Relief from a Criminal Conviction (2023 Edition)

Although each type of expunction of an adult criminal matter has its own preconditions, all involve the same basic procedure with some variations.

By prosecutor. A prosecutor may file for an expunction of dismissals under G.S. 15A-146 and of adult convictions of juveniles under G.S. 15A-145.8A. These provisions enable interested district attorneys to petition on behalf of all people eligible for relief. See generally Andrea Dreier, Thanks to Bipartisan Second Chance Act, 400,000 Convictions Eligible for Prosecutor-Initiated Expunctions (N.C. Justice Center, Sept. 27, 2020). For expunction of DNA records, the prosecutor is obligated to initiate the expunction process in some cases. See infra Expunctions of Dismissals and Similar Dispositions: DNA Records.

Automatically. Some statutes provide for automatic expunction, without a petition. See G.S. 15A-147(a1), discussed infra in Expunctions of Dismissals and Similar Dispositions: Charges Resulting from Identity Theft or Mistaken Identity; G.S. 15A-145.8, discussed infra in Expunctions of Dismissals and Similar Dispositions: Charges Remanded to Juvenile Court.

On December 1, 2021, cases in which all charges ended in a dismissal or acquittal, other than dismissals of felony charges pursuant to a plea agreement, became subject to automatic expunction. See G.S. 15A-146(a4), discussed infra in Expunctions of Dismissals and Similar Dispositions: Dismissal or Finding of Not Guilty of Misdemeanors, Felonies, and Certain Infractions. Because of technical concerns that arose during implementation, the General Assembly suspended automatic expunctions on August 1, 2022, until July 1, 2024, and directed further study by the AOC and affected stakeholders. See S.L. 2022-47, Sec. 1–2 (H 607), as amended by S.L. 2023-103, Sec. 14.5 (H 193).

Form petitions. The AOC has issued forms for most types of expunctions, which specify the materials that must accompany a petition for expunction and the findings that the court must make. In areas in which the statutes are ambiguous, the drafters of the AOC forms (the AOC Forms Committee) sometimes have had to interpret the statutory requirements and incorporate them into the forms. In the occasional instance in which this guide’s interpretation differs from the interpretation in the AOC forms, the difference is noted. Petitioners who disagree with the AOC’s interpretation still must use the forms in petitioning for an expunction—the expunction statutes require use of AOC forms for ease of administration.[2] Petitioners should modify the applicable form if needed and explain the grounds for the modification to the court, which has the authority to depart from the form. For a discussion of this guide’s approach to ambiguous provisions in the expunction and other relief statutes, see infra Overview: Interpreting Relief Statutes.

Generally, the expunction statutes identify the court in which the petitioner must file for an expunction—that is, the venue (location) and jurisdiction (level of court) for the filing of the petition. Most explicitly require filing in the court of the county where the person was convicted. See, e.g., G.S. 15A-145(a) (so stating for expunction of conviction under that statute); G.S. 15A-145.4(c) (to same effect for expunction under that statute). A few of the expunction statutes do not specify. See, e.g., G.S. 15A-145.2(b), (c) (stating only that person may apply to the court for expunction); G.S. 15A-145.3(b), (c) (to same effect). For convictions, the appropriate venue and jurisdiction is the county and trial division in which the defendant was convicted. The appropriate court for filing is not as clear for expunctions of dismissals. G.S. 15A-146(a) directs that the petition be filed with the court of the county “where the charge was brought,” which establishes the venue for filing. As for the level of court, expunctions of dismissals are generally handled in the trial division—district or superior—where the case was dismissed. See also G.S. 15A-147(a) (explicitly directing that expunction petitions in identity theft cases be filed “where the charge was last pending”). For expunctions of dismissals in multiple courts—for example, dismissals of related charges pending in district and superior court—G.S. 15A-146(a1) directs the “court” to hold a hearing on the petition. This wording suggests the possibility that a single court could rule on expunction of all the dismissals. For a further discussion of expunging multiple dismissals, see infra Expunctions of Dismissals and Similar Dispositions: Dismissal or Finding of Not Guilty of Misdemeanors, Felonies, and Certain Infractions.

