Relief from a Criminal Conviction (2023 Edition)
Dismissal or Finding of Not Guilty of Misdemeanors, Felonies, and Certain Infractions
G.S. 15A-146 allows expunction of dismissals and findings of not guilty of felony or misdemeanor charges and of findings of not responsible for certain infractions (see Table 5). A dismissal, whether by the State or by the court, may be expunged. For a discussion of the types of dispositions that constitute dismissals subject to G.S. 15A-146, see supra Expunctions of Dismissals and Similar Dispositions: Types of Dismissals.
G.S. 15A-146 has three categories of expunctions of dismissals and findings of not guilty:
- dismissals in cases involving a single charge;
- dismissals in cases involving multiple charges; and
- findings of not guilty in cases involving a single charge or multiple charges.
An individual or district attorney may petition for an expunction in all three categories. A judge may grant a petition for an expunction without a hearing. See G.S. 15A-146(a6); see also Overview: Procedure to Obtain an Expunction (Hearings).
For dismissals, findings of not guilty, and findings of not responsible for infractions on or after December 1, 2021, the General Assembly made expunctions automatic, without a petition, in many cases. See G.S. 15A-146(a4). The General Assembly postponed automatic expunctions until July 1, 2024, however; and once underway, automated expunctions will not apply to all dispositions and will not apply to dispositions before December 1, 2021. It therefore remains important to understand the requirements for petitioning for an expunction.
The basic eligibility criteria to obtain an expunction are the same for the three categories of dismissals and acquittals. For all three categories, G.S. 15A-146 no longer contains a bar to relief based on prior convictions, whether for misdemeanors or felonies.[1] Nor does G.S. 15A-146 contain a bar to relief based on prior expunctions, whether obtained under G.S. 15A-146 or other statutes.[2] An expunction of a dismissal under G.S. 15A-146 also does not affect the availability of expunctions under other statutes except for G.S. 15A-145.4 (nonviolent felony before age 18) and G.S. 15A-145.6 (prostitution offenses). Continuing to bar relief under those statutes because of a prior expunction under G.S. 15A-146 may have been a legislative oversight; it seems inconsistent with the right to unlimited expunctions of dismissals. Until revised, a person may first need to obtain an expunction under G.S. 15A-145.4 or G.S. 15A-145.6, then obtain an expunction under G.S. 15A-146.
The three categories of expunctions differ in some respects. For dismissals in cases involving a single charge, expunction is mandatory. See G.S. 15A-146(a).
For dismissals in cases involving multiple charges, expunction is mandatory if all charges are dismissed. If any charge resulted in a conviction on the day of dismissal or has not reached final disposition, the court may order expunction of the dismissed charge. See G.S. 15A-146(a1). For example, a prosecutor may dismiss one or more charges as part of a plea agreement in which the person pleads guilty to other charges. If a person pleads guilty or is found guilty to a lesser charge, the greater charge also would be terminated. Under State v. Lebedev, ___ N.C. App. ___, 895 S.E.2d 455 (2023), however, the greater charge is not eligible for expunction unless the court or prosecutor expressly dismisses that charge. Compare G.S. 15A-266.3A(h)(1)c. (mandating expunction of DNA samples taken on arrest for felony if person is convicted of lesser misdemeanor for which DNA samples are not required). If the court or prosecutor expressly dismisses the greater charge, that charge should be eligible for expunction under G.S. 15A-146(a1). The record would be clearest if, following dismissal of the greater charge, the prosecutor refiles a new charge for the lesser offense, with a new case number; however, a written notice of dismissal or other record entry of dismissal of the greater charge, without a new filing, may be sufficient under the reasoning of Lebedev.[3]
For findings of not guilty in cases involving a single charge or multiple charges, expunction is mandatory for any charge for which a person is found not guilty once all charges have reached final disposition. G.S. 15A-146(a2). For example, if a person is charged with multiple offenses and is convicted of some offenses and found not guilty of other offenses, expunction is mandatory for the offenses for which the person is found not guilty. Or, if a person is charged with one offense, is found guilty of that offense, and is convicted of a lesser offense, expunction of the greater charge appears to be mandatory under G.S. 15A-146(a2). Under Lebedev, however, conviction of a lesser charge, without an express finding of not guilty of the greater charge, may be insufficient to require expunction of the greater charge.
In cases involving conviction of a lesser charge without an express dismissal or finding of not guilty of the greater charge, a person may still be able to obtain an expunction of the greater charge if the person becomes eligible for expunction of the conviction of the lesser charge. The availability of an expunction of a conviction of a lesser charge, and with it the accompanying greater charge, depends on the applicable expunction statute for that conviction.
