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Relief from a Criminal Conviction (2021 Edition)

Older Nonviolent Misdemeanor and Felony Convictions

G.S. 15A-145.5 authorizes expunction of older nonviolent misdemeanor and felony convictions (see Table 4). This type of expunction became effective on December 1, 2012, which means it is available for offenses and convictions that occurred before or after that date. See S.L. 2012-191 (H 1023) (amended by S.L. 2014-119 (H 369)).  The General Assembly expanded the relief available under this statute in 2020 (S.L. 2020-35 (S 562)) and in 2021. S.L. 2021-118 (S 301), as amended by section 2.3 of S.L. 2021-167 (H 761). This discussion concerns the current statutory requirements, which apply to petitions filed on or after December 1, 2021. See also John Rubin, 2021 Changes to North Carolina’s Expunction Laws, N.C. Crim. L., UNC Sch. of Gov’t Blog (Dec. 8, 2021).

The statute contains several interlocking requirements that determine the availability of relief.

Covered Offenses

A conviction is eligible for expunction if it is a “nonviolent felony” or “nonviolent misdemeanor” as defined in G.S. 15A-145.5(a). To meet these definitions and therefore be eligible for an expunction, an offense may not fall into one of several categories—for example, it cannot be a Class A through G felony or a Class A1 misdemeanor, which leaves only Class H and I felonies and Class 1, 2, and 3 misdemeanors eligible for expunction. See State v. Neira, 270 N.C. App. 359 (2020) (holding that G.S. 15A-145.5 did not preclude expunction of conviction of felonious speeding to elude arrest even though evidence showed that defendant was impaired and defendant was convicted in same case of impaired driving; offense of felonious speeding to elude arrest is not an offense involving impaired driving under G.S. 20-4.01(24a), which is the category of offenses excluded from expunction); Kyprianides v. Martin, 234 N.C. App. 665 (2014) (unpublished) (finding that because convictions for misdemeanor cruelty to animals did not fall into excluded categories, they could be expunged under G.S. 15A-145.5). For a discussion of the exclusion of offenses subject to sex offender registration, see Appendixes, Frequently Asked Questions (Offenses Subject to Sex Offender Registration).

A separate subsection, G.S. 15A-145.5(a1), provides that a conviction of impaired driving is not eligible for expunction. Impaired driving was previously identified in G.S. 15A-145.5(a) as an offense that was not nonviolent; as a result, it was not eligible for expunction and also disqualified a person from obtaining an expunction of certain other convictions under G.S. 15A-145.5. Effective for petitions filed on or after December 1, 2021, the General Assembly repealed that portion of G.S. 15A-145.5(a) and enacted G.S. 15A-145.5(a1). As a result, a conviction of impaired driving still cannot be expunged, but it does not bar an expunction of other convictions under G.S. 15A-145.5. See John Rubin, 2021 Changes to North Carolina’s Expunction Laws, N.C. Crim. L., UNC Sch. of Gov’t Blog (Dec. 8, 2021) (discussing impact of creation of separate subsection on impaired driving); see also infra Appendixes, Frequently Asked Questions (Traffic Violations and Driving While Impaired (DWI)).

Number of Eligible Convictions

A person may obtain an expunction of:

  • one nonviolent misdemeanor conviction after five years;
  • multiple nonviolent misdemeanor convictions after seven years;
  • one nonviolent felony conviction after ten years; and
  • two or three nonviolent felony convictions after twenty years.

For all four categories, multiple convictions of nonviolent felonies or nonviolent misdemeanors count as one nonviolent felony or one nonviolent misdemeanor conviction if the convictions occurred during the same session of court. A person who receives an expunction of a misdemeanor conviction may be eligible to expunge felony convictions, and vice versa, if the person satisfies the prior conviction and prior expunction requirements and the waiting periods, discussed below.

For expunctions of two or three nonviolent felony convictions from separate sessions of court, the felony offenses must have been committed within a 24-month period. G.S. 15A-145.5(c3)(4b). For expunctions of more than one nonviolent misdemeanor conviction, there is no such requirement.

Prior Convictions

For the two misdemeanor categories, the person must be conviction-free, other than for a traffic violation, during the applicable waiting period. For the two felony categories, the person must have no felony convictions during the applicable waiting period and no misdemeanor convictions other than for a traffic violation during the five years before the petition.

