Nonviolent Felony Convictions for Offenses Committed before Age 18

G.S. 15A-145.4 authorizes expunction of a conviction of a nonviolent felony by a first offender who was under age 18 at the time of the offense (see Table 2). This type of expunction was added by S.L. 2011-278 (S 397) and was modified in minor respects by S.L. 2012-191 (H 1023). The initial legislation states, without further qualification, that it is effective December 1, 2011; therefore, a person who satisfies the statutory criteria may obtain an expunction whether the offense or conviction occurred before or after that date.

“Nonviolent felony” is defined in G.S. 15A-145.4(a). The offense may not fall into one of several categories. For example, it cannot be a Class A through G felony, which means that only Class H and I felonies are eligible for expunction (except that for expunction petitions filed on or after December 1, 2012, a person may obtain an expunction of a prayer for judgment continued of certain Class G, H, or I drug convictions). G.S. 15A-145.4(b) states that a person may obtain an expunction of multiple nonviolent felonies for which a person is convicted at the same session of court if none of the offenses occurred after the person had already been charged and arrested (or, for expunction petitions filed on or after December 1, 2012, served with criminal process) for the commission of a nonviolent felony.

A waiting period is required before the filing of an expunction petition, but the length of the waiting period is not entirely clear. G.S. 15A-145.4(c) states that a petition may not be filed “earlier than four years after the date of the conviction or when any active sentence, period of probation, and post-release supervision has been served, whichever occurs later.” G.S. 15A-145.4(e), which describes the findings the court must make, contains similar language. One possible interpretation of this language (in the current AOC form expunction petition and order, AOC-CR-279) is that a person must wait four years after (i) the date of conviction or (ii) the date he or she completes the terms of his or her sentence, whichever is later. (The roman numerals are not included in the statute and are added to make the different interpretations easier to understand.) The difficulty with that interpretation is that it makes the language about the date of conviction superfluous because a person always will complete his or her sentence sometime after the date of conviction; therefore, the person always would have to wait four years after completing his or her sentence. Alternatively, the statute could be construed as requiring a person to wait until (i) four years have passed from the date of conviction or (ii) the person completes the terms of his or her sentence, whichever occurs later. This guide favors this alternative interpretation. See also infra Expunctions on Basis of Age: Older Nonviolent Misdemeanor and Felony Convictions (discussing this interpretation for similarly worded expunction statute).

Most expunction statutes provide that the court “shall” or “must” grant an expunction petition if the court finds that all of the statutory requirements have been met. G.S. 15A-145.4(e) states that the court “may” grant an expunction of a nonviolent felony conviction if the statutory requirements are satisfied. Use of the term “may” could be construed as giving the court discretion to deny an expunction petition even if the petitioner has met all of the statutory requirements. The difficulty with that construction is that the subsection indicates no basis for denying a petition if the petitioner satisfies the statutory criteria.

Most expunction statutes also provide that an expunged record may not be used in future proceedings and that the person may take the position that he or she has no such record without being held to have committed perjury or otherwise giving a false statement. G.S. 15A-145.4(f) creates a limited exception to that general approach, stating that a person seeking law enforcement certification in North Carolina must disclose to the certifying commission any felony convictions expunged pursuant to G.S. 15A-145.4. State and local law enforcement agencies, as well as the law enforcement certifying commissions, also may obtain records expunged pursuant to G.S. 15A-145.4 for employment and certification purposes. See G.S. 15A-151(a)(4), (5), and (6); G.S. 17C-13(b); G.S. 17E-12(b); see also AOC-CR-280 (Dec. 2011) (law enforcement application for verification of expunction under G.S. 15A-145.4).

Table 2. Nonviolent Felony Convictions for Offenses Committed before Age 18

Matters Subject to Expunction

Principal Restrictions on Expunction

Applicable Statutes and Forms

  • Conviction of nonviolent felony as defined in G.S. 15A-145.4(a), excluding
    • a Class A through G felony,a
    • a felony that includes assault as an element,
    • a felony requiring sex offender registration,b
    • a felony involving certain sex-related or stalking offenses,c
    • a felony under G.S. Ch. 90 involving methamphetamine, heroin, or sale, delivery, or possession with intent to sell and deliver cocaine,d
    • a felony involving certain racially motivated offenses,
    • a felony under G.S. 14-401.16 (contaminating food or drink), and
    • a felony in which a commercial vehicle was used
  • Offense occurred before age 18
  • No prior felony or misdemeanor conviction other than for traffic violation
  • Petition may not be filed until the later of (i) four years after conviction or (ii) completion of any active sentence, period of probation, or post-release supervisione
  • Good moral character and no felony or misdemeanor conviction other than for traffic violation since conviction
  • No outstanding warrants or pending criminal cases
  • Performance of 100 hours of community service after conviction, preferably related to conviction
  • No outstanding restitution orders or judgments representing restitution
  • High school diploma or equivalent
  • No prior expunction as shown by the records of the N.C. Administrative Office of the Courts

a For expunction petitions filed on or after Dec. 1, 2012, see note d, below.

b For expunction petitions filed on or after Dec. 1, 2012, this exclusion was clarified to cover felonies requiring sex offender registration, whether or not the person is currently required to register.

c For expunction petitions filed on or after Dec. 1, 2012, this exclusion was modified to delete a violation of G.S. 14-190.6 and add a violation of repealed G.S. 14-277.

d For expunction petitions filed on or after Dec. 1, 2012, this exclusion was modified to provide that a person may obtain an expunction of a prayer for judgment continued for an offense in this category classified as a Class G, H, or I felony.

e For a discussion of the length of the waiting period required before the filing of an expunction petition, see the discussion in the text.