Relief from a Criminal Conviction (2023 Edition)
Discharge and Dismissal of Controlled Substance, Drug Paraphernalia, and Toxic Vapor Offenses
This type of drug-related expunction involves offenses for which a person has received a discharge and dismissal within the meaning of the applicable statutes (see Table 12 and Table 13). G.S. 90-96(a) and (a1) and the related expunction provisions in G.S. 15A-145.2(a) address controlled substance and drug paraphernalia offenses (although drug paraphernalia offenses themselves are addressed in a different article in G.S. Chapter 90). The discharge and dismissal provisions in G.S. 90-113.14(a) and (a1) and the related expunction provisions in G.S. 15A-145.3(a) address toxic vapor offenses. The discharge, dismissal, and expunction provisions for the two sets of offenses are discussed together because the requirements are similar. To the extent differences exist, they are shown in the tables below.
In addition, two different discharge and dismissal opportunities are available for each set of offenses—under subsections (a) and (a1) of G.S. 90-96 for controlled substance and drug paraphernalia offenses and under subsections (a) and (a1) of G.S. 90-113.4 for toxic vapor offenses. (A person also may be eligible for a discharge and dismissal of these offenses under the general discharge and dismissal statute, G.S. 15A-1341(a4), and for an expunction of either type of discharge and dismissal under the general dismissal expunction statute, G.S. 15A-146. For a discussion of the impact of a discharge and dismissal and its eligibility for expunction, see supra Expunctions of Dismissals and Similar Dispositions: Types of Dismissals.)
The 2009 Consolidation Act, S.L. 2009-577 (H 1329), moved the expunction procedures from G.S. Chapter 90 to G.S. 15A-145.2(a) and G.S. 15A-145.3(a). The statutes in G.S. Chapter 90 remain relevant because they contain the discharge and dismissal requirements, which are a precondition for expunction under G.S. 15A-145.2 and G.S. 15A-145.3. The 2009 Consolidation Act also made an important clarification to subsection (a1) of G.S. 90-96 and G.S. 90-113.4 by explicitly providing, in those subsections and in G.S. 15A-145.2(a) and G.S. 15A-145.3(a), that a person may receive a discharge, dismissal, and expunction for offenses covered by those statutes. Previously, subsection (a1) of G.S. 90-96 and G.S. 90-113.14 referred to discharge and dismissal but did not specify any procedure for implementing that disposition and did not mention expunction.
The General Assembly has expanded the eligibility for a discharge and dismissal in recent years and, as a result, the opportunities for an expunction. The changes to the drug-related statutes are incorporated in the accompanying tables. Although the expansion of the discharge and dismissal statutes remain significant to a person’s eligibility for relief, the expunction procedures in those statutes may no longer matter with the expansion in 2017 of expunctions of dismissals under G.S. 15A-146. See supra Expunctions of Dismissals and Similar Dispositions: Dismissal or Finding of Not Guilty of Misdemeanors, Felonies, and Certain Infractions. Previously, a prior expunction barred an expunction of a dismissal under G.S. 15A-146, but a person could still obtain an expunction of a discharge and dismissal under the drug-related statutes because they did not make a prior expunction a bar. Now that a person may obtain unlimited expunctions of dismissals under G.S. 15A-146, resort to an expunction under the drug-related statutes, which contain restrictive age and prior conviction criteria, may no longer be necessary. The accompanying footnote discusses the prior conviction requirement in the drug-related statutes.[1]
As in many of the expunction statutes, G.S. 15A-145.2 and G.S. 15A-145.3 treat traffic violations differently than other criminal convictions. Under both statutes, a conviction of a traffic violation is not a bar to expunction of other convictions. This guide takes the position that the term “traffic violation,” as used in the expunction statutes, means any misdemeanor under Chapter 20 of the General Statutes unless otherwise specified. The meaning of traffic violation, including impaired driving, is discussed further in Appendixes: Frequently Asked Questions (Traffic Violations and Driving While Impaired (DWI)).
There is one Administrative Office of the Courts (AOC) form for expunction of a discharge and dismissal and four AOC forms for a discharge and dismissal under G.S. 90-96 (whether under subsection (a) or (a1)). The latter four forms reflect differences in the applicable conditions of probation, which depend on the date the person committed the offense; all four forms contain the same criteria for obtaining a discharge and dismissal. There is an AOC form for expunction of a discharge and dismissal under G.S. 90-113.14 but no form for the discharge and dismissal itself.
Table 12. Discharge and Dismissal of Controlled Substance and Drug Paraphernalia Offenses under G.S. 90-96(a) and (a1)
Matters Subject to Expunction | Principal Restrictions on Expunction | Applicable Statutes and Forms |
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Table 13. Discharge and Dismissal of Toxic Vapor Offenses
Matters Subject to Expunction | Principal Restrictions on Expunction | Applicable Statutes and Forms |
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[1] The 2010 Technical Changes Act, S.L. 2010-174 (H 726), repealed subdivision (3) of G.S. 15A-145.2(a) and G.S. 15A-145.3(a) and added subdivision (3a) in its place. The principal effect of the change was to eliminate the requirement, in repealed subdivision (3), that petitioners obtain affidavits from local court and law enforcement personnel attesting to the absence of prior disqualifying convictions. Instead, under subdivision (3a), petitioners must obtain a criminal record check on a form issued by the North Carolina Administrative Office of the Courts (AOC). The repeal of subdivision (3) had the further effect of eliminating broad language disqualifying a person from obtaining an expunction of a discharge and dismissal if he or she was convicted of a felony or misdemeanor before deferral of the proceedings. Subdivision (1) in both G.S. 15A-145.2(a) and G.S. 15A-145.3(a) still requires an affidavit by the petitioner that he or she “has been of good behavior during the period of probation since the decision to defer further proceedings on the offense in question and has not been convicted of any felony or misdemeanor other than a traffic violation.” The italicized provision could be read as a free-standing requirement that the person be conviction-free (other than for a traffic violation). An alternative interpretation is that the language should be read in conjunction with the good behavior condition—that is, the person must be of good behavior and conviction-free since the decision to defer. Cf. 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Construction § 47:26 (7th ed., Nov. 2023) (observing that where a sentence contains several antecedents and several consequents, courts apply the words to the subjects to which, by context, they seem most properly to relate). Later-enacted expunction statutes may support the latter interpretation, stating more clearly that the petitioner must be of good moral character and conviction-free since disposition of the case. See G.S. 15A-145.6(c)(1), (f)(2) (expunction of prostitution offense); see generally supra Overview: Interpreting Relief Statutes (observing that later statutes may provide a guide to the General Assembly’s intent in earlier statutes). But see G.S. 15A-145.7 (repeating ambiguous phrasing for expunction of discharge and dismissal of threats of mass violence).