Parking Alert: South Road Construction

Partial road barriers have been placed at the intersection of South Road and Country Club Road due to a summer construction project. The School’s parking deck is open and accessible from South Road for the duration of the project by driving between the two barriers and entering the parking gate immediately on the left.

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Relief from a Criminal Conviction

Discharge and Dismissal of Controlled Substance, Drug Paraphernalia, and Toxic Vapor Offenses

This type of drug-related expunction involves offenses for which a person has received a discharge and dismissal within the meaning of the applicable statutes (see Table 10 and Table 11). G.S. 90-96(a) and (a1) and the related expunction provisions in G.S. 15A-145.2(a) address controlled substance and drug paraphernalia offenses (although drug paraphernalia offenses themselves are addressed in a different article in G.S. Chapter 90). The discharge and dismissal provisions in G.S. 90-113.14(a) and (a1) and the related expunction provisions in G.S. 15A-145.3(a) address toxic vapor offenses. The discharge, dismissal, and expunction provisions for the two sets of offenses are discussed together because the requirements are similar. To the extent differences exist, they are shown in the tables below. In addition, two different discharge and dismissal opportunities are available for each set of offenses—under subsections (a) and (a1) of G.S. 90-96 for controlled substance and drug paraphernalia offenses and under subsections (a) and (a1) of G.S. 90-113.4 for toxic vapor offenses. (A person also may be eligible for a discharge and dismissal of these offenses under the general discharge and dismissal statute, G.S. 15A-1341(a4), and for an expunction of either type of discharge and dismissal under the general dismissal expunction statute, G.S. 15A-146. For a discussion of the impact of a discharge and dismissal and its eligibility for expunction, see supra Expunctions of Dismissals and Similar Dispositions: Types of Dismissals.)

The 2009 Consolidation Act, S.L. 2009-577 (H 1329), moved the expunction procedures from G.S. Chapter 90 to new G.S. 15A-145.2(a) and G.S. 15A-145.3(a). The statutes in G.S. Chapter 90 remain relevant, however, because they contain the discharge and dismissal requirements, which are a precondition for expunction under G.S. 15A-145.2 and G.S. 15A-145.3. The 2009 Consolidation Act did not make any new matters in subsection (a) of G.S. 90-96 and G.S. 90-113.14 subject to expunction; but, it made a clarifying change to subsection (a1) of G.S. 90-96 and G.S. 90-113.4 by explicitly providing, in those subsections and in G.S. 15A-145.2(a) and G.S. 15A-145.3(a), that a person may receive a discharge, dismissal, and expunction for offenses covered by those statutes. Previously, subsection (a1) of G.S. 90-96 and G.S. 90-113.14 referred to discharge and dismissal but did not specify any procedure for implementing that disposition and did not mention expunction.

The 2010 Technical Changes Act, S.L. 2010-174 (H 726), may have made a clarifying change for all of the offenses by repealing subdivision (3) of G.S. 15A-145.2(a) and G.S. 15A-145.3(a) and adding subdivision (3a) in its place. The principal effect of the change was to eliminate the requirement, in repealed subdivision (3), that petitioners obtain affidavits from local court and law enforcement personnel attesting to the absence of prior disqualifying convictions. Instead, under subdivision (3a), petitioners must obtain a criminal record check on a form issued by the North Carolina Administrative Office of the Courts (AOC). The repeal of subdivision (3) had the further effect of eliminating broad language disqualifying a person from obtaining an expunction of a discharge and dismissal if he or she was convicted of a felony or misdemeanor before deferral of the proceedings. Subdivision (1) in both G.S. 15A-145.2(a) and G.S. 15A-145.3(a) still requires an affidavit by the petitioner that he or she “has been of good behavior during the period of probation since the decision to defer further proceedings on the offense in question and has not been convicted of any felony or misdemeanor other than a traffic violation.” Because of its placement in the sentence, the italicized language could be read as applying to the good behavior condition only, which would have the effect of barring an expunction of a discharge and dismissal under G.S. 15A-145.2 and G.S. 15A-145.3 if the person has any prior felony or misdemeanor convictions. An alternative interpretation is that the placement of the language was the result of awkward drafting and should be read as encompassing both the good behavior and conviction conditions—that is, the person must be of good behavior and conviction-free since the decision to defer. Cf. 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Construction § 47:26 (7th ed., Nov. 2016) (observing that where a sentence contains several antecedents and several consequents, courts apply the words to the subjects to which, by context, they seem most properly to relate). The latter interpretation may reflect the General Assembly’s intent because it is more consistent with the overall approach to relief in drug cases. It would make the prior conviction bar for obtaining an expunction of a discharge and dismissal under G.S. 15A-145.2 or G.S. 15A-145.3 the same as the prior conviction bar for obtaining the underlying discharge and dismissal—that is, no prior felonies and no prior drug convictions. It also would make the criteria for expunction of a discharge and dismissal in a drug case more consistent with the criteria for expunction of a drug conviction. This guide’s view is that the expunction statutes make prior felony convictions and prior drug convictions a bar to expunction of a drug conviction but do not make other misdemeanor convictions a bar. See infra Expunctions of Drug-Related Offenses: Conviction of Controlled Substance, Drug Paraphernalia, and Toxic Vapor Offenses. Reading the statutes as requiring a person to be entirely conviction-free to expunge a discharge and dismissal would mean that a person would have more difficulty obtaining an expunction of those proceedings than of a conviction.

