Relief from a Criminal Conviction (2023 Edition)

An order granting a petition for an expunction of an adult criminal matter has two basic effects. One, it requires deletion of records about the case. Two, it seeks to restore the petitioner to the status he or she had before the proceedings occurred. This discussion briefly describes those effects and their limitations.

Deletion of records is addressed by the specific expunction statute governing the criminal matter to be expunged and a generally applicable set of procedures on expunctions, G.S. 15A-150 through G.S. 15A-152. The deletion requirement applies to North Carolina’s courts; state and local law enforcement agencies; Division of Motor Vehicles (DMV); Department of Public Safety, Combined Records Section; State Bureau of Investigation (SBI); and other state and local government agencies identified by the petitioner in the petition for an expunction. See AOC-CR-285 (Apr. 2018) (attachment to expunction petition for listing of additional state and local governments agencies that should receive expunction orders). On granting of an expunction, the clerk of court ordinarily must transmit the order to these entities as well as provide a certified copy of the order to the petitioner. G.S. 15A-150(b). For automatic expunctions of dismissals and acquittals under G.S. 15A-146(a4), postponed until July 1, 2024, the clerk is not required to give notice to other entities, although the Administrative Office of the Courts (AOC) could do so. G.S. 15A-150(b), (e). The SBI is responsible for forwarding the order to the Federal Bureau of Investigation. G.S. 15A-150(c). If a state or local agency fails to comply with an expunction order, a person may file a petition for writ of mandamus to compel compliance. See infra Appendixes: Frequently Asked Questions (Reconsideration and Enforcement of Expunction Orders).

Not all government records are subject to this deletion command. For example, DMV must expunge its records related to criminal proceedings in most instances but not all.[1] Despite the broad statutory mandate, an older decision held that a prosecutor’s investigative file, which was not open to the public, was not subject to expunction.[2] Changes enacted in 2020, in S.L. 2020-35 (S 562), recognized that an arresting agency may maintain investigative records related to a charge expunged under G.S. 15A-146, the statute on expunctions of dismissals. See G.S. 15A-146(a5). An expunction order might not reach appellate records.[3]

The expunction statutes require private entities in the business of compiling and disseminating criminal history record information to delete information that has been expunged. See G.S. 15A-152(a). The AOC must provide a deletion notice to private entities to which the AOC has provided bulk extracts of criminal record data, and those entities in turn must provide a deletion notice to entities to which they have passed on the data. See G.S. 15A-150(d). The statutes do not require the AOC to give notice to private entities that receive criminal record data by other means, putting the onus on affected individuals to pursue other remedies. If a private entity continues to show criminal record information for which a person has received an expunction, a person may have remedies under the federal Fair Credit Reporting Act (FCRA), 15 U.S.C. 1681 et seq., which covers criminal history information as well as credit information. See also G.S. 15A-152 (providing for civil liability for private entities not regulated by the FCRA or Gramm-Leach-Bliley Act). A person’s rights under the FCRA and procedures to follow are beyond the scope of this guide.[4]

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). North Carolina law provides for destruction of these DNA records and samples if the charge is dismissed, the person is acquitted or received a pardon of innocence, and similar dispositions. See infra Expunctions of Dismissals and Similar Dispositions: DNA Records; Charges Remanded to Juvenile Court. For expunctions of convictions, the applicable statutes state that expunction does not require destruction of DNA samples and records. 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.

The North Carolina Administrative Office of the Courts (AOC) retains a confidential file of granted expunctions.[5] In addition to disclosing this information to the person who received the expunction (discussed supra in Overview: Procedure to Obtain an Expunction (Orders)), disclosure is permissible for the uses discussed below.

The petitioner and petitioner’s attorney should retain a copy of documents showing the charges and disposition of the case, such as warrants, orders of dismissal, and judgments. Because of the broad requirement of destruction, the petitioner may not be able to obtain these records should they become necessary to show the nature and outcome of the case.

Use of Expunged Information

When considering subsequent expunction requests. The AOC may disclose an expunction to a judge for the purpose of ascertaining whether a person charged with an offense previously received an expunction, which is a bar to a further expunction under some statutes. See G.S. 15A-151.

In subsequent criminal proceedings. As part of legislation enacted in 2017 expanding expunction opportunities, prosecutors gained the right to obtain a record of the defendant’s prior expunctions from the AOC and use the record for limited purposes, effective for expunctions granted on or after July 1, 2018. See G.S. 15A-151.5, enacted by S.L. 2017-195 (S 445). Initially, the statute (and conforming changes to specific expunction statutes) allowed use of an expunged conviction to determine a person’s prior record level for felony sentencing if convicted of a subsequent offense. Under legislation enacted in 2020, S.L. 2020-35 (S 562), prosecutors gained the right to use an expunged conviction for the following additional purposes: to determine prior conviction level for misdemeanor sentencing, to serve as the basis for an habitual offense under G.S. 14-7.1 and G.S. 14-7.26, to raise a subsequent offense to a higher level, to determine eligibility for relief under G.S. 90-96, and when permissible under Rule 404(b) and Rule 609 of the North Carolina Rules of Evidence. See G.S. 15A-151.5(b). (Conforming changes were not made to specific expunction statutes, but this omission does not appear to be significant.) G.S. 15A-151.5 does not authorize other uses of expunged convictions. An expunged conviction would not count as a prior conviction under relief statutes that bar relief if a person has a prior conviction. See infra Appendixes: Frequently Asked Questions (Expunged Convictions). Prosecutors also may obtain information about dismissals expunged under G.S. 15A-146(a) and (a1) (although not acquittals under G.S. 15A-146(a2) and not automatic expunctions of dismissals and acquittals under G.S. 15A-146(a4)), which presumably they may use in making plea decisions. See G.S. 15A-151.5; see also G.S. 15A-151(a)(8) (authorizing disclosure of dismissal pursuant to a conditional discharge to the defendant and prosecutor on joint request).