Many expunction statutes require a person seeking an expunction to consent to two record checks—one by the AOC about any prior expunctions obtained by the petitioner and the other by the North Carolina Department of Public Safety, through the State Bureau of Investigation (SBI), about any prior criminal convictions. See, e.g., G.S. 15A-145.2(a)(3a); compare, e.g., AOC-CR-266 (Dec. 2023) (stating that a record check by the AOC and SBI are not required for expunction petitions under G.S. 15A-145.2(b)); AOC-CR-268 (Dec. 2023) (to same effect under G.S. 15A-145.3(b)).

Neither a prior expunction nor a prior record check is required for expunctions of dismissals under G.S. 15A-146 because the statute no longer makes prior expunctions and prior convictions a bar. The petition and order form developed by the AOC does not direct the court to order one. See AOC-CR-287 (Jan. 2023) (expunction of dismissal); AOC-CR-288 (Jan. 2023) (expunction of acquittal).

Legislation enacted in 2017 clarified the responsibilities of the clerk of court for record checks. S.L. 2017-195 (S 445) amended several statutes to specify that the clerk forwards orders for record checks to the appropriate agencies. See, e.g., G.S. 15A-145(a)(4). (Previously in some counties, after the judge ordered a record check, the petitioner was expected to send the order to the appropriate agencies.) The expunction statutes do not specifically require the clerk to notify petitioners after the record checks are returned. If the clerk in a particular county or the involved agencies do not make it a regular practice to give such notice, petitioners should periodically contact the clerk to determine the status of the record check.

Reports from the SBI have sometimes included its interpretation about the petitioner’s eligibility for an expunction, not just a record of the petitioner’s convictions. The SBI’s interpretation is not binding on the court, which ultimately determines whether the petitioner has satisfied the statutory criteria.

Several expunction statutes specify that the petition and attached materials be served on the district attorney. See G.S. 15A-145; G.S. 15A-145.1; G.S. 15A-145.4; G.S. 15A-145.5; G.S. 15A-145.6; G.S. 15A-145.8A; G.S. 15A-145.9; see also G.S. 15A-147 (requiring that prosecutor receive notice of hearing on petition). Although not statutorily required, the AOC form petitions for these expunction petitions contain a space for the prosecutor to confirm receipt of service.

A notable exception to the usual service requirements is G.S. 15A-146 on expunction of dismissals, which does not specifically require service. But cf. G.S. 15A-146(b1) (requiring service on district attorney of petition to expunge DNA records under the limited circumstances in that subsection). Although service is ordinarily required for court filings, the General Assembly may have intended to streamline the proceedings for expunctions of dismissals by not requiring the district attorney’s involvement. The applicable AOC forms do not require service on the prosecutor (AOC-CR-287 (Jan. 2023) (expunction of dismissal); AOC-CR-288 (Jan. 2023) (expunction of acquittal)). See also G.S. 15A-145.2 (statute and accompanying AOC form do not specifically require service); G.S. 15A-145.3 (to same effect). But see G.S. 15A-145.7 (although statute does not require service on district attorney, AOC form, AOC-CR-289 (Dec. 2023), requires service). Local practices may vary.

For most types of expunction petitions, the filing fee is currently $175. The fee does not apply if the court allows the petitioner to proceed as an indigent person. See G.S. 15A-145(e); G.S. 15A-145.1(d); G.S. 15A-145.2(d); G.S. 15A-145.3(d); G.S. 15A-145.4(j); G.S. 15A-145.5(g); 15A-145.7(d); G.S.15A-145.8A(h). The expunction statutes do not specifically define indigency, but G.S. 1-110 sets forth the criteria for the filing of a civil action as an indigent person, including representation by a legal services organization for poor people. The AOC form, AOC-G-106, Petition to Sue/Appeal/File Motions as an Indigent (Jan. 2023), allows the filing of an expunction petition as an indigent person on this basis.

Some expunction statutes impose no filing fee. See G.S. 15A-145.6 (prostitution offenses); G.S. 15A-145.9 (human trafficking victims); G.S. 15A-147 (identity theft and mistaken identity); G.S 15A-148 (DNA records); G.S. 15A-149 (pardons). No filing fee is due in cases in which the district attorney petitions to expunge an adult conviction of a juvenile; a filing fee of $52.40 is due when an individual files for this type of expunction. G.S. 15A-145.8A(h); S.L. 2023-134, Sec. 19F.4(oo) (H 259).