Each category also contains its own conviction disqualifier that is not time limited. For expunctions of felony convictions and more than one misdemeanor conviction, the disqualifying convictions outside the waiting period are narrower than during the waiting period. To expunge one or more felony convictions, a person may not have any prior misdemeanor conviction that is an exception to the definition of “nonviolent” misdemeanor or any prior felony convictions. To expunge more than one misdemeanor conviction, the person may not have any prior felony or misdemeanor convictions that are an exception to the definition of “nonviolent” felony or misdemeanor.

To expunge one misdemeanor conviction, a person may not have any prior felony or misdemeanor convictions other than for a traffic violation during or outside the waiting period. As a result of the wording of the disqualification for this last category, a person with more than one conviction other than a traffic violation must satisfy the criteria for expunging one or more felony convictions or more than one misdemeanor conviction.

Prior Expunctions

General rules. A prior expunction under G.S. 15A-145.5 disqualifies a person from obtaining a subsequent expunction under G.S. 15A-145.5 except in the following circumstances.

  • An expunction under another statute does not disqualify a person from obtaining an expunction under G.S. 15A-145.5.
  • A person who receives an expunction of a misdemeanor under G.S. 15A-145.5 is able to obtain an expunction of a felony under G.S. 15A-145.5 if the felony occurred before the misdemeanor expunction. The same rule applies in reverse: a person who receives an expunction of a felony under G.S. 15A-145.5 is able to obtain an expunction of a misdemeanor under G.S. 15A-145.5 if the misdemeanor occurred before the felony expunction. Some parts of G.S. 15A-145.5 do not specifically require that a subsequent expunction be for an offense that occurred before a prior expunction. See G.S. 15A-145.5(c2) (misdemeanors); G.S. 15A-145.5(c3) (felonies). Another provision, however, imposes that requirement and appears to be controlling. See G.S. 15A-145.5(c) (“A person previously granted an expunction under this section is not eligible for relief under this section for any offense committed after the date of the previous order for expunction.”).
  • A person who receives an expunction of a misdemeanor under G.S. 15A-145.5 may obtain an expunction of another misdemeanor under G.S. 15A-145.5 if one of the exceptions in subsections (c4) or (c5) apply. The same rules apply to felony expunctions. The exceptions involve convictions from multiple counties and petitions for expunctions filed before December 1, 2021, discussed below. Under G.S. 15A-145.5(c1)(7), the petitioner must acknowledge that unless an exception applies, an expunction of one misdemeanor conviction disqualifies a person from later obtaining an expunction of additional misdemeanor convictions and an expunction of one felony conviction disqualifies a person from obtaining an expunction of additional felony convictions. The applicable AOC forms contain this acknowledgement.

Convictions from multiple counties. New G.S. 15A-145.5(c4) recognizes that a person has the right to petition to expunge convictions from different North Carolina counties. It directs that a petition be filed in each county in which a conviction occurred. It further states that all petitions “shall be filed within a 30-day period.” If a person files petitions in multiple counties within the 30-day window, an expunction in one county does not disqualify the person from obtaining an expunction in other counties. G.S. 15A-145.5(c); see also G.S. 15A-145.5(c1)(6) (requiring that petition include information about filings in other counties). If a person fails to file within the 30-day time limit, an expunction in one county under G.S. 15A-145.5 may bar a person from obtaining an expunction of an otherwise eligible conviction in another county under G.S. 15A-145.5.

The time limit may not be as absolute as it seems. It appears to apply only to expunctions of the same level of offense—that is, misdemeanors or felonies—because of the interplay of G.S. 15A-145.5(c4) and G.S. 15A-145.5(c). Under the latter subsection, a person who received an expunction of one or more misdemeanors is not eligible to expunge additional misdemeanors under G.S. 15A-145.5 except when the person petitions for expunctions in multiple counties within thirty days as provided in G.S. 15A-145.5(c4) (or the person is eligible for an expunction under new G.S. 15A-145.5(c5), discussed below). G.S. 15A-145.5(c) contains the same language for felony expunctions. As a result, a person may be able to obtain an expunction of a misdemeanor after obtaining an expunction of a felony in a different county, and vice versa, without having petitioned for the expunctions within thirty days.

