G.S. 15A-1341(a1) authorizes a deferred prosecution for any misdemeanor and any Class H or I felony (see Table 6). Effective for orders placing a person on probation on or after December 1, 2015, G.S. 15A-1341(a) provides that a person may not receive a deferred prosecution for an impaired driving offense under G.S. 20-138.1. S.L. 2015-150 (H 273). The statute does not contain or refer to specific expunction procedures, but a deferred prosecution should be subject to expunction under the general expunction statute on dismissals, G.S. 15A-146. (For a discussion of the impact of a deferred prosecution and its eligibility for expunction, see supra Expunctions of Dismissals and Similar Dispositions: Types of Dismissals.)

There is not a specific Administrative Office of the Courts (AOC) form for an expunction of a dismissal following a deferred prosecution under G.S. 15A-1341(a1), but the form for obtaining an expunction of a dismissed proceeding (AOC-CR-264) can be used once the prosecutor has dismissed the charges.

Table 6. Deferred Prosecution

Matters Subject to Expunction

Principal Restrictions on Expunction

Applicable Statutes and Forms

  • Deferred prosecution of
    • any Class H or I felony or any misdemeanor (except for impaired driving offense under G.S. 20-138.1, effective for orders placing a person on probation on or after Dec. 1, 2015)
  • Person must obtain deferred prosecution, the requirements of which include
    • consent of court, prosecutor, and person;
    • no prior conviction of misdemeanor involving moral turpitude or felony;
    • person has not previously been placed on probation;
    • person is unlikely to commit another offense other than Class 3 misdemeanor; and
    • fulfillment of terms of probation (maximum of two years under G.S. 15A-1341(a))
  • Person must meet requirements for expunction under G.S. 15A-146 (see Table 4)