinions/opinions/criminal-law-and-procedure;-expungement.aspx. obtaining an expunction, they do not appear to conflict. When the requirements for expunction more directly conflict, the discrepancy is noted. Others may reach different conclusions about how to reconcile the uncertainties in the expunction statutes. Expunctions on Basis of Age Certain Misdemeanor Convictions for Offenses Committed before Age 18 and 21 G.S. 15A-145(a) and (b) authorize expunctions of misdemeanor convictions based on the age of the person at the time of the offense (see Table 1). The 2009 legislation revises G.S. 15A-145(a) to clarify that the offense to be expunged need only have occurred before the indicated age, in most instances before the defendant turned 18 years old. Previously, the statute stated generally that the person was eligible for an expunction if he or she had not yet attained the indicated age, leaving it unclear whether the offense date, charging date, conviction date, or some other date was controlling. Older Misdemeanor Larceny Convictions G.S. 15A-145(d1) authorizes expunction of older misdemeanor larceny convictions (see Table 2). This type of expunction is new, added by the 2009 legislation, but the new statute is inconsistent about the number of years that must have elapsed and the permissible extent of the person s prior record. One part of the new subsection requires that the person wait 15 years following the misdemeanor larceny conviction and have no misdemeanor convictions (other than for a traffic violation) during that 15-year period and no prior felony convictions at any time; another part requires that the person wait 10 years and have no prior felony or misdemeanor convictions

4 Administration of Justice Bulletin Table 2. Older Misdemeanor Larceny Convictions Conviction of misdemeanor larceny under G.S. 14-72(a) more than 10 or 15 years prior to filing of petition Person was of good behavior and has had no convictions for period specified by G.S. 15A-145(d1); and Person has no outstanding restitution orders or judgments representing restitution G.S. 15A-145(d1) AOC-CR-267 (Dec. 2009) (other than for a traffic violation) during those 10 years. The AOC s form petition and order for expunction reflects this tension, requiring in one portion that the petitioner attest that he or she meets the 15-year requirement and in another portion that the court find that the petitioner meets the 10-year requirement. Discharge and Dismissal or Conviction of Certain Gang Offenses G.S. 14-50.29 and 14-15.30 have allowed the expunction of certain gang offenses (see Table 3). The act does not make any new gang matters subject to expunction; instead, it moves the key expunction procedures from the above statutes to new G.S. 15A-145.1. The gang statutes remain relevant, however, because they contain the discharge and dismissal requirements for the offenses, which are a precondition for expunctions of those proceedings. The one substantive change made by the act is to clarify that the offense (rather than some other event) need only have occurred before the person turned 18. There is not an AOC form for this type of expunction. Discharge and Dismissal of Cyberbullying Offense G.S. 14-458.1(c) authorizes expunction of a cyberbullying offense (see Table 4). This type of expunction is new, added as part of S.L. 2009-551 (H 1261), which creates the offense of cyberbullying and enacts the discharge, dismissal, and expunction provisions. The act applies to offenses committed on or after December 1, 2009. There is not an AOC form for this type of expunction. Expunctions of Dismissals and Similar Dispositions Dismissal or Finding of Not Guilty of Misdemeanors, Felonies, and Certain Infractions G.S. 15A-146(a) and (a1) allow expunction of dismissals and findings of not guilty (see Table 5). The 2009 legislation revises G.S. 15A-146(a) by changing the statutory references for prior expunctions that bar this type of expunction. Previously, a person could not obtain this type of expunction if he or she had received an expunction under G.S. 15A-145, 15A-146, or 90-96. The revised provision continues to bar an expunction if the person received an expunction under G.S. 15A-145 or 15A-146, but it deletes the reference to G.S. 90-96 on expunction of drug-related matters and refers only to the new expunction statutes on drug-related matters (G.S. 15A-145.2 and 15A-145.3), discussed further below. Consequently, a prior expunction under G.S. 90-96 may not bar an expunction under G.S. 15A-146(a). The act also amends G.S. 15A-146(a1) on expunction of dismissals and findings of not guilty or responsible of multiple charges. (The 2009 legislation addresses G.S. 15A-146(a1) in two

