Changes in the Expunction Laws

Criminal records can hurt negatively impact a person’s life in many different ways, from college applications and job opportunities to housing eligibility and obtaining benefits. For that reason, people often ask me whether their charges and/or convictions can be erased. This is called an expunction. Sometimes, when a person has a limited record, the answer is simple. Other times, with a lengthier record, figuring out whether a person is eligible for an expunction can feel like trying to solve a Rubik’s cube. Nonetheless, we have the knowledge and tools to figure it out for you. Additionally, some new expunction laws will take effect in December 2017, making more people eligible. Here are the most common avenues of expunctions and how these avenues will change come December.

Expunction of a dismissed or “not guilty” charge

NCGS 15A-146 allows for the expunction of charges not resulting in a conviction. A person cannot have any felony convictions (misdemeanor convictions do not affect eligibility). Additionally, a person cannot have any previous expunctions under §§15A-145, -145.1, -145.2, -145.3, -145.4, -145.5, or -146. The judge must grant an expunction if a person meets the criteria.  

More Good News

Taking effect December 1, 2017, the expunction statute will allow for the expunction of all dismissed and “not guilty” charges, regardless of when they occurred. Thus, a previous expunction will no longer bar the expunction of a subsequently dismissed charge. The no-felony-conviction requirement will remain the same.

Expunction of a non-violent misdemeanor or felony conviction

NCGS 15A-145.5 allows for the expunction of a non-violent misdemeanor or felony conviction. Some offenses that are not eligible for expunction include A through G felonies, A1 misdemeanors, any offense involving an assault, DWIs, certain drug offenses, and certain sex and stalking offenses. 

The Bad News

There’s a catch: currently, as the law stands, a person must wait 15 years from the conviction date before she can apply for an expunction under this statute. The judge has discretion whether to grant the expunction.

Other requirements:

  • No prior or subsequent convictions, other than traffic violations
  • The sentence has been fully completed
  • No current warrants or pending criminal cases
  • No other expunctions under 15A-145, -145.1, -145.2, -145.3, -145.4, or -145.5.
  • An affidavit from the petition stating she meets the eligibility requirements and has had good moral character since the conviction
  • Affidavits from two non-family members stating good character 

The Good News

Taking effect December 1, 2017, this expunction law will change. Instead of waiting 15 years, a person only needs to wait 5 years for a misdemeanor conviction and 10 years for a felony conviction. The rest of the requirements remain the same.

An additional interesting change

These new laws are major and will make it easier for many, many people to clear their records. But the new law makes one interesting change: The Administrative Office of the Courts is now required to make most criminal records expunged on or after July 1, 2018, electronically available to state prosecutors. Prosecutors can use this information to calculate record levels for people who receive subsequent convictions. The information is admissible at a sentencing hearing. Presumably, prosecutors can also use this information to deny deferrals to people who have expunged dismissed charges (It does not appear, however, that charges resulting in “not guilty” will be made available to the prosecutor).

Still have questions? Call me at 704-879-3147. Below are some frequently asked questions and helpful resources.

FAQs

What even is an expunction?

An expunction is a court order to all relevant state agencies to destroy a criminal record, police reports, mugshots, etc.

If my charge was dismissed, will it still show up on my record?

Yes, a dismissed charge will still show up on your record if someone performs a background check on you. In North Carolina, dismissed or not guilty charges are not automatically erased. You have to file a petition for expunction. We can help with that.

Do I have to list a dismissed charge on my job application (if it hasn’t been expunged)?

It depends what the application asks. If they application asks if you have ever been charged with a crime, then yes. If the application asks if you have ever been convicted of a crime, then the answer is no. Note that some applications may also ask solely if you have been charged with or convicted of a felony, not a misdemeanor.

Do I have to disclose an expunged conviction or charge on college/job applications or in court? 

No, a person cannot be legally guilty of perjury or giving a false statement by failing to disclose an expunged matter. However, a college or job could potentially find out about your charge/conviction another way (i.e. new articles, mug shots) and hold your failure to disclose against you.

What other types of convictions can be expunged?

Some of the other types of records that can be expunged include: juvenile records, misdemeanors under age 18, gang offenses under age 18, controlled substances under age 22, nonviolent felony under age 22, prostitution offenses, identity theft, DNA records, and cases involving a pardon of innocence.

What if I have multiple convictions or charges?

For dismissed charges, as the law currently stands, all offenses that occurred within the same 12-month period or that were resolved in the same session of court can be expunged. But beginning December 1, 2017, all dismissed charges can be expunged (as long as you do not have a felony conviction).

For non-violent convictions, multiple convictions can be treated as one conviction and expunged if: (1) all of the convictions were received in the same court session and (2) none of the offenses occurred after the person had already been charged with the other offense or offenses.

Where should a petition for expunction be filed?

The petition should be filed with the clerk in the county where you were charged or convicted.

Can I have an old conviction or charge expunged under the new laws?

Yes. The new laws simply state that the petition must be filed on or after December 1, 2017. This does not mean that the offense must occur after this date. The offense can occur any time before, on, or after this date to be eligible for expunction.

How do I get my mugshot off the sheriff’s website?

In Mecklenburg County, completed expunctions are sent to the Sheriff’s office, which will take down your mugshot. However, your mugshot may still appear on other websites such as mugshots.com and these websites may require you to pay to have your mugshot taken down. We can attempt to have these websites take down your mugshot by sending them a letter with a copy of your expunction.  

Helpful resources

UNC School of Government Blog on New Expunction Laws

North Carolina Justice Center 2017 Summary of NC Expunctions