Relief from a Criminal Conviction (2023 Edition)

The answer depends on the offense and type and date of disposition. Convictions for felonies or misdemeanors subject to registration are not eligible for expunction, whether or not the person is currently required to register. Convictions for offenses committed before the law made them subject to registration may be subject to expunction. A dismissal or diversion (deferred prosecution or discharge and dismissal) is subject to expunction.

Felony and misdemeanor convictions. The only statutes that potentially could apply to felony convictions subject to sex offender registration are G.S. 15A-145.4, which allows expunction of felonies committed before age 18; G.S. 15A-145.5, which allows expunction of older felonies and misdemeanors; G.S. 15A-145.8A, which allows expunction of adult convictions of juveniles; and G.S. 15A-145.9, which allows expunction of convictions of human trafficking victims. All of these statutes expressly exclude offenses subject to registration, however, “whether or not the person is currently required to register.” Thus, the statutes bar expunctions both for people who are currently required to register and for people who have completed their registration requirements.

One statute, G.S. 15A-145, allowed expunction of a conviction of a misdemeanor subject to sex offender registration, such as misdemeanor sexual battery under G.S. 14-27.5A, if the offense was committed before age 18. The reason is that the statute contained no exclusion for offenses subject to sex offender registration. Effective for petitions filed on or after December 1, 2021, G.S. 15A-145 was amended to exclude offenses subject to registration, again “whether or not the person is currently required to register.” (If a person obtained an expunction before the law was changed, it may require removal of registration information and, if still in place, termination of registration obligations. For further information and authority, contact the author at rubin@sog.unc.edu.)

The statutes may not bar expunctions for people who were never required to register but were convicted of an offense that would require registration if committed now. In State v. J.C., 372 N.C. 203 (2019), the trial judge granted an expunction under G.S. 15A-145.5 of a 1987 conviction for indecent liberties, before the registration statutes took effect. The North Carolina Court of Appeals and Supreme Court upheld the order without addressing the merits, holding that the State did not have a statutory right of appeal. For similar reasons, if a person satisfies the other criteria for an expunction, he or she may be able to expunge a conviction of a sexual battery offense committed on or after December 1, 2003, when the General Assembly created the offense (S.L. 2003-252 (S 912)), and before December 1, 2005, when the General Assembly made sexual battery an “offense requiring registration” for offenses committed on or after that date. S.L. 2005-130 (H 1209). 

Other statutes use different language to indicate whether “pre-registration” offenses trigger consequences. Compare G.S. 14-415.4(a)((2)d. (disallowing restoration of firearm rights for an offense “for which the offender must register,” which indicates that the disqualification applies only if the person currently must register) with G.S. 15A-1345(b1) (providing that a probationer who is arrested for a probation violation and is determined to be a danger is not entitled to release pending a revocation hearing if he or she has been convicted of an offense “that would have required registration but for the effective date of the law establishing the Sex Offender and Public Protection Registration Program,” which indicates that the restriction applies to pre-registration offenses). 

If not expunged, a pre-registration offense counts as a prior offense in determining whether a person is a recidivist and subject to lifetime registration on conviction of a subsequent offense. See State v. Wooten, 194 N.C. App. 524 (2008). Effective for records expunged on or after July 1, 2018, an expunged conviction can be used to determine a person’s prior record level at sentencing and certain other purposes if the person is convicted of a subsequent offense. See G.S. 15A-151.5, discussed supra in Overview: Effect of Expunction (Use of Expunged Information). The statute does not allow use of an expunged conviction to establish that the person is a recidivist if convicted of a subsequent offense requiring registration.

G.S. 15A-145.4(a)(5), G.S. 15A-145.5(a)(4), and G.S. 15A-145.9(a)(1) bar expunction of convictions of some offenses of a sexual nature that are not subject to registration. Offenses that are not excluded from relief and are not subject to registration, such as crime against nature, are subject to expunction under these statutes if the person otherwise meets the criteria for expunction.

Dismissals and diversions. G.S. 15A-146 contains no restriction on the types of charges subject to expunction if dismissed. It therefore allows expunction of dismissals of charges that would require sex offender registration if they resulted in a conviction.

A person may obtain a deferred prosecution or discharge and dismissal for an offense subject to sex offender registration if it is a misdemeanor or Class H or I felony; the statutes contain no exclusion for such offenses. G.S. 15A-1341(a1), (a4). These dispositions should be subject to expunction as dismissals under G.S. 15A-146. See supra Expunctions of Dismissals and Similar Dispositions: Types of Dismissals. Neither a deferred prosecution nor a discharge and dismissal constitutes a final conviction; therefore, expunction of those dispositions creates no conflict with any registration obligations. See generally Walters v. Cooper, 226 N.C. App. 166 (2013), aff’d per curiam, 367 N.C. 117 (2013) (holding that PJC, not being a final conviction because the court has not entered judgment, does not trigger registration obligations). Decisions from other states requiring registration for similar dispositions are not applicable to North Carolina because their statutes specifically require registration. See State v. Perkins, 13 P.3d 344 (Idaho Ct. App. 2000) (requiring registration in case in which court withheld judgment and dismissed charges following a successful period of probation because Idaho statutes require registration for person adjudicated guilty, whether judgment is entered or withheld).

Wrongful registration information. If a person believes that he or she is wrongfully being required to register—for example, the person believes the offense is not one subject to registration—the person may file a declaratory relief action to terminate registration obligations. If the court grants declaratory relief and holds that the person is not required to register, the court may have the authority to order the expunction of erroneously obtained registration information. See supra Sex Offender Registration and Monitoring Obligations: General Considerations for Sex Offender Requirements.