Expunction Guide: Types, Requirements, and Impact of 2009 Legislation 5 Table 3. Discharge and Dismissal or Conviction of Certain Gang Offenses Discharge and dismissal pursuant to G.S. 14-50.29 of ǞǞ any Class H felony under G.S. Ch. 14, Art. 13A; or ǞǞ an enhanced offense under G.S. 14-50.22 discharge and dismissal, including ǞǞ offense occurred before person turned age 18; and ǞǞ no prior convictions other than traffic violation; and ǞǞ fulfillment of terms of probation; G.S. 15A-145.1, 14-50.29, 14-50.30 and expunction, including ǞǞ petition may not be filed until completion of discharge and dismissal, for which G.S. 14-50.29 sets a period of supervised probation of at least one year; and ǞǞ person must have been of good behavior and had no convictions other than traffic violation during period of probation for offense in question; and ǞǞ person has no outstanding restitution orders or judgments representing restitution Conviction of ǞǞ any Class H felony under G.S. Ch. 14, Art. 13A; or ǞǞ an enhanced offense under G.S. 14-50.22 Offense occurred before person turned 18; and No prior convictions other than traffic violation; and Petition may not be filed earlier than completion of probation or two years after conviction, whichever is later; and Good behavior and no convictions other than traffic violation for two years after conviction; and No outstanding restitution orders or judgments representing restitution G.S. 15A-145.1, 14-50.30 Table 4. Discharge and Dismissal of Cyberbullying Offense Discharge and dismissal pursuant to G.S. 14-458.1(c) of cyberbullying offense discharge and dismissal, including ǞǞ offense must have occurred before age 18; and ǞǞ fulfillment of terms of probation; G.S. 14-458.1(c), 15A-146 and expunction under G.S. 15A-146

6 Administration of Justice Bulletin Table 5. Dismissal or Finding of Not Guilty of Misdemeanors, Felonies, and Certain Infractions Dismissal or finding of not guilty or not responsible of ǞǞ infraction under G.S. 18B-302(i) before Dec. 1, 1999; or ǞǞ misdemeanor or felony No prior felony conviction; and No prior expunction under G.S. 15A-145, 15A-145.1, 15A-145.2, 15A 145.3, or 15A-146 G.S. 15A-146(a) AOC-CR-264 (Dec. 2009) Dismissal or finding of not guilty or not responsible of multiple charges that ǞǞ occurred during 12-month period; or ǞǞ were disposed of at the same term of court, regardless of offense date No prior felony conviction; and No prior expunction under G.S. 15A-145, 15A-145.1, 15A-145.2, or 15A-145.3; and No prior expunction under G.S. 15A-146(a1) except as indicated therein G.S. 15A-146(a1) AOC-CR-264 (Dec. 2009) separate places, section 3.1 and section 9 of the act; the discussion here attempts to integrate those changes.) First, as with G.S. 15A-146(a), the act revises the prior expunctions that disqualify a person from receiving an expunction, deleting any reference to G.S. 90-96. Second, the act exempts from the prior-expunction bar an expunction under G.S. 15A-146(a1) if (1) it occurred prior to October 1, 2005, and (2) it was for an offense that occurred within the same 12-month period or was dismissed at the same term of court as the offenses that are the subject of the current expunction petition. Thus, this provision allows a person who obtained an expunction before October 1, 2005, to go back and obtain an expunction of additional charges during the surrounding 12-month period or of charges disposed of during the same term of court. 2 Charges Resulting from Identity Theft This expunction, governed by G.S. 15A-147, was not changed by the act (see Table 6). 2. The discussion in the text attempts to describe the impact of the legislation on expunction of offenses that occurred before October 1, 2005, but the statutory references used in G.S. 15A-146(a1) make the matter unclear. G.S. 15A-146(a1) bars a second expunction under that subsection, meaning G.S. 15A-146(a1), except if the expunction occurred before October 1, 2005. The difficulty with this language is that G.S. 15A-146(a1) did not take effect until October 1, 2005, so it would be impossible for a person to have obtained an expunction under that subsection before then. It could be argued that the General Assembly intended to allow an expunction under G.S. 15A-146(a1) even though the person had obtained an expunction under G.S. 15A-146(a) for a single offense before October 1, 2005. Such an interpretation suggests more generally that a person cannot obtain an expunction under G.S. 15A-146(a1) if he or she received a previous expunction under G.S. 15A-146(a). The AOC form reflects this position. See AOC- CR-264 (Dec. 2009) (stating as requirement for expunction under G.S. 15A-146(a) or (a1) that person not have received prior expunction under G.S. 15A-146 except for certain expunctions before Oct. 1, 2005). Although this interpretation makes practical sense, it does not reflect the literal terms of G.S. 15A- 146(a1), which lists expunctions under that subsection as a bar and not expunctions under G.S. 15A-146 or 15A-146(a).

