Relief from a Criminal Conviction (2023 Edition)

G.S. 15A-145.5 authorizes expunction of older nonviolent misdemeanor and felony convictions (see Table 4). This type of expunction became effective on December 1, 2012, which means it is available for offenses and convictions that occurred before or after that date. See S.L. 2012-191 (H 1023) (amended by S.L. 2014-119 (H 369)).  The General Assembly expanded the relief available under this statute in 2020 (S.L. 2020-35 (S 562)), in 2021, S.L. 2021-118 (S 301), as amended by section 2.3 of S.L. 2021-167 (H 761), in 2022 (S.L. 2022-47 (H 607)), and in 2023 (S.L. 2023-103 (H 193)).This discussion concerns the current statutory requirements, which apply to petitions filed on or after December 1, 2023. See also John Rubin, 2021 Changes to North Carolina’s Expunction Laws, N.C. Crim. L., UNC Sch. of Gov’t Blog (Dec. 8, 2021).

The statute contains several interlocking requirements that determine the availability of relief.

A conviction is eligible for expunction if it is a “nonviolent felony” or “nonviolent misdemeanor” as defined in G.S. 15A-145.5(a). To meet these definitions and therefore be eligible for an expunction, an offense may not fall into one of several categories—for example, it cannot be a Class A through G felony or a Class A1 misdemeanor, which leaves only Class H and I felonies and Class 1, 2, and 3 misdemeanors eligible for expunction. See State v. Neira, 270 N.C. App. 359 (2020) (holding that G.S. 15A-145.5 did not preclude expunction of conviction of felonious speeding to elude arrest even though evidence showed that defendant was impaired and defendant was convicted in same case of impaired driving; offense of felonious speeding to elude arrest is not an offense involving impaired driving under G.S. 20-4.01(24a), which is the category of offenses excluded from expunction); Kyprianides v. Martin, 234 N.C. App. 665 (2014) (unpublished) (finding that because convictions for misdemeanor cruelty to animals did not fall into excluded categories, they could be expunged under G.S. 15A-145.5). For a discussion of the exclusion of offenses subject to sex offender registration, see Appendixes, Frequently Asked Questions (Offenses Subject to Sex Offender Registration).

A separate subsection, G.S. 15A-145.5(a1), provides that a conviction of impaired driving is not eligible for expunction. Impaired driving was previously identified in G.S. 15A-145.5(a) as an offense that was not nonviolent; as a result, it was not eligible for expunction and also disqualified a person from obtaining an expunction of certain other convictions under G.S. 15A-145.5. Effective for petitions filed on or after December 1, 2021, the General Assembly repealed that portion of G.S. 15A-145.5(a) and enacted G.S. 15A-145.5(a1). As a result, a conviction of impaired driving still cannot be expunged, but it does not bar an expunction of other convictions under G.S. 15A-145.5. See John Rubin, 2021 Changes to North Carolina’s Expunction Laws, N.C. Crim. L., UNC Sch. of Gov’t Blog (Dec. 8, 2021) (discussing impact of creation of separate subsection on impaired driving); see also infra Appendixes, Frequently Asked Questions (Traffic Violations and Driving While Impaired (DWI)).

A person may obtain an expunction of:

• one nonviolent misdemeanor conviction after five years;
• multiple nonviolent misdemeanor convictions after seven years;
• one nonviolent felony conviction , other than felony breaking and entering under G.S. 14-54(a), after ten years;
• one conviction of felony breaking and entering under G.S. 14-54(a) after fifteen years; and
• two or three nonviolent felony convictions after twenty years.

For all five categories, multiple convictions of nonviolent felonies or nonviolent misdemeanors count as one nonviolent felony or one nonviolent misdemeanor conviction if the convictions occurred during the same session of court. A person who receives an expunction of a misdemeanor conviction may be eligible to expunge felony convictions, and vice versa, if the person satisfies the prior conviction and prior expunction requirements and the waiting periods, discussed below.

For expunctions of two or three nonviolent felony convictions from separate sessions of court, the felony offenses must have been committed within a 24-month period. G.S. 15A-145.5(c3)(4b). For expunctions of more than one nonviolent misdemeanor conviction, there is no such requirement.

For the two misdemeanor categories, the person must be conviction-free, other than for a traffic violation, during the applicable waiting period. For the three felony categories, the person must have no felony convictions during the applicable waiting period and no misdemeanor convictions other than for a traffic violation during the five years before the petition.

Each category also contains its own conviction disqualifier that is not time limited. For expunctions of felony convictions and more than one misdemeanor conviction, the disqualifying convictions outside the waiting period are narrower than during the waiting period. To expunge one or more felony convictions, a person may not have any prior misdemeanor conviction that is an exception to the definition of “nonviolent” misdemeanor or any prior felony convictions. To expunge one or more misdemeanor convictions, the person may not have any prior felony or misdemeanor convictions that are an exception to the definition of “nonviolent” felony or misdemeanor.

