Category: Expunctions

Expunctions, Legal Blog, New Legislation

The Second Chance Law

On June 25, 2020, Governor Cooper signed into law the Second Chance bill which simplifies the procedure for getting an expunction. The law modifies the following expunction protocols: (1) when the petitioner is between 16-18 years of age, (2) cases where there was a dismissal or a finding of Not Guilty, and (3) cases involving a non-violent misdemeanor or felony conviction.

Expunction for persons between the ages of 16-18 (15A-145.8)
– any misdemeanor of Class H/I felony

– unless it is a DWI or any offense requiring sex registration

– The petition can be filed once probation has been completed and all fines/restitution paid.

– The defendant or the DA can file the petition. If the defendant files the petition, there is a $175 filing fee unless indigent and service to the DA.

-The petition is a specific form from the Administrative Office of Courts (AOC) website.

Expunction of Dismissed charges or findings of Not Guilty (15A-146)
-any misdemeanor, felony, or the purchase, possession, or consumption of alcohol by a 19 or 20-year old infraction.

-is applicable to multiple charges only some of which were dismissed; those dismissed charges can be expunged.

– the petition is an AOC form but there is no filing fee. There is no hearing before the court.

[After 12/1/21, these expunctions will occur automatically for dismissed/Not Guilty/Not Responsible charges]

Expunction of a nonviolent misdemeanor and felony convictions (15A-145.5)
-Can’t be an excluded offense:

a) Class A-G felony of A1 misdemeanor

b) No assault offenses

c) No charge requiring sex registration

d) No sex-related or stalking offense

e) No felony involving sales or intent to sell meth, heroin or cocaine

f) hate crimes

g) utilization of date-rape drugs

h) Breaking and Entering a dwelling house

i) A felony with the use of a commercial motor vehicle

j) An impaired driving offense

k) Any attempt of the above-listed offenses.

– When can the petition be filed?:

For a single misdemeanor, it is 5 years after probation has ended.

For multiple misdemeanors, it is seven years after the date of the petitioner’s last probationary period.

For a single felony, the petition can be filed ten years after probation has ended.

-Expunctions for convictions require that:

a) No expunctions were granted under this section prior to the date of the offense which is the subject of the petition,

b) The petitioner and two non-family members must submit affidavits that the petitioner is of good moral character,

c) The petitioner must affirm that there have been no additional convictions and all restitution orders have been paid and

d) A hearing is held and the victim and the probation officer may testify.

If you have a case to be expunged and the petitions are too intimidating, many counties (Durham: www.deardurham.org/, Orange: www.orangecountync.gov/2301/Restoration-Legal-Counsel and Wake: expungenc.com/) and Legal Aid ( www.lawhelpnc.org/organization/legal-aid-criminal-expungement-clinic?ref=ZCefb) have programs to provide assistance free of charge.

Expunctions, Legal Blog

UNLIMITED EXPUNCTIONS FOR DISMISSED/NG CHARGES IF NO FELONY PRIORS

Awaiting Governor Cooper’s signature is SB 445 which modifies NCGS § 15A-146. The new proposed law permits an unlimited number of expunctions for charges which were dismissed or disposed of by a finding of “not guilty” or “not responsible” as long as that person has not sustained a felony conviction. This is a major modification of the law which previously required that no previous expunctions had been granted and the dismissals must have occurred within a 12-month period or within the same court session.
Additionally, a person may file a petition for expunction of a nonviolent misdemeanor or nonviolent felony conviction if the person has no other misdemeanor or felony convictions. Non-violent felony convictions can be expunged 10 years after the conviction date or when any active sentence, period of probation, and post-release supervision has been served, whichever occurs later. Nonviolent misdemeanor convictions may be expunged after 5 years after the conviction date or probation or post-release supervision completion. This is a substantial reduction from the current waiting period of 15 years. (NCGS § 15A-145.5) Once signed, this law will be effective on December 1, 2017.
Update: This bill was signed into law and takes effect December 1. 2017.

Expunctions, Legal Blog

Pending NC Bill May Shorten Time for Expungement of Misdemeanors and Low-Level Felonies

When a petition for expunction is granted, a criminal case court file is removed from the Clerk of Court’s office and destroyed. As far as the law is concerned, the case never existed and it cannot be listed on a criminal background check. A conviction, dismissal or a finding of Not Guilty will still appear on a criminal history. Therefore, you want to expunge cases whenever possible.

Proposed Senate Bill 362 would amend the expunction laws and allow for a shorter waiting period for the expunction of nonviolent misdemeanor and felony convictions. It would also allow for the dismissal of any case where a Not Guilty verdict was reached or the case was dismissed regardless of whether an expunction was previously granted.

Currently, you must wait 15 years for a misdemeanor and low-felony conviction to attain eligibility for an expungement in the state of North Carolina. But with if SB 362 becomes law, the waiting period will be substantially shorter: five years for certain misdemeanors and ten years for certain felonies. Expunction of a prior criminal conviction will remove barriers to those who experience are rejected or disqualified from opportunities due to a prior criminal conviction.

Misdemeanor Expungement in North Carolina

Those with nonviolent misdemeanor convictions such as drug and theft related offenses may be able to erase all record of the crime as early as five years after the date of conviction.

Low-Level Felony Conviction Expungement in North Carolina

If the bill becomes law, nonviolent low-level North Carolina felony convictions could be expunged as soon as 10 years after the date of conviction if there was not an active sentence. If there was an active sentence, the wait is five years or the expiration of probation and post release supervision whichever comes later.

No limit on number of expunctions for dismissed cases and acquittals

Currently, a person can only receive and expunction for dismissed cases occurring within a 12 month period. Once an expunction is granted, another cannot be sought even if the next case is dismissed or there is a finding of Not Guilty. If this bill becomes law, dismissed cases and acquittals can be expunged from one’s record whenever they occur. For example, one would be able to have both a dismissed marijuana possession charge from 2005 and a dismissed larceny charge from 2009 expunged instead of just selecting one. This is a huge benefit for those who have had several acquittals and/or dismissals over a period of years.

This bill is still pending but if it applies to you, I will update this blog when/if it becomes law. Keep your fingers crossed.

DUI/DWI Issues, Expunctions, Legal Blog

Expunge your DWI/DUI before December 1, 2015 or it will be too late

G.S. 15A-145.5 allows for the expunction of convictions for “nonviolent” misdemeanors and felonies which are at least fifteen years old. Until recently, a misdemeanor DWI conviction has not been on the list of excluded offenses. However, amended G.S. 15A-145 (expunction of misdemeanor conviction for first offender under 18), G.S. 15A-145.4 (expunction of nonviolent felony conviction for first offender under 18), and G.S. 15A-145.5 (expunction of certain nonviolent misdemeanor or felony convictions without age limitation), will add the DWI to the list of excluded offenses for expunction petitions filed or pending on or after December 1, 2015.
If you otherwise qualify, have your expunction petition filed immediately. Expunction petitions can take four to six months to be granted and the new law will bar any petitions not granted by December 1, 2015. So get going or it will be too late.