Expunction Guide: Types, Requirements, and Impact of 2009 Legislation 7 Table 6. Charges Resulting from Identity Theft Finding of not guilty, dismissal, or setting aside of conviction of charge (infraction, misdemeanor, or felony) resulting from another person using identifying information of named person without person s permission None G.S. 15A-147 AOC-CR-263 (Feb. 2006) Table 7. DNA Records DNA records or samples following final order by appellate court reversing and dismissing conviction of offense for which DNA analysis was done None G.S. 15A-148 Table 8. After Pardon of Innocence Conviction of crime for which person has received pardon of innocence None G.S. 15A-149 AOC-CR-265 (Oct. 2005) DNA Records This expunction, governed by G.S. 15A-148, was not changed by the act (see Table 7). There is not an AOC form for this type of expunction. After Pardon of Innocence This expunction, governed by G.S. 15A-149, was not changed by the act (see Table 8). Expunctions of Drug-Related Offenses Discharge and Dismissal of Certain Drug-Related Offenses This type of drug-related expunction involves offenses that have been discharged and dismissed within the meaning of the applicable statutes (see Table 9). G.S. 90-96(a) and (a1) address controlled substance and drug paraphernalia offenses (although drug paraphernalia offenses themselves are addressed in a separate article of G.S. Chapter 90), and G.S. 90-113.4(a) and (a1) address toxic vapor offenses. The discharge, dismissal, and expunction provisions for all of these offenses are discussed together because the requirements are essentially the same. The requirements differ, however, depending on whether the person receives a discharge and dismissal under subsection (a) of G.S. 90-96 or 90-113.14 or under subsection (a1) of those statutes.

8 Administration of Justice Bulletin Table 9. Discharge and Dismissal of Certain Drug-Related Offenses Discharge and dismissal pursuant to G.S. 90-96(a) or 90-113.14(a) of ǞǞ misdemeanor possession of a controlled substance in Schedules II through VI of G.S. Ch. 90, Art. 5; or ǞǞ felony possession of less than 1 gram of cocaine under G.S. 90-95(a)(3); or ǞǞ misdemeanor possession of drug paraphernalia under G.S. 90-113.22; or ǞǞ inhaling or possessing toxic vapor substance in violation of G.S. Ch. 90, Art. 5A discharge and dismissal, including ǞǞ no prior convictions for substances in Articles 5 or 5A or paraphernalia in Article 5B of G.S. Ch. 90; and ǞǞ no prior discharge and dismissal under G.S. 90-96 or 90-113.14; and ǞǞ fulfillment of terms of probation; and expunction, including ǞǞ offense occurred when person was age 21 or younger; and ǞǞ good behavior and no conviction other than for traffic violation during period of probation for offense in question; but ǞǞ unclear whether person must be entirely conviction-free (other than for traffic violation) prior to current offense a For controlled substance and drug paraphernalia offenses, G.S. 15A-145.2(a) and 90 96(a), (b) For toxic vapor offenses, G.S. 15A-145.3(a) and 90-113.4(a), (b) AOC-CR-266 (Dec. 2009) (for controlled substance and drug paraphernalia offenses) Discharge and dismissal pursuant to G.S. 90-96(a1) or 90-113.14(a1) of ǞǞ any offense under G.S. 90-95(a)(3); or ǞǞ misdemeanor possession of drug paraphernalia under G.S. 90-113.22; or ǞǞ any offense in G.S. 90-113.10 or 90-113.11 discharge and dismissal, including ǞǞ no prior conviction or discharge and dismissal for offense committed within seven years of current offense in violation of G.S. 90-95(a(1), 90-95(a)(2), 90-95(a)(3), 90-113.10, 90-113.11, 90-113.12, or 90-113.22; and ǞǞ fulfillment of terms of probation, which must be for a minimum period of one year and include completion of drug education school within first 150 days of probation unless waived by court; and expunction, including ǞǞ offense occurred when person was age 21 or younger; and ǞǞ good behavior and no conviction other than for traffic violation during period of probation for offense in question; but ǞǞ unclear whether person must be entirely conviction-free (other than for traffic violation) prior to current offense b For controlled substance and drug paraphernalia offenses, G.S. 15A-145.2(a) and 90 96(a1), (b) For toxic vapor offenses, G.S. 15A-145.3(a) and 90 113.4(a1), (b) AOC-CR-266 (Dec. 2009) (for controlled substance and drug paraphernalia offenses) a G.S. 15A-145.2(a)(3) and 15A-145.3(a)(3) and former G.S. 90-96(b)(3) and 90-113.4(b)(3) state that an expunction petition must be accompanied by an affidavit indicating that the petitioner has never been convicted other than for a traffic violation. The AOC form states generally that the petition must be accompanied by the required affidavits. See AOC-CR-266 (Dec. 2009). The above statutes also provide, however, that if the person is free of certain drug-related convictions, he or she may obtain a discharge, dismissal, and expunction. It is difficult to reconcile the two provisions. b See note a, above.