. G.S. 15A-146 imposes no filing fee for acquittals and other dismissals, whether the petition is filed by an individual or district attorney, but imposes a filing fee of $175 for petitions by an individual to expunge a dismissal after compliance with a deferred prosecution agreement or the terms of a discharge and dismissal.[3]

The filing fee for a certificate of relief is $50 unless the person is indigent. G.S. 15A-173.2(h).

Most expunction statutes refer in some way to the holding of a hearing on the petition, but the language and practices are not uniform.

• One statute explicitly requires a hearing after notice to the district attorney. See G.S. 15A-147(a) (when affected person petitions for expunction in case of identity theft or mistaken identity).

• Some authorize the court to grant the petition “after hearing.” See G.S. 15A-145(b); G.S. 15A-145.1(b); G.S. 15A-145.2(a), (b); G.S. 15A-145.3(a), (b); G.S. 15A-145.5(c2), (c3); G.S. 15A-145.7; 15A-145.8A(d); see also G.S. 7B-3200(d) (juvenile adjudications). Related subsections do not contain language about a hearing but probably are subject to the same approach. See G.S. 15A-145.2(c) (expunction of drug conviction); G.S. 15A-145.3(c) (expunction of toxic vapors conviction).

• Some statutes require notice to the district attorney of “the date of the hearing.” G.S. 15A-145.4(c); G.S. 15A-145.5(c1), (c2), (c3) (also authorizing court to grant petition “after hearing”); G.S. 15A-145.6(d); G.S. 15A-145.9(d).

Some statutes, by the procedures they establish, may not require a hearing. See G.S. 15A-145.8 (requiring expunction of superior court record after remand of case to juvenile court); G.S. 15A-149 (requiring expunction after clerk of court verifies pardon of innocence); see also G.S. 15A-266.3A(j), (k), (l) (requiring district attorney and State Crime Lab to take timely actions to expunge DNA records and destroy DNA samples and allowing defendant to file motion with court if they fail to do so).

Some statutes allow a court to grant a petition for an expunction without a hearing. See G.S. 15A-146(a6) (so stating for expunctions of dismissals and acquittals in adult proceedings); G.S. 7B-3200(h) (providing that court may grant a petition to expunge a dismissal of a juvenile petition without a hearing if the chief court counselor does not file a timely written objection). Previously, G.S. 15A-146 explicitly required a hearing. Legislative changes in 2020, in S.L. 2020-35 (S 562), substituted the italicized language for the broader hearing requirement, which may mean that the court should afford the petitioner the opportunity for a hearing if the court intends to deny the petition.

Automatic expunctions of dismissals and acquittals, which have been suspended until July 1, 2024, are without a hearing. See Initiation of Expunction Process, above. The automatic expunction statute, G.S. 15A-146(a4), does not indicate a procedure for bringing to the court’s attention matters that should have been automatically expunged but were overlooked, but presumably an affected person would have the right to request or petition the court to order the matters to be expunged. Before postponement of the automatic expunction process, prosecutors who intended to seek appellate review of the dismissal of a case might request the trial judge to preserve the court’s files pending appeal. See State v. C.K.D., ___ N.C. App. ___, 895 S.E.2d 923 (2023) (unpublished) (trial judge granted motion to preserve court file after grant of Knoll motion and dismissal of impaired driving charge).

With the many statutory variations, hearing practices differ around the state. In many districts, judges rule on petitions without a hearing; in other districts, judges require a hearing on all petitions. The AOC has advised clerks that “almost all expunctions require a hearing before the court.” N.C. Administrative Office of the Courts, Expunction Guide for Clerks at 15 (Mar. 2020). The extent that this occurs is unclear, however. If a petitioner wants a hearing and is in a district that does not routinely hold them, the petitioner should contact the clerk of clerk about the procedure to follow. Id. (advising that after return of record check, petitioner should contact clerk of court to schedule hearing). If a judge denies a petition without a hearing, the petitioner may have grounds to request a hearing to reconsider the petition.

Several expunction statutes set a time limit for the prosecutor to object after receiving an expunction petition. See G.S. 15A-145 (10 days); G.S. 15A-145.1 (10 days); G.S. 15A-145.4 (30 days): G.S. 15A-145.5 (30 days plus an additional 30 days for good cause); G.S. 15A-145.6 (30 days); G.S. 15A-145.8A(c) (30 days); G.S. 15A-145.9(d) (30 days). A failure to comply with these deadlines may not waive potential objections because other steps may not yet have been taken, such as record checks (discussed above) or notice to victims (discussed below). Compare G.S. 7B-3200(h) (providing that court may grant petition to expunge dismissal of juvenile petition if chief court counselor fails to file written objection within 10 days of service).

