Relief from a Criminal Conviction (2023 Edition)

North Carolina law provides for expunction of DNA records and samples (see Table 10). North Carolina law requires the taking of DNA samples on arrest for certain offenses and following conviction for those and other offenses, including all felonies. See G.S. 15A-266.3A(f), (g); G.S. 15A-266.4(b).

For DNA samples taken following conviction, G.S. 15A-148 authorizes expunction of the samples and associated records following a final order of an appellate court reversing and dismissing the conviction or following a pardon of innocence. The person must file a petition to obtain this relief. See State v. Womble, 277 N.C. App. 164 (2021) (holding that defendant was not entitled to automatic expunction and reversing trial judge’s order holding that statute placed unconstitutional burden on defendant under state constitution’s Law of the Land clause). For DNA samples taken on arrest, G.S. 15A-266.3A requires the prosecuting district attorney to seek an expunction, without request, if the charges are dismissed, the person is acquitted, or other  grounds for expunction in that statute apply.[1]

For convictions that are not vacated or reversed, expunction of the conviction does not require destruction of DNA samples and records under the applicable statutes. See G.S. 15A-145.4(h); G.S. 15A-145.5(f) (so stating; 2014 amendment to this subsection deleted exception for fingerprint records, making such records subject to expunction order); G.S. 15A-145.6(i); G.S. 15A-145.9(j); see also 7B-2102(d) (stating that fingerprints and photographs of juveniles are not subject to expunction). Some expunction statutes involving convictions for which DNA samples are required do not address the issue. See G.S. 15A-145.2(c); G.S. 15A-145.8A.

Table 10. DNA Records

[1] G.S. 15A-146(b1) and (b2) also provide for expunction of DNA records following dismissal of a case by the trial court. These provisions were added in 2001 by S.L. 2001-282 (H 884) and, at the time, were the only provisions addressing expunction following dismissal of a case at the trial level. (The act repealed G.S. 15A-266.10, which had allowed expunction of DNA records under the general provisions in G.S. 15A-146.) G.S. 15A-266.3A now authorizes expunction of DNA samples taken on arrest if either a court or district attorney dismisses the charges. G.S. 15A-146(b1) and (b2) may still offer an avenue for relief in the limited instance in which a person has DNA samples taken following conviction and the case is dismissed following a post-conviction proceeding. Construed literally, G.S. 15A-148 and G.S. 15A-266.3A may not cover that situation because the first statute requires an appellate court order of dismissal and the second statute applies to DNA samples taken on arrest. See State v. Womble, 277 N.C. App. 164 (2021) (holding that determination of innocence by three-judge panel did not constitute appellate reversal or pardon of innocence within meaning of G.S. 15A-148; motion to suppress DNA records in subsequent case denied); State v. Swann, 197 N.C. App. 221 (2009) (holding that G.S. 15A-146(b1) and (b2) afford relief when trial court, not district attorney, dismisses case; motion to suppress DNA records in subsequent case denied); see also Wayne A. Logan, Government Retention and Use of Unlawfully Secured DNA Evidence, 48 Tex. Tech L. Rev. 269 (Fall 2015).