Microsite

Relief from a Criminal Conviction (2017 edition)

Charges Resulting from Identity Theft or Mistaken Identity

G.S. 15A-147 allows expunction of dismissals and findings of not guilty if the underlying charge against the person was the result of identity theft (see Table 7). The statute also authorizes an expunction when a conviction resulting from identity theft is set aside.

The statute also authorizes an expunction in cases of mistaken identity. G.S. 15A-147(g) defines “mistaken identity” as the erroneous arrest of a person for a crime as a result of some mistake on the part of a witness or law-enforcement officer about the identity of the person who committed the crime.

Reflecting that the petitioner did not engage in the charged conduct, the statute imposes no other requirements for an expunction—for example, no requirement of a conviction-free record. Thus, if a case is dismissed because of mistaken identity, a person with a prior felony conviction would be entitled to an expunction under this statute when he or she could not obtain an expunction of a dismissal under G.S. 15A-146.

G.S. 15A-147(a1) requires expunction in identity theft and mistaken identity cases, without a petition by the defendant, if the court or prosecutor dismisses the charge. In cases in which the defendant is found not guilty or a conviction is set aside as a result of identity theft or mistaken identity cases, the applicable Administrative Office of the Courts (AOC) form states that the defendant must file a petition to expunge. See AOC-CR-283, Order of Expunction under G.S. 15A-147(a1) (Identity Theft or Mistaken Identification) (Dec. 2017) (so stating in note to court).

The authority to expunge cases resulting from mistaken identity, as well as the requirement that dismissals in identity theft and mistaken identity cases be expunged without a petition, appear to apply to charges filed on or after December 1, 2015. See S.L. 2015-202 (S 233). The applicable AOC forms do not contain this limitation and authorize these expunctions without regard to the charging date. See AOC-CR-263 (Dec. 2017); AOC-CR-283 (Dec. 2017).

The situation is more complicated when the charged person is the person alleged to have committed the crime but he or she falsely uses another person’s name. If the charges name the wrong person, the State can dismiss the charges, which can then be expunged by the wrongly-named person under G.S. 15A-147, and recharge the defendant under the correct name. Alternatively, the State may be able to amend the charges to allege the defendant’s true name, which effectively dismisses the charges against the wrongly-named person and may provide the basis to expunge any records related to that person. See generally Jeff Welty, What to Do When a Defendant Is Charged under the Wrong Name, N.C. Crim. L., UNC Sch. of Gov’t Blog (Jan. 5, 2010). If the defendant is convicted under another person’s name, the State may be reluctant to set aside the conviction and instead may prefer to amend the records to reflect the defendant’s true name. Such a procedure effectively sets aside the conviction as to the wrongly-named person, which may provide the basis to expunge any records related to that person.

 

Table 7. Charges Resulting from Identity Theft or Mistaken Identity

Matters Subject to Expunction

Principal Restrictions on Expunction

Applicable Statutes and Forms

  • Finding of not guilty, dismissal, or setting aside of conviction of infraction, misdemeanor, or felony resulting from another person’s use of identifying information of named person without that person’s permission and, effective for charges filed on or after Dec. 1, 2015, resulting from mistaken identity
  • None