DO YOU QUALIFY FOR AN EXPUNGEMENT OR FOR ANY OTHER RELIEF FROM A NORTH CAROLINA CRIMINAL CHARGE OR CONVICTION?
A. First, what is an Expungement?
An expungement erases all evidence of a criminal charge or judgment, as if it never occurred, except for purposes of federal immigration law. For example, a person entitled to an Expungement may omit any reference to the charges or convictions to potential employers and others, with some exceptions, such as one should always admit expunged charges and convictions to the federal government if the concern is one’s immigration status.
Once an expungement is granted, a records check for one`s expunged, prior arrests and/or convictions should not disclose the expunged entries. Additionally, no person as to whom such an order has been entered shall be held guilty of perjury or guilty of otherwise giving a false statement or response to any inquiry made for any purpose by reason of his failure to recite or acknowledge any expunged entries concerning apprehension or trial, except in certain circumstances, such as in the federal immigration context in which you never want to be suspected of giving a false statement to the federal government.
In the context of Immigration Differed Action for Childhood Arrivals (”DACA”), if an applicant has had any arrest or conviction vacated, set aside, sealed, expunged or otherwise removed from the person's record, DACA provides that the applicant submit: an original or court-certified copy of the order or an original statement from the court that no record exists.
By a statute effective December 1, 2013, an employer or educational institution shall not require an applicant for employment or admission to disclose information regarding any arrest, charge or conviction that has been expunged. In addition, an applicant need not answer any question regarding an arrest, charge or conviction that has been expunged.
However, an applicant or licensee for a state or local law enforcement agency or anyone holding a certification issued by the North Carolina Criminal Justice Education, North Carolina Training Standards Commission or Sheriffs Education and Training Standards Commission must reveal any expunged charges and/or convictions.
B. Do you qualify for an Expungement?
Short answer: It depends on your circumstances.
You can get one Expungement in your life in North Carolina under most of the below various scenarios but your attorney may be able to obtain more than one Expungement of dismissed charges that occurred within a 12 month period or during one court session and you may be able to get more than one Expungement in various other situations.
Effective December 1, 2013, a person who files a petition for Expungement of a criminal record must pay the clerk of superior court a fee of one hundred seventy-five dollars ($175.00) at the time the petition is filed.
Contrary to common belief, opportunities to expunge a criminal record in North Carolina are not common. Instead, criminal records eligible for Expungement in North Carolina are generally limited to the following three categories
1. A first-time nonviolent offense committed more than 15 years ago
2. A first-time offense committed under age 18/22
3. A charge that was dismissed or disposed ”not guilty"
C. The non-conclusive list of the Expungement types follow:
1. Were you convicted of a first-time nonviolent offense committed more than 15 years ago:
Have you ever been convicted of a "nonviolent" felony or misdemeanor, at least 15 years have passed since you have completed the conviction or sentence, you have no other convictions other than for a traffic violation and you have not received another Expungement?
Driving while impaired convictions are "nonviolent" misdemeanors subject to the 15 year Expungement rule above.
Under the nonviolent felony/misdemeanor Expungement statute, a person may obtain Expungement of multiple nonviolent felonies and nonviolent misdemeanors if all were disposed of in the same court session and none of the offenses are alleged to have occurred after the person was charged with any of the offenses resulting in conviction.
If your license has been vacated by an occupational licensing board on account of your "nonviolent" felony or misdemeanor conviction, you may reapply for licensure and must satisfy the board’s then current education and preliminary licensing requirements after you receive an Expungement under this scenario.
2. Do you qualify for an age related Expungement?:
Were you under the age of 18 when you pled guilty or were found guilty of a violent or nonviolent misdemeanor charge?
If you were under the age of 18 when you pled guilty to or were found guilty of a misdemeanor, other than a traffic violation, you may file a petition in the court where you were convicted for an Expungement of the the violent or nonviolent misdemeanor from your criminal record. You have to wait 2 years from the conviction date or the end of your sentence to file the petition. Any previous Expungement, if any, does not explicitly make you ineligible for this Expungement.
Were you a first offender under the age of 18 at the time of the commission of the offense and convicted for a nonviolent felony?
If you were convicted of a nonviolent felony as a first offender under the age of 18 at the time of the commission of the offense, you have to wait 4 years after the date of conviction to file your petition. Before filing your petition, you must have performed 100 hours of community service, preferably related to the conviction. Once you have received this Expungement, you may reapply for licensure by an occupational licensing board if you have satisfied the board’s current education and preliminary licensing requirements.
Were you a first offender under the age of 18 at the time of your conviction for certain gang offenses? You may qualify for an exungement.
Were you under the age of 21 when you pled guilty or were found guilty of a misdemeanor possession of alcohol charge?
If you were under 21 when you pled guilty or were found guilty of a misdemeanor possession of alcohol charge, you may file a petition in the court where you were convicted for an Expungement of the misdemeanor from your criminal record. You can file the petition no earlier than 2 years after the date of the conviction or the completion of any period of probation whichever occurs later.
Were you are a first offender not over 21 years of age at the time of the offense of certain drug offenses? If so, you may qualify for an expungement.
