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Relief from a Criminal Conviction (2020 Edition)

Dismissal or Finding of Not Guilty of Misdemeanors, Felonies, and Certain Infractions

G.S. 15A-146 allows expunction of dismissals and findings of not guilty of felony or misdemeanor charges and of findings of not responsible for certain infractions (see Table 5). A dismissal, whether by the State or by the court, may be expunged. For a discussion of the types of dispositions that constitute dismissals subject to G.S. 15A-146, see supra Expunctions of Dismissals and Similar Dispositions: Types of Dismissals.

For petitions filed on or after December 1, 2020, G.S. 15A-146 has three categories of expunctions of dismissals and findings of not guilty:

  • dismissals in cases involving a single charge;
  • dismissals in cases involving multiple charges; and
  • findings of not guilty in cases involving a single charge or multiple charges.

An individual or district attorney may file for an expunction in all three categories.

For dismissals, findings of not guilty, and findings of not responsible for infractions on or after December 1, 2021, expunctions will become automatic in many cases. See G.S. 15A-146(a4). Automated expunctions will not apply to dispositions before December 1, 2021, so it will remain important to understand the requirements for petitioning for an expunction. This guide will be updated about the automated process once it takes effect.

The basic eligibility criteria to obtain an expunction are the same for the three current categories. For all three categories, G.S. 15A-146 no longer contains a bar to relief based on prior convictions, whether for misdemeanors or felonies.[1] Nor does G.S. 15A-146 contain a bar to relief based on prior expunctions, whether obtained under G.S. 15A-146 or other statutes.[2] An expunction of a dismissal under G.S. 15A-146 also does not affect the availability of expunctions under other statutes except for G.S. 15A-145.4 (nonviolent felony before age 18) and G.S. 15A-145.6 (prostitution offenses). Continuing to bar relief under those statutes because of a prior expunction under G.S. 15A-146 may have been a legislative oversight; it seems inconsistent with the right to unlimited expunctions of dismissals. Until revised, a person may first need to obtain an expunction under G.S. 15A-145.4 or G.S. 15A-145.6, then obtain an expunction under G.S. 15A-146.

The three categories of expunctions differ in some respects. For dismissals in cases involving a single charge, expunction is mandatory. See G.S. 15A-146(a).

For dismissals in cases involving multiple charges, expunction is mandatory if all charges are dismissed. If any charge resulted in a conviction on the day of dismissal or has not reached final disposition, the court may order expunction of the dismissed charge. See G.S. 15A-146(a1). For example, a prosecutor may dismiss one or more charges as part of a plea agreement in which the person pleads guilty to other charges. Or, a prosecutor may bring a felony and the person pleads guilty to a lesser offense, effectively resulting in the dismissal of the greater charge and conviction of the lesser. In those instances, G.S. 15A-146(a1) recognizes that a court may order expunction of the dismissed charge. See also G.S. 15A-266.3A(h)(1)c. (mandating expunction of DNA samples taken on arrest for felony if person is convicted of lesser misdemeanor for which DNA samples are not required).

For findings of not guilty in cases involving a single charge or multiple charges, expunction is mandatory for any charge for which a person is found not guilty once all charges have reached final disposition. G.S. 15A-146(a2). For example, if a person is charged with multiple offenses and is convicted of some offenses and found not guilty of other offenses, expunction is mandatory for the offenses for which the person is found not guilty. Or, if a person is charged with one offense and is convicted of a lesser offense, the person has been found not guilty of the greater charge, making expunction of that charge mandatory.

If the court orders expunction of one charge within a case and does not order expunction of the entire case, the clerk should expunge those portions of the case affected by the order.[3] The availability of an expunction of a conviction in a case in which the court has ordered an expunction of dismissed charges depends on the applicability of other expunction statutes.

The record of expunctions under all three categories in G.S. 15A-146 is available to law enforcement agencies and certifying commissions for employment and certification purposes. See G.S. 15A-151(a)(4), (5), (6). An arresting agency also may maintain investigative records related to a charge expunged under all three categories. G.S. 15A-146(a5). Expunctions of dismissals, but not of findings of not guilty or not responsible, are available to prosecutors. See G.S. 15A-151(a)(8), (9).

 

Table 5. Dismissal or Finding of Not Guilty of Misdemeanors, Felonies, and Certain Infractions

Matters Subject to Expunction

Principal Restrictions on Expunction

Applicable Statutes and Forms

  • Dismissal or finding of not guilty or not responsible of
    • infraction under G.S. 18B-302(i) charged before Dec. 1, 1999, or
    • misdemeanor or felony
  • For cases involving dismissal of single charge,
    • court shall order expunction of charge
  • For cases involving multiple charges,
    • if all charges dismissed, court shall order expunction of all charges;
    • if any charge resulted in conviction or has not reached final disposition, court may order expunction of dismissed charges
  • For cases involving finding of not guilty or not responsible,
    • if all related charges have reached final disposition, court shall order expunction of charges for which person was found not guilty or not responsible
  • G.S. 15A-146
  • AOC-CR-287 (Dec. 2020) (expunction of dismissal), AOC-CR-288 (Dec. 2020) (expunction of not guilty or not responsible)
  • AOC-CR-295 (Dec. 2020) (petition by district attorney to expunge dismissal); AOC-CR-296 (Dec. 2020 (petition by district attorney to expunge not guilty or not responsible)

[1] The statute formerly barred a person from obtaining an expunction of a dismissal if previously convicted of a misdemeanor or felony, but the General Assembly eliminated the felony conviction bar in 2020 and the the misdemeanor conviction bar in 1991. S.L. 2020-35 (S 562); S.L. 1991-326 (S 744); see also In re Kearney, 174 N.C. App. 213 (2005) (holding in case in which assault and battery charge was dismissed, and defendant was convicted of misdemeanor assault inflicting serious injury, that defendant was entitled to expunction of dismissal under G.S. 15A-146 then in effect, although not of conviction).

[2] Previously, a person was ineligible for an expunction under G.S. 15A-146 if he or she had received a prior expunction under one of several statutes. See also In re Robinson, 172 N.C. App. 272, 274–75 (2005) (stating under previous version of statute that “expungement is only available where the trial court finds that the person has not previously received an expungement”). The previous statute allowed a person to obtain an expunction of multiple dismissals if the alleged offenses occurred during the same 12-month period or were disposed of at the same term of court. See also Opinion Letter by North Carolina Attorney General to James J. Coman, SBI Director (Oct. 13, 1995) (stating that a person could obtain an expunction of multiple offenses under the previous version of G.S. 15A-146 if they arose out of the same transaction or occurrence or were consolidated for trial or judgment). Legislation enacted in 2017 eliminated the prior expunction bar from G.S. 15A-146, effective for petitions filed on or after December 1, 2017. S.L. 2017-195 (S 445).

[3] According to the North Carolina Administrative Office of the Courts (AOC), the clerk of court should obliterate all references to the expunged charge in the physical records of the case. Thus, the clerk would obliterate the felony charge from the original criminal process, the release order, and other records. The AOC also advises that the clerk should delete the entire case from the Automated Criminal Information System (ACIS) and reenter the case under the same case number but limited to the charges that were not expunged. See N.C. Administrative Office of the Courts, Expunction Guide for Clerks at 21–22 (Mar. 2020).