This type of drug-related expunction applies to convictions (see Table 15 and Table 16). The expunction procedures for offenses in G.S. 90-96(e) and G.S. 15A-145.2(c), which cover controlled substances and drug paraphernalia, and G.S. 90-113.14(e) and G.S. 15A-145.3(c), which cover toxic vapor offenses, are discussed together because the requirements are similar. Differences are reflected in the accompanying tables.

The 2009 Consolidation Act, S.L. 2009-577 (H 1329), moved the key expunction provisions from G.S. Chapter 90 to G.S. 15A-145.2(c) and G.S. 15A-145.3(c); it did not make any new matters in this category subject to expunction. In transferring the language, the legislation made one potentially important change. The change is the same in both statutes; for ease of discussion, G.S. 15A-145.2(c) is used to explain the impact of the change. Former G.S. 90-96(e) stated that a person could obtain one expunction under “this section.” The term “section” is generally construed to refer to the statute number, in this instance G.S. 90-96. New G.S. 15A-145.2(c) states that a person may obtain one expunction under “this subsection.” The term “subsection” is generally construed to refer to the lettered provision of a statute, in this instance G.S. 15A-145.2(c). The change has two potential effects. One, an expunction under other subsections of G.S. 15A-145.2 does not appear to preclude an expunction under G.S. 15A-145.2(c).[1] Two, if the statute is construed literally, a prior expunction under G.S. 90-96(e) may not be a bar to an expunction under G.S. 15A-145.2(c).

The 2011 JRA, S.L. 2011-192 (H 642), modified the criteria for expunction of controlled substance and drug paraphernalia convictions. (It did not modify the toxic vapor expunction provisions.) On the one hand, it broadened eligibility by expanding the offenses subject to expunction. Under the revised statutes, a person may obtain an expunction of any felony controlled substance possession conviction, not just a conviction of felony possession of less than one gram of cocaine, as well as an expunction of misdemeanor possession of controlled substance and misdemeanor drug paraphernalia convictions. On the other hand, the 2011 JRA narrowed eligibility by expanding the prior offenses that bar an expunction, shown in Table 15. The changes apply to pleas and findings of guilt on or after January 1, 2012. If a person was convicted of an offense before that date, he or she is subject to the previous criteria for an expunction, also shown in Table 15.

In revising the list of disqualifying convictions for expunctions of controlled substance and drug paraphernalia convictions, the 2011 JRA did not fully address inconsistent language about the significance of prior convictions. G.S. 15A-145.2(c) states, toward the end of that subsection, that the petitioner must not have been convicted of any felony or misdemeanor other than a traffic violation under North Carolina law. The applicable Administrative Office of the Courts (AOC) form, AOC-CR-266, includes this language as a condition for expunction. The language is difficult to reconcile, however, with the opening language of G.S. 15A-145.2(c), which specifies the prior offenses that bar an expunction. The corresponding provisions of G.S. 90-96(e) include the same list of disqualifying convictions and contain no language requiring that the person be entirely conviction-free. Other changes made by the 2011 JRA suggest that the General Assembly did not intend to require that the petitioner be entirely conviction-free. In addition to modifying the list of disqualifying convictions at the beginning of G.S. 15A-145.2(c), the 2011 JRA inserted language stating that if the court determines, among other things, “that the petitioner has no disqualifying previous convictions as set forth in this subsection . . .,” it must enter an order of expunction. If the General Assembly had intended for all prior felony or misdemeanor convictions (other than a traffic violation) to bar relief, it would have been unnecessary to refer specifically to the “disqualifying previous convictions” identified in the subsection. The ambiguity arises from the General Assembly’s failure to delete the language, several lines later, that the court must find that the person has no prior felony or misdemeanor convictions other than for a traffic violation. This guide takes the view that the specific provisions on disqualifying convictions better reflect the General Assembly’s intent and should be given effect. See generally supra Overview: Interpreting Relief Statutes. Other interpretations are possible.[2]

G.S. 15A-145.3(c) on expunction of toxic vapor convictions, although not modified by the 2011 JRA, contains a similar inconsistency. It enumerates the disqualifying prior convictions at the beginning of the subsection but also states toward the end that a person may not have any prior convictions other than a traffic violation under North Carolina law. The corresponding provisions of G.S. 90-113.14(e) include the same list of specific disqualifying convictions and no language requiring that the person be entirely conviction-free.[3]

In a technical corrections act in 2017, the General Assembly amended G.S. 90-96(e) to make a conviction of G.S. 90-113.22A, misdemeanor possession of marijuana paraphernalia, eligible for an expunction. See S.L. 2017-102, sec. 38 (H 229). The change is effective July 12, 2017, meaning it applies to petitions filed on or after that date regardless when the offense or conviction occurred. The act did not make a conforming change to G.S. 15A-145.2(c), which governs expunction procedures for G.S. 90-96(e). An expunction may still be available, however, either because G.S. 90-96(e) reflects the General Assembly’s intent to allow an expunction of such a conviction or because G.S. 90-113.22A states that a violation is a lesser offense of G.S. 90-113.22, for which an expunction is available.

For both types of expunctions, the person must have been 21 years of age or younger when he or she committed the offense in question.[4]

Table 15. Conviction of Controlled Substance and Drug Paraphernalia Offenses

Table 16. Conviction of Toxic Vapor Offenses

 [1] However, an expunction under any subsection of G.S. 15A-145.2 may bar an expunction under another statute if the other statute makes a prior expunction a bar.  See Expunctions on Basis of Age: Nonviolent Felony Convictions for Offenses Committed before Age 18.