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Relief from a Criminal Conviction (2018 edition)

TRAFFIC VIOLATIONS AND DRIVING WHILE IMPAIRED (DWI): Can a DWI be expunged? Is a prior DWI conviction a bar to relief under statutes barring relief based on a conviction other than a traffic violation?

North Carolina’s statutes previously allowed an expunction of a misdemeanor DWI conviction in limited circumstances. Effective for petitions filed or pending on or after December 1, 2015, no statute allows expunction of a conviction of a DWI or other impaired driving offense as defined in G.S. 20-4.01(24a). S.L. 2015-150 (H 273). A person still may obtain an expunction of a dismissed charge and a certificate of relief for a conviction. Under statutes that bar relief because of a conviction other than a traffic violation, a misdemeanor DWI conviction does not appear to bar relief because the term “traffic violation” appears to encompass misdemeanor DWIs. The questions below address these matters.

What is a “traffic violation”? Does it include misdemeanor DWIs?

Several North Carolina relief statutes use the term “traffic violation,” but none define the term. No appellate decisions have addressed the issue. With those qualifiers, the soundest interpretation appears to be that the General Assembly intended for the term “traffic violation,” wherever it appears in the relief statutes, to include misdemeanor DWIs. Several interrelated reasons support this interpretation.

First, the term “traffic violation” most likely refers to violations of Chapter 20 of the North Carolina General Statutes, the chapter that the General Assembly dedicated to regulation of traffic matters. Chapter 20 provides a certain and readily identifiable set of offenses, allowing for consistent results. Some Chapter 20 violations do not involve traffic matters in the customary sense, and some statutes in other chapters could be considered as involving traffic matters, but it seems unlikely that the General Assembly intended for the courts to engage in a statute-by-statute and case-by-case determination of whether an offense is or is not a traffic violation. In light of the volume of expunction requests received by the courts each year, the General Assembly more likely intended the practical approach of using Chapter 20 as the source for traffic violations.

Second, in the context of North Carolina’s relief statutes, the term “traffic violation” refers to crimes, not infractions. All of the relief statutes except one address criminal offenses and employ terminology used for criminal offenses, such as determinations of “guilt” and “convictions.” Different terminology—determinations and findings of “responsibility”—applies to infractions. The one statute that refers to infractions involves a non-traffic matter that is no longer an infraction—possession of alcohol before December 1, 1999, in violation of G.S. 18B-302(i). See G.S. 15A-146 (allowing expunction of dismissal or finding of not responsible for infraction under previous version of G.S. 18B-302(i); statute was revised to allow this relief when General Assembly, in S.L. 1999-406 (H 1135), increased violation to misdemeanor).

Third, the wording of the relief statutes suggests that, when used, the term “traffic violation” refers to misdemeanors, not felonies. One of the earliest relief statutes, G.S. 15A-145, demonstrates this approach, allowing a person to obtain an expunction for conviction of an offense before age 18 if, among other things, the person “has not previously been convicted of any felony, or misdemeanor other than a traffic violation, under the laws . . . .” (emphasis added). The commas setting off the italicized phrase show that the General Assembly intended to link the terms “misdemeanor” and “traffic violation.” G.S. 15A-146, allowing expunction of dismissals, reflects the same approach. Originally, that statute barred relief if the person had been convicted of a felony or misdemeanor other than a traffic violation. S.L. 1979-61 (H 44). The General Assembly later revised G.S. 15A-146 to remove the misdemeanor conviction bar. The statute now bars relief for any felony conviction, with no exception for traffic violations. Later relief statutes are not as precise in their phrasing and punctuation but still link misdemeanors and traffic violations by placing the terms next to each other. For example, G.S. 15A-145.1 allows an expunction if, among other things, the person “has not previously been convicted of any felony or misdemeanor other than a traffic violation . . . .” Similar language appears in other expunction statutes (G.S. 15A-145.2(a)(1); G.S. 15A-145.3(a)(1); G.S. 15A-145.4(b)) as well as in the certificate of relief statute. G.S. 15A-173.2(a). More problematic are newer expunction statutes, such as G.S. 15A-145.5, which use the terms “felony” and “misdemeanor” in no particular order. G.S. 15A-145.5(c) states that a person may obtain an expunction if he or she “has no other misdemeanor or felony convictions, other than a traffic violation.” The statute reverses the order, in subdivision (1) of G.S. 15A-145.5(c), stating that the petition must show that the person “has not been convicted of any other felony or misdemeanor, other than a traffic violation . . . .” In this guide’s view, this ambiguous phrasing should be construed in light of the General Assembly’s overall approach—that the term “traffic violation” refers to misdemeanors only. See 3 Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Construction §§ 47:15, 47:35 (7th ed., Nov. 2016) (observing that courts have disregarded or transposed punctuation to effectuate legislative intent as well as transposed words or phrases where necessary to give a statute meaning, make it consistent throughout, or correct inadvertent phrasing).