3. Have you been ever been charged with a misdemeanor or felony that was dismissed?
If you were charged with a crime, either a misdemeanor or a felony, and the charge was dismissed, or a finding of not guilty or no responsible was entered, you may apply to the court of the county where the charge was brought for an order to expunge that charge from court records.
This type of expungement may apply to multiple charges as long as the offenses occurred within the same 12 month period of time or the same term of court. There is no requirement that the multiple offenses arise out of the same transaction or occurrence or that the multiple offenses were consolidated for judgment. This means that you may request to have expunged unrelated dismissed criminal charges that occurred during one 12 month period.
4. Have you ever been the victim of identity theft?
If so, you may file a petition in the court where you were convicted for an Expungement of a charges arising from the identify theft when charges are dismissed or there are findings of not guilty as a result of the identity theft.
5. Has your driver eligibility certificate ever been revoked?
If your permit or license has been revoked because of your not attending school and then the NC DMV subsequently reinstates your permit or license after you satisfy it that you are attending school or are justifiably unable to do so, the DMV must expunge any record of revocation or suspension from your driving record. However, an expungement is only allowed if you have never before received any expungement. This new law only applies to reinstatements occurring on or after December 1, 2013.
6. May you receive an Expungement in a civil matter?
A person also may obtain Expungements of records from some civil proceedings. A person may obtain an Expungement of records of a mental health admission or commitment that occurred when the person was a minor.
A person may obtain an Expungement of his or her name from the "responsible individuals list," which is a list of people determined by a county Department of Social Services to have abused or seriously neglected a child.
7. Can your delinquency adjudication as a juvenile be expunged?
In some situations, you may receive an expungement of your adjudication as a juvenile delinquent.
8. Maybe you received an Expungement for a cyberbullying charge?
In some situations, you may receive an expungement of your cyberbullying charge.
9. Does an Expungement really work?
In these days of internet court calendars where the names and birthdates of all North Carolina criminal and misdemeanor defendants are listed for the world to see, can an Expungement really erase all traces of this event, be it a a conviction or a charge?
The law provides that a State agency that receives an certified copy of an Expungement order shall notify any private entity with which it has a licensing agreement for bulk extracts of data from the agency criminal record database to delete the record in question. The private entity shall then notify any other entity to which it subsequently provides in a bulk extract data from the agency criminal database to delete the record in question from its database.
A private entity that disseminates information in violation of the above is liable for any damages, including attorneys’ fees and court costs, that are sustained as a result of the violation by the person who is the subject of that information. However, private entities that do not have licensing agreements with the State are not required to delete records.
Effective December 1, 2013, a newly amended statute prohibits any inquiry that reveals an expunged arrest, charge or conviction. Employers must also not seek or ask about criminal histories in a manner that results in the disclosure of any expunged information. Penalties for violating the new law include an initial warning and then up to $500 per incident for subsequent violations.
However, the above may not help because more cases are arising where the record is being sold or otherwise transferred so far downstream that the records are not being destroyed. Accordingly there is a significant chance that despite the record's being expunged it will at some point appear on a background report. In a circumstance where the expunged record does appear on a criminal background report, the petitioner may lawfully deny the charge of conviction occurred. However, many individuals in this circumstance have found it useful to explain that the criminal record has been expunged by court order.
10. If you do not qualify for an Expungement as outlined above, are you eligible for any other relief from a criminal or misdemeanor conviction?
An individual who is convicted of no more than two Class G, H, or I felonies or misdemeanors in one session of court, and who has no other convictions for a felony or misdemeanor other than a traffic violation, may petition the court where the individual was convicted for a Certificate of Relief relieving collateral consequences as permitted.
Twelve months must have passed since you completed your sentence, including active time, if any, and any period of probation, post-release supervision, and parole related to the offense that is required by State law or court order. There are some other requirements as well.
What does a certificate of relief accomplish? In some circumstances, a certificate of relief will not:
(1) Remove a motor vehicle license suspension, revocation, limitation, or ineligibility imposed pursuant to Chapter 20,
(2) Remove certain prohibitions on possession of firearms.
(3) End requirements imposed by, and any statutory requirements or prohibitions imposed as a result of registration as a Sexually Violent Predator.
(4) Make you eligible for certification pursuant to the North Carolina Justice or Sheriff training.
(5) Make you eligible for employment as a certain type of state employee if the ineligibility is a sanction imposed by a statute or session law of North Carolina.
Take advantage of the legislature’s gift and begin the process of removing old mistakes from your record. Call us today and start over with a clean slate!
The North Carolina has defined "nonviolent offenses" to be what they are not. They are not Class A through G felonies, not Class A1 misdemeanor, not an offense that includes assault as an essential element, not certain controlled substance offenses, not any felony offense in which a commercial motor vehicle was used among other types of cases.
The sequence in which a person petitions for an expunction may make a difference in light of the number of expunctions you may receive. For example, a person may obtain an expunction under G.S. 15A-146, which authorizes expunction of dismissals, and later obtain an expunction under G.S. 15A-145, which authorizes expunction of misdemeanor convictions, because G.S. 15A-145 does not list an expunction under G.S. 15A-146 as a bar. The reverse is not true. A person may not obtain an expunction under G.S. 15A-145 and later obtain one under G.S. 15A-146 because the latter statute lists a G.S. 15A-145 expunction as a bar.