Microsite

Relief from a Criminal Conviction

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

G.S. 15A-146(a) and (a1) allow expunction of dismissals and findings of not guilty of felony or misdemeanor charges and of findings of not responsible for certain infractions (see Table 4). 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.

Both G.S. 15A-146(a) and (a1) contain a limited bar to relief based on prior convictions. The statute does not make a misdemeanor conviction a bar, whether the misdemeanor conviction occurs before, after, or at the same time as the dismissal.[1] The last situation is fairly common when a person faces multiple charges—for example, a person may be charged with a felony and misdemeanor but be convicted of the misdemeanor only. The misdemeanor conviction is not a bar to expunction of the felony charge if the felony charge is dismissed or the defendant is found not guilty—G.S. 15A-146(a) does not require that a person obtain a favorable result on all charges to be eligible for relief. This question may arise in various ways, but the result is the same. For example, a prosecutor may dismiss a felony charge as part of a plea agreement in which the person pleads guilty to the misdemeanor. Or, the prosecutor may bring a felony charge, and the person pleads guilty to or is found guilty of a lesser misdemeanor, effectively resulting in a dismissal or acquittal of the felony. In those instances, the person should be entitled to expunction of the felony charge if he or she otherwise meets the criteria in G.S. 15A-146(a). See also G.S. 15A-266.3A (mandating expunction of DNA samples taken on arrest for felony if person is convicted of lesser misdemeanor for which DNA samples not required). 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.[2]

A petitioner is probably ineligible for an expunction of a dismissal if he or she has been convicted of a felony, whether before, after, or at the same time as the dismissal. The wording of G.S. 15A-146(a) and (a1) creates some ambiguity because it allows expunction of a dismissal if, among other things, the person “had not previously been convicted of a felony.” Use of the past tense “had” raises the possibility that a felony conviction is a bar only if the person “had” not been convicted of a felony before some earlier date, such as the date the charges to be expunged were brought. This language is a holdover from an earlier version of the statute, which allowed an expunction if “at the time any of the proceedings against him occurred the person . . . had not previously been convicted of any felony or misdemeanor other than a traffic violation . . . .” S.L. 1979-61 (H 44) (italics added). The General Assembly subsequently revised the statute to eliminate the italicized language. S.L. 1985-636 (H 997). It retained the term “had,” but without reference to a particular time frame, the term no longer appears to have any significance. The statute most likely allows an expunction only if the person “has” not previously been convicted of a felony. Such an approach would be consistent with other North Carolina expunction statutes, which consider the petitioner’s record at the time of the expunction proceedings.

Ordinarily, a person is also ineligible for an expunction under G.S. 15A-146 if he or she has received a prior expunction under specified statutes. As with the bar on prior felony convictions, G.S. 15A-146(a) and (a1) use the somewhat ambiguous term “had” in describing the effect of prior expunctions, allowing an expunction if the person “had not previously received an expungement” (and meets the other statutory requirements). For the reasons discussed above, a prior expunction under one of the listed statutes is probably a bar if obtained before the current expunction proceedings.[3]

Although a person ordinarily may not obtain more than one expunction under G.S. 15A-146, he or she may obtain an expunction of multiple dismissals. G.S. 15A-146(a1) allows expunction of multiple dismissals, whether related or unrelated, if they were for offenses that allegedly occurred during a 12-month period or were disposed of at the same term of court regardless of offense date. G.S. 15A-146(a) allows expunction of multiple dismissals under slightly different conditions—if the alleged offenses arose out of the same transaction or occurrence or were consolidated for judgment.[4]

A petitioner also may obtain an expunction of multiple dismissals that occurred in different courts or counties. G.S. 15A-146(a1) authorizes this relief by allowing an expunction of dismissals for offenses whether related or unrelated. Obtaining such relief can present logistical issues because the statute precludes a person from obtaining an expunction if he or she has a prior expunction. The petitioner therefore will want to obtain or at least request an expunction of all of the dismissals at the same time. Various approaches are possible. The State Bureau of Investigation (SBI) has advised practitioners that when submitting multiple petitions to expunge dismissals, they should note in the margin of each petition that other petitions have been filed simultaneously. Another approach is to ask a single court to hear and rule on a single petition to expunge all of the dismissals at the same time. G.S. 15A-146(a1) may allow this procedure because, unlike G.S. 15A-146(a) and other expunction statutes, it does not require that the petition be filed in a particular court—it simply says, “[t]he court shall hold a hearing on the application.” This approach may be appropriate when the dismissals occurred in a single district but the cases were pending at different court levels when dismissed. For dismissals in multiple districts, a petitioner will likely need to file a separate petition in each district. In addition to the notation suggested by the SBI, a petitioner could state in each proposed expunction order that the orders take effect when the last of the orders is granted or denied, but this phrasing may be unnecessary as long as the petitions are filed contemporaneously.

