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Relief from a Criminal Conviction (2017 edition)

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 G.S. 15A-145.2(a) and G.S. 15A-145.3(a). The statutes in G.S. Chapter 90 remain relevant 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 also made an important clarification 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 General Assembly has expanded the eligibility for a discharge and dismissal in recent years and, as a result, the opportunities for an expunction. The changes to the drug-related statutes are incorporated in the accompanying tables. Although the expansion of the discharge and dismissal statutes remain significant to a person’s eligibility for relief, the expunction procedures in those statutes may no longer matter with the expansion in 2017 of expunctions of dismissals under G.S. 15A-146. See supra Expunctions of Dismissals and Similar Dispositions: Dismissal or Finding of Not Guilty of Misdemeanors, Felonies, and Certain Infractions. Previously, a prior expunction barred an expunction of a dismissal under G.S. 15A-146, but a person could still obtain an expunction of a discharge and dismissal under the drug-related statutes because they did not make a prior expunction a bar. Now that a person may obtain unlimited expunctions of dismissals under G.S. 15A-146, resort to an expunction under the drug-related statutes, which contain restrictive age and prior conviction criteria, may no longer be necessary. The accompanying footnotes discuss the prior conviction requirement in the drug-related statutes[1] and other legislative changes to those statutes.[2]

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 Administrative Office of the Courts (AOC) form for expunction of a discharge and dismissal and 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 four 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 or G.S. 90-122A
  • 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 (discussed in note 1) 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 or G.S. 90-113.22A
  • 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, G.S. 90-113.22, or G.S. 90-113.22A, 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 (discussed in note 1) 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 (discussed in note 1) 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 (discussed in note 1) other than for traffic violation


[1] The 2010 Technical Changes Act, S.L. 2010-174 (H 726), repealed subdivision (3) of G.S. 15A-145.2(a) and G.S. 15A-145.3(a) and added 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.” The italicized provision could be read as a free-standing requirement that the person be conviction-free (other than for a traffic violation). An alternative interpretation is that the language should be read in conjunction with the good behavior condition—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). Later-enacted expunction statutes may support the latter interpretation, stating more clearly that the petitioner must be of good moral character and conviction-free since disposition of the case. See G.S. 15A-145.6(c)(1), (f)(2) (expunction of prostitution offense); see generally supra Overview: Interpreting Relief Statutes (observing that later statutes may provide a guide to the General Assembly’s intent in earlier statutes).

[2] 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. A person who entered a guilty plea or was found guilty before January 1, 2012, when the changes took effect, 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. 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); see also State v. Dail, ___ N.C. App. ___, 805 S.E.2d 737 (2017) (remanding for consideration of discharge and dismissal where State had not opposed it).

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 applies to the same offenses covered under subsection (a); this change had no effect because the deleted language covered the same offenses that are 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. 

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, which was rectified by 2017 legislation making a discharge and dismissal available for a violation of that statute and making a violation a disqualifying conviction under G.S. 90-96(a1), but not under G.S. 90-113.14(a1), if the violation was within the previous seven years. S.L. 2017-102, sec. 38 (H 229) (effective July 12, 2017).