The certificate of relief statute, G.S. 15A-173.4, requires notice to the prosecutor at least three weeks before a hearing on a petition rather than setting a deadline based on service of the petition.

Some expunction statutes require notice to victims. See G.S. 15A-145.4(c); G.S. 15A-145.5(c1); G.S. 15A-145.8A(c); see also G.S. 15A-173.6 (certificate of relief). The notice requirements in North Carolina’s Crime Victims’ Rights Act do not apply to expunctions of adult proceedings because the statutes do not refer to those proceedings. See G.S. 15A-830 through G.S. 15A-839. Nor do the notice requirements in “Rights of Victims of Delinquent Acts,” Art. 20A of G.S. Ch. 7B, apply to expunctions of juvenile proceedings. See G.S. 7B-2051(a)(1) (requiring notice of certain proceedings in “this Subchapter,” Subchapter II, which does not include expunctions of juvenile proceedings under G.S. 7B-3200, within Subchapter III).

If the court grants an expunction petition, the clerk of court must file the granted petition with the AOC and must transmit the order to government agencies required by the order to expunge their records. G.S. 15A-150(b). The clerk was not required to give notice of automatic expunctions of dismissals and acquittals under G.S. 15A-146(a4), suspended until July 1, 2024, but the AOC could do so. G.S. 15A-150(b), (e).The AOC must provide a notice to delete records covered by the order to private entities with which the AOC has a licensing agreement for bulk extracts of criminal record data, and that entity in turn must notify entities to whom it provides bulk extracts of data. G.S. 15A-150(d).

The clerk of court must provide a certified copy of the order to the petitioner. G.S. 15A-150(b). The petitioner also may obtain a copy of the granted petition from the AOC. See G.S. 15A-151(a)(2) (amended by S.L. 2017-195 (S 445) to require the AOC, effective for expunction petitions filed on or after December 1, 2017, to maintain a file of granted petitions and provide them on request to the person who received the expunction); G.S. 15A-152 (allowing recipient of expunction to obtain confirmation of expunction from AOC for the purpose of certain litigation); see also AOC-G-260 (Jan. 2022) (application for certificate of verification of prior expunction).

If an expunction petition has been denied, changed circumstances may give a person grounds to file a subsequent petition to expunge the same matter. The expunction statutes do not address the filing of subsequent petitions, but a new petition would appear to be permissible if circumstances have changed and the petition does not merely seek to relitigate the issues decided by the court. (A person who disagrees with the denial of an expunction petition may seek appellate review, discussed below.) For example, a petitioner may be able to file a subsequent petition in the following instances.

• A petition was denied because it was filed before the end of a required waiting period and sufficient time has now passed.

• A petition was denied based on the statutes then in effect and the statutes now allow an expunction— for example, a prior felony conviction previously barred expunction of a dismissal and now is no longer a disqualification.

• A petition was denied because the petitioner had not fulfilled certain conditions and has now satisfied them—for example, payment of restitution.

The doctrines of collateral estoppel and res judicata should not preclude a subsequent petition in these instances. “Preclusion should not apply if there has been a change either in the facts or the governing rules.” Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 4425 (3d ed. Apr. 2023) (discussing issue preclusion and collateral estoppel); see also id. at § 4409 (discussing claim preclusion and res judicata; recognizing that continuing conduct may generate a new claim and a change in law may create new grounds).

Some relief statutes set a waiting period on filing a new petition after denial of an earlier one. See G.S. 14-208.12A(a3) (setting a waiting period of one year after denial of a petition to terminate sex offender registration); G.S. 14-415.4(g) (setting a waiting period of one year in most instances after denial of a petition for restoration of firearm rights). The expunction statutes do not include a waiting period on filing a subsequent petition; a person should be able to file a new expunction petition when circumstances have changed.

An additional question is whether a person may make a motion to modify an order of expunction or vacate a previous order and enter a broader or different order. For example, a person may have omitted matters that could have been expunged if included in the original petition. The procedure to follow for expunctions, which are considered criminal proceedings in North Carolina, is not entirely clear. See generally State v. J.C., 372 N.C. 203 (2019) (recognizing that expunctions are criminal); G.S. 15A-1411 through G.S. 15A-1422 (setting forth grounds and procedures for motion for appropriate relief); Julie Ramseur Lewis & John Rubin, North Carolina Defender Manual, Vol. 2 Trial, § 35.6B, Changes to Judgment Made After Expiration of Court Session (May 2020).

