North Carolina DUI Checkpoint Laws, and DWI Expungement (Part II)
Expungement Of Non-Violent Felonies, and Non-Violent Misdemeanors
In a previous article, we discussed the requirements for a legal DUI checkpoint, the requirements for requesting that a driver submit to alcohol screening, and the procedural requirements regarding location and method of selection. In this article, we discuss the requirements for expungement of a conviction under North Carolina General State §15A-145.5.
North Carolina General Statutes §15A-145.5., is nearly identical to the type of expungement provided for in §15A-145. For a discussion of the statute in general, read here. [Link to article on §15A-145].
First, we discuss who qualifies for expungement under §15A-145.5: In order to qualify for expungement under §15A-145.5, you must:
- File a Petition, in the county court that you were convicted, for expungement;
- The crime you are seeking to expunge must be a “non-violent misdemeanor” or a “non-violent felony.”
At this point, it is important to discuss what constitutes a “non-violent misdemeanor” or a “non-violent felony.” §15A-145.5(a)(1) – (9) provides us with a list of misdemeanors and felonies that qualify as “violent.”
“Class A through G felony” – In North Carolina, felonies are separated into ten different categories, these categories represented by letters with A representing the most serious offenses. A “Class A Felony” includes most violent crimes such as: (A) arson; (B) armed robbery; (C) murder; (D) Voluntary Manslaughter; (E) Armed Robbery; and (F) rape. “Class E through G felonies” are mid-level crimes, which consist of: (A) Involuntary Manslaughter; (B) Robbery; (C) Violent Assaults; and (D) Habitually Driving While Impaired. As such, a single DWI will meet the “non-violent felony” requirement of §15A-145.
“Class A1 Misdemeanor” – A “Class A1 Misdemeanor “consists of the most dangerous types of misdemeanor, which includes “wobbler offenses” (crimes that can be charged as either a felony or a misdemeanor at the Prosecutor's discretion) such as: (A) Assault on a Female or a Government Employee (B) Assault Inflicting Serious Bodily Injury; (C) Sexual Battery; and (D) Violation of a Restraining order. As such, a DWI will meet the “non-violent misdemeanor” requirement of §15A-145(a1).
Any Crime Requiring “Assault” as an Essential Element of the Offense
Any Stalking, or Sex-Related Offenses
Any Felony Offense Involving Heroin, Methamphetamines, or Possession with Intent to Sell
Any Offenses Involving Starting Fires
Any Offenses, Which Involve Poisoning Somebody
Breaking and Entering
Any Offense Where a Commercial Vehicle Was Used – Assuming that the DWI occurred while driving your personal vehicle, rather than a commercial vehicle, a DWI will not be considered a violent felony or misdemeanor.
Driving While Impaired
Any Offense that Constitutes an Attempt to Commit the Crimes Discussed Above.
After you have confirmed that you are compliant with the conditions precedent to filing a Petition to have your non-violent felony or non-violent felony expunged, it is important that the Petition contain the following:
- The person seeking the expungement must not have any other previous convictions, felony or misdemeanor, except for traffic violations.
- The Petition must be filed at least 10 years after a conviction for a non-violent felony, or at least 5 years after a conviction for a non-violent misdemeanor, or after any probation period, active sentence, or post-release supervision has been served – whichever occurs later.
- 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
- 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.
Once you have met all the requirements set for your Petition, as set forth in §15A-145.5(c), you must then provide a copy of that Petition to the Raleigh County District Attorney. The District Attorney then has thirty (30) days to object to your petition and a hearing date will be set for your expungement. It is essential that you bring competent counsel with you to this hearing, if one occurs, in order to ensure the best outcome.
After the hearing, the Court will decide whether to grant you an expungement. The Court must grant you this expungement if it finds that all other requirements of §15A-145.5 have been satisfied. After your expungement has been granted, your status will be restored to what it was prior to your DWI conviction.
NOTE: It is important to understand that is not correct to say that your non-violent misdemeanor or felony conviction never occurred, the legal system treats you as though the non-violent misdemeanor or felony conviction never occurred. This means that the Court can search for, and be made aware of, your prior conviction.
Finally, if you obtained an expungement pursuant to §15A-145.5, you cannot be found guilty of perjury if you do not acknowledge your expunged non-violent felony or misdemeanor conviction; the lone exception to this is where you are asked about your prior non-violent felony or misdemeanor conviction at a sentencing hearing for a future conviction.
At NC Record Expungement we understand that the holidays are a time to celebrate with friends and family. We also understand that sometimes people do things they later regret. While you should seek to avoid this behavior, we do not believe it should ruin someone's life; people make mistakes, and generally they learn from those mistakes.
If you or a loved one has been convicted of non-violent felony or misdemeanor in North Carolina, it is imperative that you seek counsel immediately, as the process should began early – notwithstanding the fact that you may have to wait 5 to 10 years to file your petition. A skilled attorney can help guide you through actions that will ensure the Court grants your expungement. The attorneys at NC Record Expungement have significant experience representing people, people who made a minor mistake, who are seeking to set their lives back on the right path.