PART II: The Options Available in North Carolina
In the previous article, “North Carolina General Statutes 15A-146, Arrests Not Resulting in Conviction and You PART I: The Impact of an Arrest on Your Record”, we briefly discussed: (1) the general rules of North Carolina General Statutes §15A-146; (2) the detrimental effect an arrest or criminal charge, even one not resulting in conviction, can have on your quality of life if it remains on your criminal record; and (3) the general hesitation of Courts to mandate that records be expunged, even where the underlying offense did not result in a conviction.
In this article, we will address what options you have under North Carolina law. This article will briefly address: (1) An overview of the expungement statutes in North Carolina; (2) the procedures for expunging charges, and arrests, that did not result in a conviction; and (3) administrative expungements available in North Carolina.
- An Overview of Expungement Statutes in North Carolina
There are twelve circumstances in which North Carolina will allow an individual to obtain an expungement of their criminal record (For certain crimes that do not fall under any of these statutes, North Carolina law provides a mechanism referred to as a Certificate of Relief, which has as its goal favorable treatment for individuals at the hands of employers, landlords, or decision-making bodies with the power to impose non-mandatory, collateral consequences based on an individual’s past conduct):
- there are 6 types of expungement available relating to juvenile delinquency, or juvenile crimes.
- §15A-145 – misdemeanors committed before age eighteen, misdemeanor alcohol possession under age twenty-one;
- §15A-145.1 – gang offenses committed before age eighteen;
- §15A-145.2 – drug offenses committed before age twenty-two;
- §15A-145.3 – toxic vapor offenses committed before age twenty-two;
- §15A-145.4 – non-violent felonies committed before age eighteen; and.
- §7B-3200 – juveniles alleged or adjudicated delinquent or undisciplined.
(2) there are 2 types of expungement available for specific types of crimes
- §15A-145.5 – nonviolent misdemeanors or felonies committed at any age; and
- §15A-146 – prostitution offenses.
(3) there are 3 types of expungement available to specific circumstances involving identity theft and mistaken identity; and
(4) there is one type of expungement available for non-conviction arrests, and charges, that do not satisfy the requirements for the identity theft or mistaken identity expungements mentioned in (3).
- § 15A-146
The process of obtaining an expungement is many aspects to it and is incredibly complex. If you are seeking to obtain an expungement, it is critical that you contact the attorneys at NC Record Expungement today. It is important to not only identify which expungement statute is applicable to the individual’s circumstances, but also whether the procedural requirements of that statute have been satisfied.
There are a plethora of factors that must be considered in seeking an expungement, including: (1) whether the judge has discretion to deny a request for expungement; (2) whether this a requisite waiting period that an individual must satisfy prior to requesting an expungement; (3) whether there are any filing fees associated with seeking an expungement; and (4) whether and when a previous conviction or expungement will bar an individual from obtaining the present expungement.
The importance of understanding precisely what expungement statute, and the accompanying procedural requirements, apply to a given individual cannot be understated. The attorneys at NC Record Expungement have extensive experience in this matter and can assist you or a loved one in obtaining an expungement in a straightforward and pain-free manner.
II. The Procedures for Expunging Charges, and Arrests, That Did Not Result in a Conviction
Obtaining an Expungement pursuant to section 146 enables qualified individuals to remove all traces of criminal charges that did not result in a conviction, or were ultimately dismissed, from their public records; ensuring that those items will not appear on a criminal background check conducted by a potential employer, landlord, or lender. An expungement under section 146 presents several benefits that are not available under a majority of the expungement statutes for prior convictions:
- First and foremost, a section 146 expungement is non-discretionary. A judge does not have the authority to deny an individual a section 146 expungement if they have satisfied all the requirements; nothing in section 146 gives a judge the authority to deny the expungement on the basis of subjective material, which often includes the individual’s moral character;
- Second, the $175 fee for filing is only applicable where the individual’s non-conviction claim was the result of a deferred prosecution agreement or where there was a conditional discharge of the charges against the individual. The practical effect of this is that individuals whose arrests did not result in a conviction (except for reasons mentioned above) will not be required to pay the fee, even if they do not otherwise qualify for the indigent fee waiver; and
- Finally, beginning December 1, 2017, section 146 does not bar individuals who have received a prior section 146 expungement from obtaining a subsequent expungement under section 146. Prior to the passage of Senate Bill 445, an individual could only obtain multiple section 146 expungements “if the offenses occurred within the same 12-month period of time or if the charges [were] dismissed or findings [were] made at the same term of court.” Thus, before 2017, an individual could not obtain an expungement on multiple non-conviction criminal charges if they were brought more than 1 year apart.
While section 146 is unquestionably a step in the right direction, it is also imposes certain restrictions on individuals seeking non-conviction charges expunged. Examples include:
- An individual who has previously been convicted of any felony is barred from seeking an expungement under section 146, even if the charges sought to be expunged did not result in a conviction;
- Like most expungements in North Carolina, an individual must affirmative request that the Court grant them an expungement on a non-conviction charge; it does not occur automatically.
Notwithstanding the restrictions detailed above, an expungement under section 146 is still an individual’s best bet if they are seeking to remove this damaging, non-conviction, information from their criminal backgrounds.
- Administrative Expungements Available in North Carolina
As should be readily apparent at this point, the process of obtaining an expungement in North Carolina is a convoluted process that begins when the individual seeking the expungement files a petition with the Court; this process requires that the county court that handled the offense or charge they are seeking to expunge be involved in the process. Further, the petition for an expungement requires the participation of the Administrative Office of the Courts (“AOC”) as well as the State Bureau of Investigation (“SBI).
The first step for the individual seeking an expungement is to complete an AOC petition that is specifically designated for the type of expungement that the individual is requesting.
EXAMPLE: If Peter is seeking an expungement under section 146, discussed above, he must use the same form utilized under section 145(a) (expunction of misdemeanors committed by those under eighteen), and inadvertently checking the box corresponding with the wrong statutory provision would result in denial of the petition). Next, a judge from the Court where the individual’s non-conviction matter was heard must sign that individual’s petition and deliver it to the AOC and SBI to be processed. Finally, after the AOC and SBI have processed the individual’s petition to have their non-conviction record expunged, the petition must then be returned to the local judge who will then officially enter the order of expungement.
At this point, you might be scratching your head wondering exactly how to navigate the myriad of technicalities that present themselves when an individual is seeking to obtain an expungement, this is normal. For matters such as these, it is highly recommended that you retain the services of an experienced attorney to help guide you through the maze that is the legal process of obtaining an expungement. The attorneys at NC Record Expungement have successfully navigated this obstacle course numerous times and can provide you expert advice and assistance.
If you or a loved one is still feeling the effects of a previous arrest or conviction, contact us today for a consultation. With our experience, you will return to living a normal life in a no time.