Expunction Guide: Types, Requirements, and Impact of 2009 Legislation 9 Table 10. Finding of Not Guilty or Dismissal of Certain Drug-Related Offenses Dismissal or finding of not guilty of ǞǞ misdemeanor possession of a controlled substance in Schedules II through VI of G.S. Ch. 90, Art. 5; or ǞǞ felony possession of less than 1 gram of cocaine under G.S. 90-95(a)(3); or ǞǞ misdemeanor under G.S. Ch. 90, Art. 5A (toxic vapors); or ǞǞ possession of drug paraphernalia under G.S. 90-113.22 Offense allegedly occurred when person was age 21 or younger For controlled substance offenses, G.S. 15A-145.2(b) and 90-96(d) For toxic vapor and drug paraphernalia offenses, G.S. 15A-145.3(b) and 90-113.14(d) AOC-CR-266 (Dec. 2009) (for controlled substance offenses) The 2009 legislation does not make any new matters in subsection (a) of G.S. 90-96 and 90-113.14 subject to expunction; instead, it moves the key expunction provisions from G.S. Chapter 90 to new G.S. 15A-145.2 and 15A-145.3. The drug statutes remain relevant, however, because they contain the discharge and dismissal requirements for the offenses, which are a precondition for expunction. The previous statutes were not clear on whether a person could receive a discharge, dismissal, and expunction under subsection (a1) of G.S. 90-96 and 90-113.4. They referred to discharge and dismissal but did not specify any procedure for that disposition. The 2009 legislation amends the indicated statutes to authorize discharge, dismissal, and expunction explicitly. These changes expand the drug-related offenses subject to expunction in two respects. First, G.S. 90-96(a1) permits expunction of any possession offense under G.S. 90-95(a)(3) rather than just misdemeanor possession of a controlled substance under Schedules II through VI and felony possession of less than one gram of cocaine, as provided in G.S. 90-96(a). Second, G.S. 90-96(a1) and 90-113.4(a1) are broader than G.S. 90-96(a) and 90-113.4(a) in that they allow discharge and dismissal if the defendant has not committed an offense in violation of the indicated drug statutes within seven years of the current offense; under G.S. 90-96(a) and 90-113.4(a), the defendant may not have any prior drug convictions listed in that subsection or a prior discharge and dismissal under G.S. 90-96 or 90-113.14. (Under both subsections (a) and (a1) of G.S. 90-96 and 90-113.4, however, it remains unclear whether a person may obtain an expunction of a discharge and dismissal if the person has any prior convictions. See Table 9, notes a, b.) Finding of Not Guilty or Dismissal of Certain Drug-Related Offenses This type of drug-related expunction involves findings of not guilty or dismissals (see Table 10). G.S. 90-96(d) addresses controlled substances offenses, and G.S. 90-113.4(d) addresses toxic vapor and drug paraphernalia offenses (although drug paraphernalia offenses themselves are addressed in a separate article of G.S. Chapter 90). The expunction provisions for these offenses are discussed together because the requirements are essentially the same. The act does not make any new matters in these statutes subject to expunction; instead, it moves the key expunction provisions from G.S. Chapter 90 to new G.S. 15A-145.2 and 15A 145.3. The act revises the expunction requirements, however, to clarify that the alleged

10 Administration of Justice Bulletin offense (rather than some other event) need only have occurred when the person was 21 or younger. Conviction of Certain Drug-Related Offenses This last type of drug-related expunction addresses convictions (see Table 11). The expunction procedures for offenses covered by G.S. 90-96(e) and 90-113.4(e) are discussed together because the requirements are essentially the same, with one difference. Under G.S. 90-96(e), which addresses expunctions of controlled substance and drug paraphernalia offenses, the person must not have any prior controlled substance or drug paraphernalia convictions. Under G.S. 90-113.14(e), which addresses expunction of toxic vapor offenses, the person must not have any prior controlled substance, drug paraphernalia, or toxic vapor convictions. (It remains unclear, however, whether a person may obtain an expunction of the indicated convictions if the person has any prior convictions. See Table 11, notes b, d.) The act does not make any new matters in these statutes subject to expunction; instead, it moves the key expunction