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Relief from a Criminal Conviction (2017 edition)

Finding of Not Guilty or Dismissal of Certain Drug-Related Offenses

This type of drug-related expunction involves findings of not guilty or dismissals (see Table 12). G.S. 90-96(d) and G.S. 15A-145.2(b) address expunction of controlled substance offenses, and G.S. 90-113.4(d) and G.S. 15A-145.3(b) address expunction of toxic vapor and drug paraphernalia offenses (although drug paraphernalia offenses themselves are addressed in a different article of G.S. Chapter 90). The expunction provisions for these offenses are discussed together because the requirements are essentially the same. Differences are reflected in the accompanying table. The applicable Administrative of the Courts (AOC) forms (shown in Table 12) do not require a record check by the AOC or State Bureau of Investigation for this type of expunction. (A person also may be eligible for an expunction under the general dismissal expunction statute, G.S. 15A-146. See supra Expunctions of Dismissals and Similar Dispositions: Dismissal or Finding of Not Guilty of Misdemeanors, Felonies, and Certain Infractions.)

The 2011 JRA, S.L. 2011-192 (H 642), broadened the controlled substance offenses eligible for an expunction. (It did not modify the drug paraphernalia and toxic vapor expunction provisions.) Under the revised statutes, a person may obtain an expunction of any felony controlled substance possession charge, not just felony possession of less than one gram of cocaine, as well as an expunction of misdemeanor controlled substance possession charges. The 2011 JRA states that this change applies to people who enter a plea or are found guilty on or after January 1, 2012. The language likely means that the revised criteria apply to findings of not guilty and dismissals entered on or after January 1, 2012.

A discharge and dismissal, which is by the court, would not be subject to expunction under G.S. 15A-145.2(b) or G.S. 15A-145.3(b), which require “dismissal by the State.” The different wording distinguishes the circumstances in which the two types of dispositions are eligible for expunction. If a court dismisses a case for other reasons—for example, it finds that the State has failed to prove its case—such a dismissal may satisfy the alternative statutory criteria of “a finding of not guilty or other adjudication of innocence.” Resort to an expunction under these provisions may no longer be necessary, however, with the expansion in 2017 of expunctions of dismissals under G.S. 15A-146, which allows unlimited expunctions of dismissals and does not contain an age limitation as under the provisions discussed here. See supra Expunctions of Dismissals and Similar Dispositions: Dismissal or Finding of Not Guilty of Misdemeanors, Felonies, and Certain Infractions.

In a technical corrections act in 2017, the General Assembly added a violation of G.S. 90-113.22A, misdemeanor possession of marijuana paraphernalia, to the discharge and dismissal provisions in G.S. 90-96, which had the result of making that disposition subject to expunction under G.S. 15A-145.2(a). See S.L. 2017-102, sec. 38 (H 229). The act did not make a conforming change to G.S. 15A-145.2(b) or G.S. 15A-145.3(b), but an expunction of a dismissal under those subsections may still be available because G.S. 90-113.22A states that a violation is a lesser offense of G.S. 90-113.22, for which an expunction is available.

 

Table 12. Finding of Not Guilty or Dismissal of Controlled Substance, Drug Paraphernalia, and Toxic Vapor Offenses

Matters Subject to Expunction

Principal Restrictions on Expunction

Applicable Statutes and Forms

  • Dismissal or finding of not guilty on or after Jan. 1, 2012, of
    • misdemeanor possession of a controlled substance within Schedules I through VI of Article 5 of G.S. Ch. 90, or
    • felony under G.S. 90-95(a)(3)
  • Dismissal or finding of not guilty before Jan. 1, 2012, of
    • misdemeanor possession of a controlled substance within Schedules II through VI of Art. 5 of G.S. Ch. 90, or
    • felony possession of less than one gram of cocaine under G.S. 90-95(a)(3)
  • Dismissal or finding of not guilty of
    • misdemeanor under G.S. Ch. 90, Art. 5A (toxic vapors), or
    • possession of drug paraphernalia under G.S. 90-113.22 and possibly G.S. 90-113.22A
  • Offense allegedly occurred when person was age 21 or younger