Under changes made by the 2009 Consolidation Act, S.L. 2009-577 (H 1329), a person may obtain a second expunction under G.S. 15A-146 in limited circumstances. A prior expunction under G.S. 15A-146 does not bar a second expunction under G.S. 15A-146(a1) if the prior expunction (i) occurred before October 1, 2005, when G.S. 15A-146(a1) took effect, and (ii) was for an offense that allegedly occurred within the same 12-month period or was dismissed at the same term of court as the offenses that are the subject of the current expunction petition. Thus, this provision allows a person who obtained an expunction under G.S. 15A-146 before October 1, 2005, to go back and obtain an expunction of additional charges during the surrounding 12-month period or of charges disposed of during the same term of court.[5]

The 2009 Consolidation Act also revised G.S. 15A-146(a) and (a1) by changing the statutory references for prior expunctions that bar an expunction. Before passage of that legislation, a person could not obtain this type of expunction if he or she had received an expunction under G.S. 90-96, among other statutes. The revised provision omits any reference to G.S. 90-96 on expunction of drug-related matters and instead refers to the expunction statutes on drug-related matters added by the 2009 Consolidation Act (that is, G.S. 15A-145.2 and G.S. 15A-145.3, discussed infra under Expunctions of Drug-Related Offenses). If the statute is read literally, a prior expunction under G.S. 90-96, obtained before passage of the 2009 Consolidation Act, may not bar an expunction under G.S. 15A-146.

 

Table 4. 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
  • No prior felony conviction
  • No prior expunction under G.S. 15A-145, G.S. 15A-145.1, G.S. 15A-145.2, G.S. 15A-145.3, G.S. 15A-145.4, G.S. 15A-145.5, or G.S. 15A-146
  • Dismissal or finding of not guilty or not responsible of multiple charges
    • for offenses that allegedly occurred during 12-month period, or
    • that were disposed of at the same term of court, regardless of offense date
  • No prior felony conviction
  • No prior expunction under G.S. 15A-145, G.S. 15A-145.1, G.S. 15A-145.2, G.S. 15A-145.3, G.S. 15A-145.4, or G.S. 15A-145.5
  • No prior expunction under G.S. 15A-146(a1) except as indicated therein

 



[1] The statute formerly barred a person from obtaining an expunction of a dismissal if previously convicted of a misdemeanor, but the General Assembly eliminated the misdemeanor conviction bar in 1991. 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 although not of conviction).

[2] 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.

[3] See also In re Robinson, 172 N.C. App. 272, 274–75 (2005) (stating that “expungement is only available where the trial court finds that the person has not previously received an expungement” and that “the plain language of the statute expressly prohibits more than one expunction”; court did not specifically consider term “had” but did not attribute any significance to it). In response to the Robinson decision, the General Assembly added G.S. 15A-146(a1), discussed in the text, to allow an expunction of multiple dismissals in certain circumstances. S.L. 2005-452 (H 1213).

[4] See Opinion Letter by North Carolina Attorney General to James J. Coman, SBI Director (Oct. 13, 1995) (stating that a person may obtain an expunction of multiple offenses under G.S. 15A-145 and G.S. 15A-146 if they arose out of the same transaction or occurrence or were consolidated for trial or judgment). The findings of fact portion of the AOC form for expunctions, AOC-CR-264 (June 2017), reflects this view. Cf. In re Robinson, 172 N.C. App. 272, 275 (2005) (declining to rule on whether G.S. 15A-146(a) permits expunction of “multiple related charges arising from a single occurrence or which have been consolidated for trial” because issue was not before the court).

[5] The discussion in the text does not track the literal language of G.S. 15A-146(a1). As amended by the 2009 Consolidation Act, G.S. 15A-146(a1) bars a second expunction under this “subsection,” meaning G.S. 15A-146(a1), unless the expunction occurred before October 1, 2005. The problem with construing this language literally is that G.S. 15A-146(a1) did not take effect until October 1, 2005; therefore, it would be impossible for a person to have obtained an expunction under that subsection before then. This guide takes the view that the General Assembly intended to allow an expunction under G.S. 15A-146(a1) if the person obtained an expunction under “this section,” meaning G.S. 15A-146, before October 1, 2005. Such an interpretation also means that, unless the exception applies, subsections (a) and (a1) allow for one expunction—a person may not obtain an expunction under either G.S. 15A-146(a) or (a1) if he or she has already obtained an expunction under G.S. 15A-146. The AOC form AOC-CR-264 (June 2017) reflects this position. The appellate courts have not addressed this issue.