If the court orders expunction of one charge within a case and does not order expunction of the entire case, the clerk should expunge those portions of the case affected by the order.[4]
Effective for charges disposed of on or after December 1, 2021, G.S. 15A-146(a4) provides for automatic expunction of dismissals and acquittals. The General Assembly postponed automatic expunction until July 1, 2024, to address technical concerns that arose during implementation. As currently written, the statute provides for automatic expunction, without a petition, if all charges in the case are dismissed by the prosecutor without leave (for charges that may be dismissed with “leave,” see G.S. 15A-932); all charges are dismissed by the court; or all charges result in a finding of not guilty or not responsible. The statute covers a broader range of cases than expunctions by petition in the sense that it provides for expunction of charges of infractions as well as crimes. G.S. 15A-146(a4) includes the qualification that no case with a felony charge that was dismissed pursuant to a plea agreement is subject to automatic expunction. The automatic expunction statute imposes no other preconditions—no waiting period, no limit on the number of expunctions, and no disqualification based on prior convictions, whether for a felony or misdemeanor. In cases in which automatic expunction does not apply, a person may still petition for expunction, as described above.
G.S. 15A-150(b) generally requires the clerk of court to notify law enforcement and other agencies of expunction orders, but this requirement does not apply to automatic expunctions. See also G.S. 15A-146(c) (stating that notice requirements do not apply). The Administrative Office of the Courts may provide notice of automatic expunctions to other agencies. G.S. 15A-150(b).
Table 5. Dismissal or Finding of Not Guilty of Misdemeanors, Felonies, and Certain Infractions
Matters Subject to Expunction | Principal Restrictions on Expunction | Applicable Statutes and Forms |
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[1] The statute formerly barred a person from obtaining an expunction of a dismissal if previously convicted of a misdemeanor or felony, but the General Assembly eliminated the felony conviction bar in 2020 and the misdemeanor conviction bar in 1991. S.L. 2020-35 (S 562); S.L. 1991-326 (S 744); see also In re Kearney, 174 N.C. App. 213 (2005) (holding in case in which assault and battery charge was dismissed, and defendant was convicted of misdemeanor assault inflicting serious injury, that defendant was entitled to expunction of dismissal under G.S. 15A-146 then in effect, although not of conviction).
[2] Previously, a person was ineligible for an expunction under G.S. 15A-146 if he or she had received a prior expunction under one of several statutes. See also In re Robinson, 172 N.C. App. 272, 274–75 (2005) (stating under previous version of statute that “expungement is only available where the trial court finds that the person has not previously received an expungement”). The previous statute allowed a person to obtain an expunction of multiple dismissals if the alleged offenses occurred during the same 12-month period or were disposed of at the same term of court. See also Opinion Letter by North Carolina Attorney General to James J. Coman, SBI Director (Oct. 13, 1995) (stating that a person could obtain an expunction of multiple offenses under the previous version of G.S. 15A-146 if they arose out of the same transaction or occurrence or were consolidated for trial or judgment). Legislation enacted in 2017 eliminated the prior expunction bar from G.S. 15A-146, effective for petitions filed on or after December 1, 2017. S.L. 2017-195 (S 445).
[3] The absence of an express dismissal of the greater charge was the critical reason that the court in Lebedev found that the greater charge was not eligible for expunction. The court added that a dismissal results in no criminal or civil liability against the defendant. In this guide’s view, this language should not be construed as requiring dismissal of all charges for a defendant to be eligible for an expunction under G.S. 15A-146(a1). Such an approach would be contrary to the statute’s specific language, which authorizes expunction of dismissed charges when the defendant is convicted of other charges in the case. Accordingly, where a defendant is convicted of one or more offenses in a case, and thus has incurred some criminal liability, Lebedev requires an express dismissal of the other charges in the case, including greater charges, for the defendant to obtain an expunction of those charges.
[4] According to the North Carolina Administrative Office of the Courts (AOC), the clerk of court should obliterate all references to the expunged charge in the physical records of the case. Thus, the clerk would obliterate the felony charge from the original criminal process, the release order, and other records. The AOC also advises that the clerk should delete the entire case from the Automated Criminal Information System (ACIS) and reenter the case under the same case number but limited to the charges that were not expunged. See N.C. Administrative Office of the Courts, Expunction Guide for Clerks at 21–22 (Mar. 2020).