Fourth, a DWI is a misdemeanor violation of Chapter 20. See G.S. 20-138.1(d) (so stating). Unlike most misdemeanors, a DWI does not have a specific classification, but in other contexts courts have treated it as a Class 1 misdemeanor. See State v. Armstrong, 203 N.C. App. 399 (2010); State v. Gregory, 154 N.C. App. 718 (2002). Gregory, on which Armstrong relies, was decided before cases holding that an offense’s maximum sentence is determined by the maximum sentence that the particular defendant could receive, not the maximum for the offense generally. See, e.g., Blakely v. Washington, 542 U.S. 296 (2004) (establishing general rule); State v. Speight, 359 N.C. 602 (2005) (applying Blakely to DWI sentencing), vacated on other grounds, 548 U.S. 923 (2006). As a result of those decisions, a DWI conviction at Levels Three, Four, or Five, which carries a maximum sentence from 60 days to six months (see G.S. 20-179(i), (j), (k)), might be considered a Class 2 misdemeanor. See G.S.14-3(a) (stating that offense without specific classification under structured sentencing is Class 1 misdemeanor if maximum punishment is more than six months and Class 2 misdemeanor if maximum punishment is more than 30 days and not more than six months). Such an interpretation would not change the analysis here. No cases have specifically addressed the classification of a DWI sentenced at Aggravated Level One, which carries a sentence of up to three years. See G.S. 20-179(f3). Although the maximum sentence is beyond the typical outer limit for misdemeanors (two years), it may be considered a Class 1 misdemeanor under the above authorities.

Last, the North Carolina relief statutes do not exempt DWIs from the term “traffic violation.” Recent legislation, discussed below, precludes expunction of DWI convictions, but it does not define traffic violation in a way that excludes DWIs. Compare People v. Bosma, 465 N.W.2d 24 (Mich. Ct. App. 1990) (finding that impaired driving is traffic offense for the purpose of applying Michigan’s expunction statutes) with State v. Yackley, 539 N.E.2d 1118 (Ohio 1989) (recognizing that Ohio expunction statutes provide that “minor traffic convictions” are not a bar to relief and that they specifically make impaired driving a bar); see also G.S. 15A-1340.14(b)(5) (providing that prior record level under structured sentencing does not include a prior conviction of a misdemeanor traffic offense under Chapter 20 of the General Statutes except for a prior misdemeanor conviction for impaired driving, commercial impaired driving, and misdemeanor death by vehicle, an offense based on impaired driving).

What relief is available for DWIs?

Three statutes allow relief for charges and convictions of misdemeanor traffic violations: G.S. 15A-145.5 (expunction of older nonviolent felonies and nonviolent misdemeanors), G.S. 15A-146 (expunction of dismissals), and G.S. 15A-173.2 (certificate of relief). The statutes generally allow this result because the list of offenses subject to relief is broad enough to cover traffic violations and only certain traffic violations are excluded from the list. Recent legislation, discussed below, eliminates the possibility of an expunction of a DWI conviction under G.S. 15A-145.5 but does not affect the availability of relief under the other two statutes.