provisions from G.S. Chapter 90 to new G.S. 15A-145.2(c) and 15A- 145.3(c). In transferring the language, however, the act makes one potentially important change. The change is the same in both subsections; for ease of discussion, G.S. 15A-145.2(c) is used to explain the impact of the change. Former G.S. 90-96(e) stated that a person could obtain one expunction under this section. The term section is generally construed to refer to the statute number, in this instance G.S. 90-96. New G.S. 15A-145.2(c) states that a person may obtain one expunction under this subsection. The term subsection is generally construed to refer to the lettered provision of a statute, in this instance G.S. 15A-145.2(c). The effect is potentially twofold. One, an expunction under other subsections of new G.S. 15A-145.2 may not preclude an expunction under G.S. 15A-145.2(c). (An expunction under any subsection of G.S. 15A-145.2 would bar an expunction under G.S. 15A-146, however, as discussed above under Expunction of Dismissals and Similar Dispositions. ) Two, a prior expunction under G.S. 90-96(e) is not listed as a bar to an expunction under G.S. 15A-145.2(c).

Expunction Guide: Types, Requirements, and Impact of 2009 Legislation 11 Table 11. Conviction of Certain Drug-Related Offenses Conviction of ǞǞ misdemeanor possession of a controlled substance in Schedules II through VI of G.S. Ch. 90, Art. 5; or ǞǞ felony possession of less than 1 gram of cocaine under 90-95(a)(3); or ǞǞ possessing drug paraphernalia under G.S. 90-113.22 No prior convictions for substances in Article 5 or paraphernalia in Art. 5B of G.S. Ch. 90; and Person must not have received prior expunction under G.S. 15A-145.2(c); and Petition may not be filed for at least 12 months after conviction; and Person completed drug education program unless waived by court; and Person has been on good behavior since conviction; and Person must have committed offense when 21 or younger; a but Unclear whether person must have no prior convictions (other than for traffic violation) b G.S. 15A-145.2(c), 90-96(e) AOC-CR-266 (Dec. 2009) (for controlled substance and drug paraphernalia offenses) Conviction of misdemeanor under G.S. Ch. 90, Art. 5A (toxic vapors) No prior convictions for substances in Article 5 or 5A or paraphernalia in Art. 5B of G.S. Ch. 90; and Person must not have received prior expunction under G.S. 15A-145.3(c); and Petition may not be filed for at least 12 months after conviction; and Person completed drug education program unless waived by court; and Person has been on good behavior since conviction; and Person must have committed offense when 21 or younger; c but Unclear whether person must have no prior convictions (other than for traffic violation) d G.S. 15A-145.3(c), 90 113.14(e) a See In re Spencer, 140 N.C. App. 776 (2000) (interpreting G.S. 90-96(e) as requiring person to have been 21 or younger when he or she committed the offense to be expunged). b G.S. 15A-145.2(c) and former G.S. 90-96(e) state in one place that the person must have no prior convictions. The AOC form includes this condition as a requirement for expunction. See AOC-CR-266 (Dec. 2009). The statutes also state, however, that a person is eligible for an expunction if he or she does not have certain drug-related convictions. It is difficult to reconcile the conflicting language. c Under the reasoning of In re Spencer, described in note a, above, it is likely that the indicated age requirement would apply to expunctions under G.S. 90-113.14(e) in light of the similarities between G.S. 90-113.14(e) (now a part of G.S. 15A-145.3(c)) and G.S. 90-96(e) (now a part of G.S. 15A-145.2(c)). d G.S. 15A-145.3(c) and former G.S. 90-113.14(e) contain the same inconsistency described in note b, above. This bulletin is published and posted online by the School of Government to address issues of interest to government officials. This publication is for educational and informational use and may be used for those purposes without permission. Use of this publication for commercial purposes or without acknowledgment of its source is prohibited. To browse a complete catalog of School of Government publications, please visit the School s website at www.sog.unc.edu or contact the Publications Division, School of Government, CB# 3330 Knapp-Sanders Building, UNC Chapel Hill, Chapel Hill, NC 27599-3330; e-mail sales@sog.unc.edu; telephone 919.966.4119; or fax 919.962.2707.