The grounds for modifying or setting aside civil judgments may be informative. See N.C. R. Civ. P. 60 (allowing party to make motion to set aside civil judgment for certain reasons, such as mistake and excusable neglect).

For a discussion of whether an agency affected by an expunction order, such as the SBI, may seek reconsideration of the order, see Appendixes: Frequently Asked Questions (Reconsideration and Enforcement of Expunction Orders).

The North Carolina appellate courts have held that the statutes governing appeals of criminal cases apply to expunctions and do not afford either the State or the petitioner an appeal of right of a superior court judge’s decision granting or denying an expunction petition. Rather, a party who disagrees with a ruling must file a petition for writ of certiorari with the Court of Appeals, which the court has the discretion to hear. State v. J.C., 372 N.C. 203 (2019) (dismissing State’s appeal); State v. Neira, 270 N.C. App. 359 (2020) (allowing petitioner’s petition for writ of certiorari and reversing trial judge’s denial of expunction).

A person may want to take steps to protect the confidentiality of any proceedings in the appellate courts. Such steps are necessary because an expunction order may not apply to appellate court records. Even if the expunction statutes apply, the filings and other information about the case will be public by the time the appellate court rules, undermining relief that the appellate court may order. For a discussion of potential steps a person may take to protect confidentiality, see John Rubin, Appeals of Expunction Decisions, N.C. Crim. L., UNC Sch. of Gov’t Blog (Oct. 10, 2017). [The Court of Appeals withdrew the opinion discussed in this blog post and substituted State v. J.C., 256 N.C. App. 199 (2017), aff’d, 372 N.C. 203 (2019); these later opinions do not affect the discussion of confidentiality in the blog post.]

No decisions have addressed review of a district court judge’s expunction decision, but similar principles probably apply. Both the State and petitioner may file a petition for writ of certiorari with the superior court, which that court has the discretion to hear. See N.C. Gen. R. Prac. Super. & Dist. Ct. 19; see generally Julie Ramseur Lewis & John Rubin, North Carolina Defender Manual, Vol. 2 Trial, § 35.7D, Certiorari of Trial Court Orders and Judgments (May 2020).

[1] Some statutes give the court some discretion by providing that the court “may” order an expunction if the person meets the statutory requirements. See infra Expunctions of Dismissals and Similar Dispositions: Dismissal or Finding of Not Guilty of Misdemeanors, Felonies, and Certain Infractions (affording discretion in some cases); Expunctions on Basis of Age: Nonviolent Felony Convictions for Offenses Committed before Age 18; Expunctions on Basis of Age: Older Nonviolent Misdemeanor and Felony Convictions. Some statutes also impose good conduct requirements but do not define the terms, affording the court some discretion in determining whether the person has satisfied the requirement. See, e.g., G.S. 15A-145 (requiring good behavior for two years after conviction to be expunged); G.S 15A-145.6 (requiring good moral character since conviction).

[2] Some statutes specifically require that petitioners use the AOC form petition for an expunction. See, e.g., G.S. 15A-146(c) (dismissals); G.S. 15A-147(a2) (identity theft and mistaken identity). Others state only that petitioners use the AOC form for obtaining a record check, see, e.g., G.S. 15A-145.5(c1)(4) (older nonviolent felonies and misdemeanors), but the record check is an integrated part of the AOC form petition.

[3] The filing fee clearly applies to a dismissal under a statutory deferred prosecution; whether it applies to a dismissal under a nonstatutory deferred prosecution agreement is not as clear. The AOC form for expunging dismissals, AOC-CR-287 (Dec. 2020), includes a check box for the petitioner or petitioner’s attorney to indicate whether any of the charges to be expunged were pursuant to a deferred prosecution or conditional discharge (discharge and dismissal); checking the box signifies that no charge was pursuant to a deferred prosecution or conditional discharge, in which case the form instructs the clerk not to assess a filing fee. For a discussion of the differences between the two types of deferred prosecutions, see infra Expunctions of Dismissals and Similar Dispositions: Types of Dismissals.