If a petitioner inadvertently fails to petition to expunge eligible convictions in other counties, a court may have the authority to extend the deadline. Several expunction statutes, including G.S. 15A-145.5, set deadlines for prosecutors to object. See Overview: Procedure to Obtain an Expunction (Orders). Without a safety valve, the various deadlines could bar both petitions to expunge and objections to petitions. Cf. In re D.S., 364 N.C. 184, 193–94 (2010) (holding that noncompliance with 15-day deadline, plus 15-day extension, for filing of juvenile delinquency petition following submission of complaint did not deprive court of jurisdiction; court relies on decisions holding that a statute’s use of term “shall” for time in which to act may be directory, not mandatory).

Because of the risk of denial of relief, petitioners and their counsel should carefully investigate the record to identify all convictions and, if from different counties, file all petitions within the 30-day window.

Petitions for expunctions filed before December 1, 2021. Subsection (c5) of G.S. 15A-145.5 is essentially a legacy clause. It allows people who received an expunction of one nonviolent felony conviction pursuant to a petition filed before December 1, 2021, when several new provisions became effective, to obtain an expunction of up to two additional felony convictions if the offenses were committed before the previous expunction and were committed within the same 24-month period as the expunged felony. This subsection also applies to expunctions of nonviolent misdemeanors, allowing people who received an expunction of one or more misdemeanors pursuant to a petition filed before December 1, 2021, to obtain an expunction of additional misdemeanors if the offenses were committed before the previous expunction.

Waiting Periods

Like many relief statutes, the four categories of expunctions under G.S. 15A-145.5 contain a waiting period with two parts, but they have different starting dates and different lengths.

For expunction of one felony conviction, two or three felony convictions, and more than one misdemeanor conviction, the starting date of the waiting period is similar. For example, for expunction of one felony conviction, G.S. 15A-145.5(c)(2)a. states that a petition may not be filed earlier than “10 years after the date of the conviction or 10 years after any active sentence, period of probation, or post-release supervision has been served, whichever occurs later.” This formulation effectively makes the sentence-completion date the starting date of the waiting period because that date will always be the same as and usually later than the date of conviction. The wording is similar for expunction of two or three felony convictions and more than one misdemeanor conviction; the language effectively makes the starting date of the waiting period twenty years after completion of the sentence for the last felony conviction and seven years after completion of the sentence for the last misdemeanor conviction. See G.S. 15A-145.5(c)(1)b.; G.S. 15A-145.5(c)(2)b.

For expunction of one misdemeanor conviction, G.S. 15A-145.5(c)(1)a. states that a petition may not be filed earlier than “five years after the date of the conviction or when any active sentence, period of probation, and post-release supervision has been served, whichever occurs later.” The starting date of the waiting period under this phrasing is subject to two different interpretations. One interpretation is that the person always must wait the required years—in this instance, five years—after completing his or her sentence, which necessarily will be at least five years after the date of conviction and usually longer. An alternative interpretation is that the statute requires that a person wait until (i) five years have passed from the date of conviction or (ii) the person completes the terms of his or her sentence, whichever occurs later. Under this interpretation, the person always must wait five years from the date of conviction before petitioning for an expunction of one misdemeanor conviction; if the person has not completed his or her sentence within five years of conviction, he or she must wait any additional time it takes to complete the sentence. This interpretation is supported by the waiting-period language for the other three categories of expunctions in G.S. 15A-145.5, which specify the number of years a person must wait after both the conviction date and completion of sentence. Finding of fact no. 3 in the applicable AOC form, AOC-CR-298, states that the person must have been convicted of and completed any sentence at least five years before filing of the petition, but this approach seems inconsistent with the statute. For a further discussion of expunction statutes with two-part waiting periods, see infra Appendixes: Frequently Asked Questions (Waiting Periods).

Notice and Order

Most expunction statutes do not require notice to the victim. G.S. 15A-145.5(c) requires the district attorney’s office to make its best efforts to notify the victim of the expunction petition and gives the victim the right, on request, to be present and be heard at the hearing.