General rules. A prior expunction under G.S. 15A-145.5 disqualifies a person from obtaining a subsequent expunction under G.S. 15A-145.5 except in the following circumstances.

• An expunction under another statute does not disqualify a person from obtaining an expunction under G.S. 15A-145.5.

• A person who receives an expunction of a misdemeanor under G.S. 15A-145.5 is able to obtain an expunction of a felony under G.S. 15A-145.5 if the felony occurred before the misdemeanor expunction. The same rule applies in reverse: a person who receives an expunction of a felony under G.S. 15A-145.5 is able to obtain an expunction of a misdemeanor under G.S. 15A-145.5 if the misdemeanor occurred before the felony expunction. Some parts of G.S. 15A-145.5 do not specifically require that a subsequent expunction be for an offense that occurred before a prior expunction. See G.S. 15A-145.5(c2) (misdemeanors); G.S. 15A-145.5(c3) (felonies). Another provision, however, imposes that requirement and appears to be controlling. See G.S. 15A-145.5(c) (“A person previously granted an expunction under this section is not eligible for relief under this section for any offense committed after the date of the previous order for expunction.”).

• A person who receives an expunction of a misdemeanor under G.S. 15A-145.5 may obtain an expunction of another misdemeanor under G.S. 15A-145.5 if one of the exceptions in subsections (c4) or (c5) apply. The same rules apply to felony expunctions. The exceptions involve convictions from multiple counties and petitions for expunctions filed before December 1, 2021, discussed below. Under G.S. 15A-145.5(c1)(7), the petitioner must acknowledge that unless an exception applies, an expunction of one misdemeanor conviction disqualifies a person from later obtaining an expunction of additional misdemeanor convictions and an expunction of one felony conviction disqualifies a person from obtaining an expunction of additional felony convictions. The applicable AOC forms contain this acknowledgement.

Convictions from multiple counties. G.S. 15A-145.5(c4) recognizes that a person has the right to petition to expunge convictions from different North Carolina counties. It directs that a petition be filed in each county in which a conviction occurred. It further states that all petitions “shall be filed within a 120-day period.” If a person files petitions in multiple counties within the 120-day window, an expunction in one county does not disqualify the person from obtaining an expunction in other counties. G.S. 15A-145.5(c); see also G.S. 15A-145.5(c1)(6) (requiring that petition include information about filings in other counties). If a person fails to file within the 120-day time limit, an expunction in one county under G.S. 15A-145.5 may bar a person from obtaining an expunction of an otherwise eligible conviction in another county under G.S. 15A-145.5.

The time limit is not absolute. It appears to apply only to expunctions of the same level of offense—that is, misdemeanors or felonies—because of the interplay of G.S. 15A-145.5(c4) and G.S. 15A-145.5(c). Under the latter subsection, a person who received an expunction of one or more misdemeanors is not eligible to expunge additional misdemeanors under G.S. 15A-145.5 except when the person petitions for expunctions in multiple counties within 120 days as provided in G.S. 15A-145.5(c4) (or the person is eligible for an expunction under G.S. 15A-145.5(c5), discussed below). G.S. 15A-145.5(c) contains the same language for felony expunctions. As a result, a person may be able to obtain an expunction of a misdemeanor after obtaining an expunction of a felony in a different county, and vice versa, without having petitioned for the expunctions within 120 days.

If a petitioner fails to petition to expunge eligible convictions in other counties, a court has the authority to grant the petition for good cause. G.S. 15A-145.5(c4). Other expunction statutes, including G.S. 15A-145.5, set deadlines for prosecutors to object. See Overview: Procedure to Obtain an Expunction (Orders). Without a safety valve, the various deadlines could bar both petitions to expunge and objections to petitions. Cf. In re D.S., 364 N.C. 184, 193–94 (2010) (holding that noncompliance with 15-day deadline, plus 15-day extension, for filing of juvenile delinquency petition following submission of complaint did not deprive court of jurisdiction; court relies on decisions holding that a statute’s use of term “shall” for time in which to act may be directory, not mandatory).

Because of the risk of denial of relief, petitioners and their counsel should carefully investigate the record to identify all convictions and, if from different counties, file all petitions within the 120-day window.

Petitions for expunctions filed before December 1, 2021. Subsection (c5) of G.S. 15A-145.5 is essentially a legacy clause. It allows people who received an expunction of one nonviolent felony conviction pursuant to a petition filed before December 1, 2021, when several new provisions became effective, to obtain an expunction of up to two additional felony convictions if the offenses were committed before the previous expunction and were committed within the same 24-month period as the expunged felony. This subsection also applies to expunctions of nonviolent misdemeanors, allowing people who received an expunction of one or more misdemeanors pursuant to a petition filed before December 1, 2021, to obtain an expunction of additional misdemeanors if the offenses were committed before the previous expunction.

