Relief from a Criminal Conviction (2023 Edition)

G.S. 15A-145.1 authorizes expunction of a discharge and dismissal or conviction of certain offenses involving gangs in violation of G.S. 14-50.29 and G.S. 14-15.30 (see Table 20). The 2009 Consolidation Act, S.L. 2009-577 (H 1329), moved the key expunction provisions from the gang statutes to G.S. 15A-145.1 and broadened the opportunity for an expunction by making G.S. 15A-145.1 applicable to expunction petitions filed on or after December 1, 2009. Previously, the gang offense expunction provisions, in G.S. 14-50.30, applied only to offenses committed on or after December 1, 2008, when the gang statutes were first enacted. See S.L. 2008-214 (H 274); State v. Frazier, 206 N.C. App. 306, 308 n.1 (2010) (recognizing effect of 2009 legislation on effective date). The original gang statutes remain relevant because they contain the discharge and dismissal requirements for the offenses, which are a precondition for expunctions of those matters under G.S. 15A-145.1. (A person also may be eligible for a discharge and dismissal of a gang offense 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.)

Subdivision (1) in G.S. 15A-145.1(a) requires an affidavit by the petitioner that he or she has been of good behavior “(i) during the period of probation since the decision to defer further proceedings on the offense in question . . . or (ii) during the two-year period since the date of conviction of the offense in question, whichever applies, and has not been convicted of any felony or misdemeanor other than a traffic violation.” The italicized provision does not appear to be significant for expunctions of a discharge and dismissal because the person must be conviction-free (other than for a traffic violation) to obtain a discharge and dismissal in the first place. But, the meaning of the provision may be significant for petitions to expunge a conviction. 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 indicated time period—that is, the person must be of good behavior and conviction-free in the two years since conviction of the gang offense. Cf. 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Construction § 47:26 (7th ed., Nov. 2023) (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).  But see G.S. 15A-145.7(a)(1) (repeating ambiguous phrasing for expunction of threats of mass violence).

A two-year waiting period, tied to the date of conviction and completion of the person’s sentence, is required before the filing of an expunction petition of a conviction. For a discussion of waiting periods, which are common to several expunction statutes, see infra Appendixes: Frequently Asked Questions (Waiting Periods).

As in many of the expunction statutes, G.S. 15A-145.1 treats traffic violations differently than other criminal convictions. Under G.S. 15A-145.1, a conviction of a traffic violation is not a bar to an expunction of a discharge or dismissal or a conviction of the covered gang offenses. This guide takes the position that the term “traffic violation,” as used in the expunction statutes, means any misdemeanor conviction 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 gang offenses, but three different AOC forms for the discharge and dismissal itself (shown in Table 20). The different discharge and dismissal forms reflect differences in the applicable conditions of probation, which depend on the date the person committed the offense; the basic criteria for discharge and dismissal do not differ.

Table 20. Discharge and Dismissal or Conviction of Gang Offenses