Relief under G.S. 15A-145.5. This statute allows for the expunction of older convictions for “nonviolent” misdemeanors and felonies. The meaning of a nonviolent offense is determined by what it is not. G.S. 15A-145.5(a) defines an offense as nonviolent if it is not a Class A through G felony, a Class A1 misdemeanor, or one of a number of offenses specified in the statute, such as an offense requiring sex offender registration. Consequently, Class H and I felonies and Class 1 through 3 misdemeanors can be expunged as long as they are not among the offenses specifically excluded from relief. See generally Kyprianides v. Martin, 234 N.C. App. 665 (2014) (unpublished) (finding that because conviction for misdemeanor cruelty to animals was not Class A1 misdemeanor and did not fall into excluded categories, it could be expunged under G.S. 15A-145.5).

Previously, a misdemeanor DWI conviction was not on the list of excluded offenses in G.S. 15A-145.5. The only traffic offenses on the excluded list were felony offenses involving a commercial vehicle. Recent legislation, S.L. 2015-150 (H 273), revised G.S. 15A-145.5, among other statutes, to disallow expunctions of DWI convictions regardless of their age. The act applies to petitions filed or pending on or after December 1, 2015.

Relief under G.S. 15A-146 and G.S. 15A-173.2. G.S. 15A-146 allows expunctions of dismissals and acquittals, and G.S. 15A-173.2 authorizes certificates of relief following convictions. Neither excludes traffic violations, including DWI charges and convictions, from relief.

Other statutes. G.S. 15A-145.4 allows for expunctions of convictions for “nonviolent” felonies committed before age 18. Because the statute limits relief to Class H and I felonies, it does not allow expunction of a misdemeanor DWI conviction. Effective for petitions filed or pending on or after December 1, 2015, S.L. 2015-150 (H 273) revised G.S. 15A-145.4, among other statutes, to specifically disallow an expunction of any felony offense involving impaired driving.

Previously, G.S. 15A-145 was unclear about the availability of an expunction for a misdemeanor DWI conviction. It allows an expunction of a misdemeanor other than a traffic violation if committed before age 18. Under the approach suggested here, the statute would not allow expunction of a misdemeanor DWI conviction because it is a traffic violation. A legislative change in 2007 created some uncertainty, however. In 2007, the General Assembly amended G.S. 15A-145(c) to require DMV to expunge a civil license revocation resulting from a criminal charge if the court expunges the misdemeanor conviction. S.L. 2007-509 (S 301). The term “civil license revocation” is generally understood to refer to the immediate license revocation required by G.S. 20-16.5 when a person is charged with a DWI or other implied-consent offense. The General Assembly appears to have enacted the provision in response to an opinion by the North Carolina Attorney General that an expunction of a dismissal, under G.S. 15A-146, does not require DMV to expunge a civil license revocation. See Opinion Letter by North Carolina Attorney General to Mike Bryant, Driver License Section, N.C. Division of Motor Vehicles (June 13, 2001). The 2007 legislation amended G.S. 15A-146 to require DMV to expunge a civil license revocation as a result of a criminal charge that was dismissed or for which the defendant was acquitted if the court orders expunction of the criminal charge. The change to G.S. 15A-146 presented no difficulties because that statute clearly allows the court to order an expunction of a dismissal of a DWI; it therefore makes sense for the order to extend to other records resulting from the dismissed charge, such as a civil license revocation. The change to G.S. 15A-145, however, suggested the possibility that although G.S. 15A-145 generally bars expunction of a traffic violation, it made an exception for and allowed expunction of a misdemeanor DWI.

S.L. 2015-150 (H 273) resolved this ambiguity. It amended G.S. 15A-145 to provide that “[n]othing in this section shall be interpreted to allow the expunction of any offense involving impaired driving as defined in G.S. 20-4.01(24a).”

Does a misdemeanor DWI conviction bar relief?

Whether a DWI conviction bars relief is a simpler question to address. All of the expunction statutes that bar relief because of a prior misdemeanor conviction provide that a traffic violation is not a bar. The certificate of relief statute has the same wording. None of the statutes define traffic violation in a way that excludes misdemeanor DWI convictions. A misdemeanor DWI conviction therefore should not be a bar to relief under the above reasoning.