The additional purposes for which a prosecutor may use expunged matters are incorporated into G.S. 15A-151.5(b), which states that it applies to expunctions granted on or after July 1, 2018. The pertinent section of the 2020 legislation, section 2, states that the changes are effective December 1, 2020, but it does not limit the changes to petitions for expunctions after that date. The legislation thus appears to make the additional purposes retroactive. Whether this result violates ex post facto principles, by retroactively eliminating relief granted by a previous expunction, is an issue for the North Carolina courts. See generally State v. Ramseur, 374 N.C. 658, 677 (2020) (holding that retroactive application of repeal of Racial Justice Act to pending motion for relief violated ex post facto principles; stating that General Assembly may pass “ameliorative laws granting potential relief from crimes and punishment to defendants for crimes already committed, and, having done so, it cannot then withdraw that relief consistent with the Ex Post Facto Clause”). If it is a violation, prosecutors may be limited to using expunctions for the additional statutory purposes for petitions for expunctions filed on or after December 1, 2020.

Expunged records may be subject to suppression in subsequent criminal proceedings when not used for a statutorily authorized purpose. See generally State v. Womble, 277 N.C. App. 164 (2021) (denying suppression of DNA records in subsequent criminal proceeding; defendant was not entitled to expunction of records); State v. Swann, 197 N.C. App. 221 (2009) (denying suppression of DNA records in subsequent criminal proceeding; defendant had not obtained order expunging records before their use); see also G.S. 15A-974 (providing for suppression of evidence for statutory violation unless person committing violation acted under objectively reasonable, good faith belief that the actions were lawful).

For law enforcement employment and certification. As part of earlier legislation expanding expunction opportunities, law enforcement agencies and commissions gained the right to obtain information about expunctions of certain convictions for employment and certification purposes. See S.L. 2011-278 (S 397); S.L. 2012-191 (H 1023); see also S.L. 2023-56 (H 611) (limiting use of some expunctions). Legislation enacted in 2021 provided access by law enforcement agencies and commissions to all expunctions for these purposes, including access to expunctions of dismissals and acquittals. See G.S. 15A-151, as amended by S.L. 2021-107 (H 312); see also AOC-CR-280 (Oct. 2021) (law enforcement application for verification of expunctions).[6] 

The expunction statutes express in various ways the principle that an expunction restores a person’s status as if the proceeding had not occurred. Most expunction statutes state this principle explicitly.[7] Most also state that a person who receives an expunction may not thereafter be held under any provision of law to be guilty of perjury or otherwise giving a false statement for failing to acknowledge the expunged proceedings.[8]

Statutory changes enacted in 2013 sought to clarify and strengthen these protections. G.S. 15A-153 states that the purpose of an expunction is to clear the public record of any arrest, charge, or conviction that has been expunged; to enable the recipient of an expunction to omit reference to the expunged matters to potential employers and others; and to protect the recipient from any charge of perjury or the giving of a false statement. This statute prohibits employers and educational institutions, whether public or private, from asking applicants about expunged arrests, charges, and convictions and gives applicants the right not to provide information about expunged matters. An employer who violates these requirements is subject to a fine by the North Carolina Commissioner of Labor. The statute does not address other private entities, such as landlords. G.S. 15A-153 places additional restrictions on state and local governments. They may not ask applicants to disclose expunged information and, further, must specifically advise them that they have the right not to disclose expunged information.  See also Furthering Fair Chance Policies in State Government Employment, Executive Order No. 158 (Aug. 18, 2020) (prohibiting state agencies from inquiring about expunged convictions). Some newer expunction statutes add that persons required by state law to obtain a criminal history check are deemed not to have knowledge of convictions expunged under that statute. G.S. 15A-145.5(d1) (convictions of nonviolent felonies and misdemeanors); G.S. 15A-145.9(g) (convictions of human trafficking victims).

For the most part, an expunction avoids collateral consequences imposed by North Carolina law. North Carolina governmental entities, such as licensing agencies, must abide by this rule. Some newer expunction statutes direct agencies to reverse any administrative actions taken against a person based on criminal charges or convictions if the person has obtained an expunction. See G.S. 15A-145.4(h); G.S. 15A-145.5(f); G.S. 15A-145.6(i). Limited exceptions exist for law enforcement agencies, which may consider expunctions for employment and certification purposes, and for judges and prosecutors, who may consider expunged information for specified purposes. See Use of Expunged Information, above.

North Carolina law does not prohibit private entities from considering expunged information. Thus, although private employers and educational institutions may not inquire about expunged criminal proceedings, they still may be able to consider expunged information that they otherwise learn about. North Carolina law also does not control consideration of expunged information by other jurisdictions, which may or may not follow the same restrictions. Federal immigration law, for example, does not appear to recognize a North Carolina expunction as a basis for disregarding a criminal conviction.[9]

Finally, in the electronic age in which we live, digital remnants of information about expunged proceedings may remain publicly accessible, which rightly or wrongly entities may hold against a person.[10]