The 2011 JRA, S.L. 2011-192 (H 642), made significant changes to the discharge and dismissal requirements for the controlled substance and drug paraphernalia offenses in subsection (a) of G.S. 90-96. The changes, which took effect with guilty pleas and findings of guilt on or after January 1, 2012, are reflected in Table 10. A person who entered a guilty plea or was found guilty before January 1, 2012, is still eligible to obtain an expunction if he or she obtained a discharge and dismissal under the criteria then in effect and meets the current criteria for expunction.[1]

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.

As in many of the expunction statutes, G.S. 15A-145.2 and G.S. 15A-145.3 treat traffic violations differently than other criminal convictions. Under both statutes, a conviction of a traffic violation is not a bar to expunction of other convictions. This guide takes the position that the term “traffic violation,” as used in the expunction statutes, means any misdemeanor under Chapter 20 of the General Statutes unless otherwise specified. The meaning of traffic violation, including impaired driving, is discussed further in Appendixes: Frequently Asked Questions (Traffic Violations and Driving While Impaired (DWI)).

There is one AOC form for expunction of a discharge and dismissal and three four AOC forms for a discharge and dismissal under G.S. 90-96 (whether under subsection (a) or (a1)). The latter four forms merely reflect differences in the applicable conditions of probation, which depend on the date the person committed the offense; all three forms contain the same criteria for obtaining a discharge and dismissal. There is an AOC form for expunction of a discharge and dismissal under G.S. 90-113.14 but no form for the discharge and dismissal itself.

 

Table 10. Discharge and Dismissal of Controlled Substance and Drug Paraphernalia Offenses under G.S. 90-96(a) and (a1)

Matters Subject to Expunction

Principal Restrictions on Expunction

Applicable Statutes and Forms

  • Discharge and dismissal pursuant to G.S. 90-96(a) 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
    • misdemeanor possession of drug paraphernalia under G.S. 90-113.22
  • Person must obtain discharge and dismissal, the requirements of which include
    • no prior felony conviction,
    • no prior conviction under Article 5 of G.S. Ch. 90,
    • no prior conviction under any federal or state statute for substance in Articles 5 or 5A or paraphernalia in Article 5B of G.S. Ch. 90,
    • no prior discharge and dismissal under G.S. 90-96 or G.S. 90-113.14, and
    • fulfillment of terms of probation (maximum of two years under G.S. 15A-1342(a))
  • Person must meet requirements for expunction, including
    • offense occurred when person was age 21 or younger,
    • good behavior during period of probation, and
    • no felony or misdemeanor conviction as defined in statute, other than for traffic violation
  • Discharge and dismissal pursuant to G.S. 90-96(a1) 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
    • misdemeanor possession of drug paraphernalia under G.S. 90-113.22
  • Person must obtain discharge and dismissal, the requirements of which include
    • no prior conviction for violation of G.S. 90-95(a(1), G.S. 90-95(a)(2), G.S. 90-95(a)(3), G.S. 90-113.10, G.S. 90-113.11, G.S. 90-113.12, or G.S. 90-113.22, or discharge and dismissal under G.S. 90-96 or G.S. 90-113.14, for offense committed within seven years of current offense; and
    • fulfillment of terms of probation, which must be for a minimum period of one year and include completion of drug education school within first 150 days of probation unless waived by court
  • Person must meet requirements for expunction, including
    • offense occurred when person was age 21 or younger,
    • good behavior during period of probation for offense in question, and
    • no felony or misdemeanor conviction as defined in statute, other than for traffic violation

