North Carolina law provides for expunction of DNA records and samples (see Table 8). Article 13 of Chapter 15A of the General Statutes (G.S. 15A-266 through G.S. 15A-270.1) authorizes the taking of DNA samples for some offenses following conviction and for some offenses at the time of arrest. The authorization to take DNA samples on arrest was added by S.L. 2010-94 (H 1403).

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. There is not an Administrative Office of the Courts (AOC) form for this type of expunction. For DNA samples taken on arrest, G.S. 15A-266.3A requires the prosecuting district attorney to seek an expunction, without request, if any of the grounds for expunction in that statute apply.[1]

Table 8. DNA Records

Matters Subject to Expunction

Principal Restrictions on Expunction

Applicable Statutes and Forms

  • DNA records and samples taken from person convicted or found not guilty by reason of insanity for offenses listed in G.S. 15A-266.4(b) if
    • final order by appellate court reversing and dismissing conviction of offense, or
    • pardon of innocence
  • Expunction order does not apply to DNA required to be in the state’s database based on other offenses
  • DNA records and samples taken on arrest of person for offenses listed in G.S. 15A-266.3A if
    • charge was dismissed;
    • person was acquitted;
    • person was convicted of lesser misdemeanor for which taking of DNA is not required;
    • no charge was filed within any statute of limitations; or
    • no conviction has occurred, at least three years have passed since the date of arrest, and no active prosecution is occurring
  • Expunction order does not apply to DNA required to be in the state’s database based on other offenses
  • Expunction order does not apply to physical evidence obtained from a sample if evidence relating to another person would be destroyed

 


[1] Before June 1, 2012, a person had to request that the prosecuting district attorney seek an expunction if certain of the grounds identified in G.S. 15A-266.3A applied. Beginning July 1, 2012, the prosecuting attorney must seek an expunction, without request, if any of the grounds in that statute apply. See G.S. 15A-266.3A(i), (j). Effective for proceedings on or after December 1, 2013, the North Carolina State Crime Laboratory has 90 days (instead of 30 days) to act on a request for expunction from the prosecutor. S.L. 2013-171 (S 630) (amending G.S. 15A-266.3A(k)).

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. Unlike G.S. 15A-146, G.S. 15A-266.3A does not contain prior conviction or prior expunction bars to relief. G.S. 15A-146(b1) and (b2) may offer an additional 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. If 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.