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; the discussion is not intended to be exhaustive.

Deletion of Records

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; other government agencies identified by the petitioner in the petition for an expunction; and certain organizations in the business of providing criminal history information. Not all records are subject to this command, however. For example, DMV must expunge its records related to criminal proceedings in most instances but not all.[1] Investigative files that are not open to the public also may not be subject to expunction.[2] An expunction order may not reach appellate records.[3] Most important, the Administrative Office of the Courts (AOC) retains a confidential file of the names of people who have received an expunction of an adult criminal matter, which the AOC may disclose in limited circumstances—for example, to a judge for the purpose of ascertaining whether a person charged with an offense previously received an expunction. See G.S. 15A-151.

The expunction statutes require private entities in the business of compiling and disseminating criminal history record information to delete information if they receive a notice to delete. See G.S. 15A-152(a). The AOC must provide a deletion notice to private entities to which the AOC has provided criminal record data under certain licensing agreements, and those entities in turn must provide a deletion notice to entities to which they have passed on the data. The statutes do not specifically require the giving of notice to private entities that receive criminal record data by other means. See G.S. 15A-150(d). 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. A person’s rights under the FCRA and procedures to follow are beyond the scope of this guide.

If a state or local agency fails to comply with an expunction order, a person may file a petition for writ of mandamus. See infra Appendixes: Frequently Asked Questions (Reconsideration and Enforcement of Expunction Orders).

Restoration of Status

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.[4] 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.[5]

A statute enacted in 2013, G.S. 15A-153, attempts to clarify and strengthen these protections. It 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 generally 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. Likewise, a state or local government agency generally may not ask applicants to disclose expunged information and, further, must specifically advise them that they have the right not to disclose expunged information.

For the most part, an expunction avoids collateral consequences imposed by North Carolina law.[6] North Carolina governmental entities, such as licensing agencies, must abide by this rule, subject to limited exceptions for law enforcement agencies and certifying commissions.[7] Other jurisdictions may or may not follow the same rules, however. Federal laws that impose collateral consequences based on a criminal conviction may or may not recognize a state law expunction as a basis for eliminating the consequence.[8] Although private employers and educational institutions in North Carolina may not ask applicants about expunged matters, this prohibition does not necessarily apply to entities from other states. Further, in the electronic age in which we live, digital remnants of information about expunged proceedings may remain accessible, which rightly or wrongly entities may hold against a person. See Sharon M. Dietrich, Ants Under the Refrigerator? Removing Expunged Cases from Commercial Background Checks, Criminal Justice, Winter 2016, at 26 (discussing strategies for eliminating expunged information).

[1] Some statutes specifically require DMV to expunge records related to criminal charges. See G.S. 15A-145.1(b); G.S. 15A-145.2(a); G.S. 15A-147(d). Others effectively require the same, stating that state and local agencies must expunge their records as provided in G.S. 15A-150, the general statute on implementation of expunction orders. See G.S 15A-145.4(g); G.S. 15A-145.5(e); G.S. 15A-145.6 (h). Two statutes create limited exceptions to DMV’s obligation to expunge: G.S. 15A-145(c) and G.S. 15A-146(b) exclude civil revocations under G.S. 20-16.2 (willful refusal to submit to a chemical analysis) and civil revocations before civil or criminal charges based on the revocation are resolved. DMV also is not required to expunge records for which expunction is prohibited by certain federal motor vehicle laws. See G.S. 15A-151(c).

[2] See State v. Jacobs,128 N.C. App. 559 (1998) (holding that G.S. 15A-146 did not require prosecutor’s office to destroy its investigative files from dismissed case because the purpose of expunction is to clear the public record of entries and prevent a criminal record check from disclosing expunged entries); G.S. 15A-145.5(f) (providing that requirement that agencies expunge all records following expunction of older nonviolent felony does not apply to DNA records and samples in state DNA database; however, 2014 amendment to this subsection deleted exception for fingerprint records, making such records subject to expunction order); cf. G.S. 7B-2102(d) (stating that fingerprints and photographs of juveniles are not subject to expunction).

[3] See generally State v. Oglesby, 361 N.C. 550 (2007) (holding that General Assembly did not have authority to override rules of practice and procedure for appellate courts). A person may be able to make a motion to the appellate division to seal or destroy records in a case that has otherwise been expunged. If a person appeals an order in an expunction case, the appellate court may be willing to allow the person to proceed under a pseudonym to protect the person's identity.

[4] Similar language appears in statutes authorizing a discharge and dismissal. See infra Expunctions of Dismissals and Similar Dispositions: Types of Dismissals.

[5] See also 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence § 98, at 341–42 (7th ed. 2011) (stating that a witness’s credibility may not be impeached by an expunged conviction); State v. Seay, 59 N.C. App. 667, 670 (1982) (recognizing this principle). But cf. State v. Browning, 177 N.C. App. 487 (2006) (holding that prosecutor could cross-examine defendant about false statements he made to police about offense for which he received deferred prosecution).

[6] An expunged conviction also does not count as a prior conviction under relief statutes that bar relief if a person has a prior conviction. The expunction itself may constitute a bar, however. See infra Appendixes: Frequently Asked Questions (Expunged Convictions).

[7] Convictions expunged under G.S. 15A-145.4 or G.S. 15A-145.5 must be disclosed for certification and employment as a law enforcement officer. But see G.S. 17C-13(b) (allowing certifying commission to consider expunged felony convictions only); G.S. 17E-12(b) (to same effect). Prostitution convictions expunged under G.S. 15A-145.6 also must be disclosed for certification as an officer and, effective July 1, 2015, for employment as an officer under S.L. 2015-40 (H 224). See infra Expunctions on Basis of Age: Nonviolent Felony Convictions for Offenses Committed before Age 18; Expunctions on Basis of Age: Older Nonviolent Misdemeanor and Felony Convictions; Expunctions of Other Offenses: Discharge and Dismissal or Conviction of Prostitution Offenses.

[8] For example, for purposes of federal immigration consequences, such as deportation, an expunged conviction may be considered a conviction. See Immigration Consequences of a Criminal Conviction in North Carolina § 4.2E, Effect of North Carolina Dispositions, at p. 50 (UNC School of Government, 2008).