Like many relief statutes, the five categories of expunctions under G.S. 15A-145.5 contain a waiting period with two parts, but they have different starting dates and different lengths.

For expunction of one felony conviction (whether a felony breaking and entering conviction under G.S. 14-54(a) or another felony conviction), two or three felony convictions, and more than one misdemeanor conviction, the starting date of the waiting period is similar. For example, for expunction of one felony conviction, G.S. 15A-145.5(c)(2)a. states that a petition may not be filed earlier than “10 years after the date of the conviction or 10 years after any active sentence, period of probation, or post-release supervision has been served, whichever occurs later.” This formulation effectively makes the sentence-completion date the starting date of the waiting period because that date will always be the same as and usually later than the date of conviction. The wording is similar for expunction of one felony breaking and entering conviction, two or three felony convictions, and more than one misdemeanor conviction; the language effectively makes the starting date of the waiting period fifteen years after the felony breaking and entering conviction, twenty years after completion of the sentence for the last felony conviction, and seven years after completion of the sentence for the last misdemeanor conviction. See G.S. 15A-145.5(c)(1)b.; G.S. 15A-145.5(c)(2)a1., b.

For expunction of one misdemeanor conviction, G.S. 15A-145.5(c)(1)a. states that a petition may not be filed earlier than “five 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.” The starting date of the waiting period under this phrasing is subject to two different interpretations. One interpretation is that the person always must wait the required years—in this instance, five years—after completing his or her sentence, which necessarily will be at least five years after the date of conviction and usually longer. An alternative interpretation is that the statute requires that a person wait until (i) five years have passed from the date of conviction or (ii) the person completes the terms of his or her sentence, whichever occurs later. Under this interpretation, the person always must wait five years from the date of conviction before petitioning for an expunction of one misdemeanor conviction; if the person has not completed his or her sentence within five years of conviction, he or she must wait any additional time it takes to complete the sentence. This interpretation is supported by the waiting-period language for the other four categories of expunctions in G.S. 15A-145.5, which specify the number of years a person must wait after both the conviction date and completion of sentence. Finding of fact no. 3 in the applicable AOC form, AOC-CR-298, states that the person must have been convicted of and completed any sentence at least five years before filing of the petition, but this approach seems inconsistent with the statute. For a further discussion of expunction statutes with two-part waiting periods, see infra Appendixes: Frequently Asked Questions (Waiting Periods).

Most expunction statutes do not require notice to the victim. G.S. 15A-145.5(c) requires the district attorney’s office to make its best efforts to notify the victim of the expunction petition and gives the victim the right, on request, to be present and be heard at the hearing.

As in some other relief statutes, eligibility for an expunction depends on the class of the offense to be expunged. The question has arisen whether the court should consider the class of offense at the time of offense or the class at the time of the petition for expunction. This guide’s view is that the class of offense at the time of offense controls. See infra Appendixes: Frequently Asked Questions (Offense Class).

Like many relief statutes, G.S. 15A-145.5 treats traffic violations differently than other criminal convictions. First, a traffic violation is generally not a bar to expunction of a conviction under G.S. 15A-145.5. This guide takes the view that the term “traffic violation,” as used in the expunction statutes, means any misdemeanor conviction under Chapter 20 of the General Statutes unless otherwise specified. Second, G.S. 15A-145.5 does not exclude Chapter 20 violations, whether felonies or misdemeanors, from the types of convictions that may be expunged except for a felony offense involving a commercial vehicle, which is an exception to the definition of nonviolent offense, and misdemeanor or felony offenses involving impaired driving as defined in G.S. 20-4.01(24a), which are not eligible to be expunged. The meaning of traffic violation, including impaired driving, is discussed further in Appendixes: Frequently Asked Questions (Traffic Violations and Driving While Impaired (DWI)).

Some parts of G.S. 15A-145.5 use the term “traffic offense.” See G.S. 15A-145.5(c)(1)b. (excluding traffic offenses that are not the subject of the expunction petition from the waiting period for expunction of more than one misdemeanor conviction); G.S. 15A-145.5(c2)(6)a. (providing that person must be conviction-free, other than for traffic offense, to expunge one misdemeanor conviction). The terms “traffic offense” and “traffic violation” in G.S. 15A-145.5 appear to have been used interchangeably and have the same meaning—that is, as a misdemeanor conviction under Chapter 20. It seems unlikely that the General Assembly intended to exclude a felony conviction under Chapter 20 from the waiting period for expunging more than one misdemeanor conviction.

Table 4. Older Nonviolent Misdemeanor and Felony Convictions