 

Table 11. Discharge and Dismissal of Toxic Vapor Offenses

Matters Subject to Expunction

Principal Restrictions on Expunction

Applicable Statutes and Forms

  • Discharge and dismissal pursuant to G.S. 90-113.14(a) of
    • inhaling or possessing toxic vapor substance in violation of G.S. Ch. 90, Art. 5A
  • Person must obtain discharge and dismissal, the requirements of which include
    • no prior conviction under Article 5A of G.S. Ch. 90,
    • no prior conviction under any federal or state statute for substance in Articles 5 or 5A or paraphernalia in Article 5B of G.S. Ch. 90,
    • no prior conviction for substance in Articles 5 or 5A or paraphernalia in Article 5B of G.S. Ch. 90,
    • no prior discharge and dismissal under G.S. 90-96 or G.S. 90-113.14, and
    • fulfillment of terms of probation
  • Person must meet requirements for expunction, including
    • offense occurred when person was age 21 or younger,
    • good behavior during period of probation, and
    • no felony or misdemeanor conviction as defined in statute, other than for traffic violation
  • Discharge and dismissal pursuant to G.S 90-113.14(a1) of
    • any offense in G.S. 90-113.10 or G.S. 90-113.11
  • Person must obtain discharge and dismissal, the requirements of which include
    • no prior conviction for violation of G.S. 90-95(a(1), G.S. 90-95(a)(2), G.S. 90-95(a)(3), G.S. 90-113.10, G.S. 90-113.11, G.S. 90-113.12, or G.S. 90-113.22, or discharge and dismissal under G.S. 90-96 or G.S. 90-113.14, for offense committed within seven years of current offense; and
    • fulfillment of terms of probation, which must be for a minimum period of one year and include completion of drug education school within first 150 days of probation unless waived by court
  • Person must meet requirements for expunction, including
    • offense occurred when person was age 21 or younger,
    • good behavior during period of probation for offense in question, and
    • no felony or misdemeanor conviction as defined in statute, other than for traffic violation

 



[1] The 2011 changes to subsection (a) of G.S. 90-96 are as follows. First, as amended, G.S. 90-96(a) allows a discharge and dismissal of any misdemeanor drug possession offense under Article 5 of G.S. Chapter 90 or any felony drug possession offense under G.S. 90-95(a)(3). Previously, felony possession of less than one gram of cocaine was the only felony offense subject to a discharge and dismissal under G.S. 90-96(a). A discharge and dismissal also remains available for misdemeanor drug paraphernalia offenses. Second, amended G.S. 90-96(a) does not allow a discharge and dismissal under that statute if the petitioner has been convicted of a misdemeanor controlled substance, drug paraphernalia, or toxic vapor offense or any felony offense. Previously, a prior felony conviction barred a discharge or dismissal only if it involved drug-related matters. Third, the 2011 JRA provided that if a person met the criteria for a discharge and dismissal under G.S. 90-96(a) and the person consented, the court was required to use the discharge and dismissal procedure. Effective for offenses committed on or after December 1, 2013, the General Assembly revised G.S. 90-96(a) to authorize the court not to use the discharge and dismissal procedure if it determines by written finding and with the prosecutor’s agreement that the person is not appropriate for a discharge and dismissal. S.L. 2013-210 (H 641).

The 2011 JRA also revised subsection (a1) of G.S. 90-96, but the change itself was not substantive. The 2011 JRA deleted the description of offenses for which a discharge and dismissal could be granted under subsection (a1) and, in its place, stated that the subsection covers the same offenses covered under subsection (a); this change had no effect because the deleted language covered the same offenses that are now covered under revised subsection (a). Still, the 2011 JRA differentiated the two subsections by modifying the prior convictions that bar a discharge and dismissal under subsection (a). The disqualifying convictions for a discharge and dismissal under subsection (a1) are narrower.

The 2011 JRA made no changes to the discharge and dismissal requirements for toxic vapor offenses in either subsection (a) or (a1) of G.S. 90-113.14.