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Relief from a Criminal Conviction

Conviction of Controlled Substance, Drug Paraphernalia, and Toxic Vapor Offenses

This type of drug-related expunction applies to convictions (see Table 13 and Table 14). 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 new 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, however, the legislation made one potentially important change. The change is the same in both of the 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 may not 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 13. 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 13.

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. 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 lists the specific 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.[2]

In 2014, the General Assembly enacted G.S. 90-113.22A, making possession of marijuana drug paraphernalia a Class 3 misdemeanor. S.L. 2014-119 (H 369) (effective for offenses committed on or after Dec. 1, 2014). The legislation did not revise G.S. 90-96 to include G.S. 90-113.22A, but relief may be available because the General Assembly explicitly made a violation a lesser offense of G.S. 90-113.22, for which relief is available.

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. 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]

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 13. Conviction of Controlled Substance and Drug Paraphernalia Offenses

Matters Subject to Expunction

Principal Restrictions on Expunction

Applicable Statutes and Forms

  • Conviction on or after Jan. 1, 2012, of
    • misdemeanor possession of a controlled substance within Schedules I through VI of Article 5 of G.S. Ch. 90,
    • felony under G.S. 90-95(a)(3), or
    • possession of drug paraphernalia under G.S. 90-113.22
  • No prior conviction fora
    • felony,
    • offense under G.S. Ch. 90, or
    • offense under any federal or state statute for controlled substance in any schedule in G.S. Ch. 90 or paraphernalia in Art. 5B of G.S. Ch. 90
  • No prior expunction under G.S. 15A-145.2(c)
  • Petition may not be filed for at least 12 months after conviction
  • Completion of drug education program unless waived by court
  • Good behavior since conviction
  • Commission of offense when age 21 or younger
  • Conviction before Jan. 1, 2012, of
    • misdemeanor possession of a controlled substance in Schedules II through VI of G.S. Ch. 90, Art. 5,
    • felony possession of less than one gram of cocaine under G.S. 90-95(a)(3), or
    • possession of drug paraphernalia under G.S. 90-113.22
  • No prior conviction forb
    • offense under Article 5 of G.S. Ch. 90, or
    • offense under any federal or state statute for controlled substance in any schedule in Art. 5 or paraphernalia in Art. 5B of G.S. Ch. 90
  • No prior expunction under G.S. 15A-145.2(c)
  • Petition may not be filed for at least 12 months after conviction
  • Completion of drug education program unless waived by court
  • Good behavior since conviction
  • Commission of offense when age 21 or younger

a See discussion in text about whether the petitioner must be entirely conviction-free.

b See note a.


Table 14. Conviction of Toxic Vapor Offenses

Matters Subject to Expunction

Principal Restrictions on Expunction

Applicable Statutes and Forms

  • Conviction of misdemeanor under G.S. Ch. 90, Art. 5A (toxic vapors)
  • No prior conviction fora
    • offense under Art. 5 or 5A of G.S. Ch. 90, or
    • offense under any federal or state statute for substances in Article 5 or paraphernalia in Art. 5B of G.S. Ch. 90
  • No prior expunction under G.S. 15A-145.3(c)
  • Petition may not be filed for at least 12 months after conviction
  • Completion of drug education program unless waived by court
  • Good behavior since conviction.
  • Commission of offense when 21 or younger

a See discussion in text about whether the petitioner must be entirely conviction-free.

 


[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 G.S. 15A-145.2 a bar. See, e.g., supra Expunctions of Dismissals and Similar Dispositions: Dismissal or Finding of Not Guilty of Misdemeanors, Felonies, and Certain Infractions.

[2] An alternative interpretation is that G.S. 15A-145.2(c) permits the court to order an expunction if the petitioner does not have one of the specified convictions and requires the court to order an expunction if the petitioner has no prior convictions other than a traffic violation. This interpretation is based on the language in the statute that the court “may” order an expunction in the first instance and “shall” order an expunction in the second instance. In another context, the court of appeals held that the difference in language did not affect the age requirement in the statute—that the petitioner be under age 22 at the time of the offense. The court found that the age requirement was “woven throughout the statute as a whole” and was not discretionary. In re Spencer, 140 N.C. App. 776, 779 (2000). The court did not address the issue discussed here.

[3] The 2011 JRA also created an inconsistency in the list of disqualifying convictions. Revised G.S. 15A-145.2(c), which deals with expunctions of controlled substance and drug paraphernalia offenses, states that a person may not have a conviction under G.S. Chapter 90, while G.S. 90-96(e) continues to state that a person may not have a conviction under “this Article,” meaning Article 5 of G.S. Chapter 90. This guide opts for the broader language, which has the effect of making a conviction of any offense under Chapter 90 (such as a toxic vapors offense) a bar to an expunction, because the General Assembly affirmatively added the language in the 2011 JRA. The statutes on expunctions of toxic vapors offenses, G.S. 15A-145.3(c) and G.S. 90-113.14(e), do not contain this inconsistency.

[4] See In re Spencer, 140 N.C. App. 776 (2000) (interpreting language in G.S. 90-96(e), now a part of G.S. 15A-145.2(c), as imposing this requirement). Because it is so similar, G.S. 90-113.14(e), now a part of G.S. 15A-145.3(c), likely would be interpreted as including the same age requirement.