All About: North Carolina General Statutes Chapter 15A-145

All About: North Carolina General Statutes Chapter §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.

In a previous article, we discussed various types of expungements you can obtain, which fell into four broad categories: (1) expungements relating to juvenile delinquency, (2) expungements relating to specific types of crimes, (3) expungements relating to the circumstances involving identity theft and mistaken identity, and (4) expungement for non-conviction arrests and charges unrelated to identity theft or mistaken identity.

This article will discuss the nuances of North Carolina General Statutes Chapter §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. What are the requirements?

Subsection (a) of §15A-145 provides us with information about exactly who qualifies for these types of expungements.

The first requirement is that the person seeking expungement has not previously been convicted of anything other than a misdemeanor traffic violation in any state or federal jurisdiction.

EXAMPLE: Frank, a 16-year-old, was convicted of misdemeanor assault in California before he moved to North Carolina. At 17 Frank pled guilty to misdemeanor possession of alcohol in violation of G.S. 18B-302(b)(i). Frank is ineligible for expungement of his alcohol possession conviction because he had been convicted of a misdemeanor other than a traffic violation in another state (California).

The second requirement is that conviction the individual is seeking to have expunged is either (a) a misdemeanor conviction for something other than a traffic violation, and that conviction occurred before the individual reached the age of 18; or (b) a misdemeanor conviction for possession of alcohol if the conviction occurred before the individual reached the age of 21

Neither of the convictions can be for impaired driving, this automatically removes an individual for eligibility under §15A-145.

EXAMPLE: Frank was convicted of misdemeanor assault in North Carolina and has not had any other misdemeanors other than minor traffic offenses. Frank is eligible for expungement of his assault conviction under §15A-145 because he has not been convicted of any other misdemeanors other than traffic infractions and has been found guilty of a misdemeanor other than a minor traffic infraction (assault).

Provided the first two requirements have been satisfied, an individual can file a petition in the county court where they were convicted for the underlying crime, to request the expunction of his criminal record. This petition cannot be filed earlier than:

  • Two (2) years after the conviction was entered; or

EXAMPLE: Frank was convicted of misdemeanor assault in Mecklenburg County, North Carolina on October 9, 2018, at the age of 16, and has not had any other misdemeanors other than minor traffic offenses. Frank was not placed on probation and is eligible to petition to Mecklenburg County Courthouse to expunge his criminal record on October 9, 2020.

  • Upon the completion of the probationary period, whichever occurs later.

EXAMPLE: Frank was convicted of misdemeanor assault in Mecklenburg County, North Carolina on October 9, 2018, at the age of 16, and has not had any other misdemeanors other than minor traffic offenses. Frank was placed on a 3-year probation. Notwithstanding the fact that Frank would have been eligible to petition to Mecklenburg County Courthouse to expunge his criminal record on October 9, 2020, Frank must wait until October 9, 2021 because his probation was still in effect in 2020.

North Carolina is very specific about what information needs to be contained in the petition for expungement once the required time has passed. All the following must be included in the Petition:

  • An affidavit (a sworn statement) that the individual seeking the expungement has behaved properly in the two years (or the period of probation, if longer), and has not been convicted of any felony or misdemeanor (other than minor traffic violations) in any other state or federal jurisdiction; and

EXAMPLE: Frank was convicted of misdemeanor assault in Mecklenburg County, North Carolina on October 9, 2018, at the age of 16, and has not had any other misdemeanors other than minor traffic offenses. Frank was placed on a 3-year probation. In Frank’s petition, he signs an affidavit that he has not been in trouble (and he’s telling the truth) – Frank has satisfied the first requirement of the Petition for Expungement.

  • Verified affidavits of two (2) people who are not related to the Petitioner, or to each other, by blood or marriage. The affidavits are required to state that they know the character and reputation of the Petitioner within the community, and that the character and reputation are good; and

EXAMPLE: Frank has two teachers at his school, whose office hours he regularly attends. These teachers know Frank and know his reputation in the community is good. Frank’s teachers can fulfill the second requirement of the Petition for Expungement.

NOTE: If the two teachers were married, Frank would have to find another person to sign a verified affidavit regarding his character.

  • A statement that the Petition is a motion in the case that the Petitioner was convicted; and
  • An application authorizing a name-based criminal records check, conducted by the Department of Public Safety as well as a search of the confidential record of expunctions maintained by the Administrative Office of the Courts; and
  • An affidavit by the Petitioner that there are no restitution orders against him, or if there are, that those orders are not outstanding.

EXAMPLE: Frank was convicted of vandalism assault in Mecklenburg County, North Carolina on October 9, 2018, at the age of 16, and has not had any other misdemeanors other than minor traffic offenses. At trial, the Court ordered Frank to pay restitution in the amount of $200.00. If Frank has not paid the $200.00 in restitution, he is unable to obtain an expungement under §15A-145.

Once the Petitioner has met the requirements, including the type of crime, the time they are required to wait, and providing the required portions of the Petition for Expungement, the Petitioner must then serve the Petition on the District Attorney of the Court where the underlying conviction was obtained. At this point, the District Attorney has ten (10) days to object to the Petition and will be informed of the date of the hearing on the Petition for Expungement.

After the hearing, assuming the Court finds that the Petitioner has behaved properly and avoided a conviction of a felony or misdemeanor (other than minor traffic offenses) and that all other requirements have been satisfied, the Court shall (in the legal world, this is mandatory, the Court does not have discretion) order that the Petitioner be restored to the status he occupied before the expunged event took place. In other words, the conviction never happened.

NOTE: While the law treats the successful Petitioner as though the conviction never occurred, this does not mean that there is no record of the expungement itself. As noted above, one of the requirements for the expungement is to authorize the Court to search into previous expungements; so, it is incorrect to say that the conviction disappears – the law simply treats you as though you were never convicted.

To that effect, someone who has obtained an expungement under §15A-145 cannot be found guilty of perjury or giving a false statement by failing to acknowledge the existence of the expunged crime at any time, except for sentencing hearing in a subsequent conviction.

EXAMPLE: Frank was convicted of misdemeanor assault in Mecklenburg County, North Carolina on October 9, 2018, at the age of 16, and has not had any other misdemeanors other than minor traffic offenses. Frank was not placed on probation. On October 9, 2020 Frank filed a Petition to have his conviction expunged and served it on the District Attorney of Mecklenburg County, North Carolina. 10 days later, the District Attorney has not objected to the expungement, and the Court conducted a hearing on the matter. The Court found that Frank had been an upstanding citizen and granted the expungement.

On November 10, 2021 Frank was charged with an assault; his defense was self-defense. The Prosecutor questions Frank about whether he was convicted of misdemeanor assault in 2018. Frank said that he had not, and the prosecutor sought to bring charges against Frank for perjury. Since the misdemeanor assault was expunged, and Frank is not in a sentencing hearing for a subsequent conviction, Frank has not committed perjury.

It is common knowledge that part of being a child is making mistakes. Some children make bigger mistakes than others, but in many instances that does not justify having that mistake follow them around for the rest of their lives. The simple existence of a prior conviction can have a profound impact on an individual’s life, and that is precisely why expungement exists. The Attorneys at NC Record Expungement understand how important it is to move on with your life, and have ample experience representing individuals seeking to enter the next chapter with a clean slate. Contact us today for an expert consultation.