Most expunction statutes provide that the court shall or must grant an expunction petition if the court finds that all of the statutory requirements have been met. For expunction of one misdemeanor conviction or more than one misdemeanor conviction, G.S. 15A-145.5(c2) uses this language. In contrast, for expunction of one felony conviction or two or three felony convictions, G.S. 15A-145.5(c3) states that the court may grant an expunction of a nonviolent felony conviction if the statutory requirements are satisfied. Use of the term “may” gives the court some discretion to deny an expunction petition even if the petitioner meets all of the statutory requirements.[1] An order denying a petition must include a finding “as to the reason for the denial.” Although the statute does not specify the possible grounds for denial beyond noncompliance with the statutory requirements, the Court of Appeals has recognized the court’s discretion to deny an expunction for other reasons. See State v. Neira, 270 N.C. App. 359 (2020) (recognizing that use of term “may” in G.S. 15A-145.5 gives judge discretion to deny expunction and stating in dicta that circumstances of offense would have supported discretionary denial in this case). Decisions from other jurisdictions and in other contexts suggest the potential scope of discretion. See generally Cline v. State, 61 N.E.3d 360 (Ind. Ct. App. 2016) (finding that judge abused discretion in denying expunction in light of evidence presented in favor of expunction and remedial purpose of measures enacted by legislature), distinguished by W.R. v. State, 87 N.E.3d 30 (Ind. Ct. App. 2017); People v. Satterwhite, 746 N.E.2d 1238 (Ill. Ct. App. 2013) (holding that judge abused discretion in denying expunction where decision was not based on statutory eligibility requirements or on record evidence of factors justifying denial); see also State v. Thomas, 225 N.C. App. 631 (2013) (in cases subject to sex offender registration, judge may order satellite-based monitoring where Department of Correction (DOC) risk assessment determines that it is not necessary, but judge’s findings must be supported by competent record evidence and must concern matters not already taken into account in DOC’s risk assessment). 

Offense Class

As in some other relief statutes, eligibility for an expunction depends on the class of the offense to be expunged. The question has arisen whether the court should consider the class of offense at the time of offense or the class at the time of the petition for expunction. This guide’s view is that the class of offense at the time of offense controls. See infra Appendixes: Frequently Asked Questions (Offense Class).

Traffic Violations

Like many relief statutes, G.S. 15A-145.5 treats traffic violations differently than other criminal convictions. First, a traffic violation is generally not a bar to expunction of a conviction under G.S. 15A-145.5. This guide takes the view that the term “traffic violation,” as used in the expunction statutes, means any misdemeanor conviction under Chapter 20 of the General Statutes unless otherwise specified. Second, G.S. 15A-145.5 does not exclude Chapter 20 violations, whether felonies or misdemeanors, from the types of convictions that may be expunged except for a felony offense involving a commercial vehicle, which is an exception to the definition of nonviolent offense, and misdemeanor or felony offenses involving impaired driving as defined in G.S. 20-4.01(24a), which are not eligible to be expunged. The meaning of traffic violation, including impaired driving, is discussed further in Appendixes: Frequently Asked Questions (Traffic Violations and Driving While Impaired (DWI)).

Some parts of G.S. 15A-145.5 use the term “traffic offense.” See G.S. 15A-145.5(c)(1)b. (excluding traffic offenses that are not the subject of the expunction petition from the waiting period for expunction of more than one misdemeanor conviction); G.S. 15A-145.5(c2)(6)a. (providing that person must be conviction-free, other than for traffic offense, to expunge one misdemeanor conviction). The terms “traffic offense” and “traffic violation” in G.S. 15A-145.5 appear to have been used interchangeably and have the same meaning—that is, as a misdemeanor conviction under Chapter 20. It seems unlikely that the General Assembly intended to exclude a felony conviction under Chapter 20 from the waiting period for expunging more than one misdemeanor conviction.

 

Table 4. Older Nonviolent Misdemeanor and Felony Convictions

Matters Subject to Expunction

Principal Restrictions on Expunction

Applicable Statutes and Forms

  • Conviction of nonviolent misdemeanor or felony as defined in G.S. 15A-145.5(a), excluding
    • a Class A through G felony or Class A1 misdemeanor;
    • an offense that includes assault as an element;
    • an offense requiring sex offender registration, whether or not the person is currently required to register;
    • an offense involving certain sex-related or stalking offenses;
    • a felony under G.S. Ch. 90 involving methamphetamine, heroin, or sale, delivery, or possession with intent to sell or deliver cocaine;
    • an offense involving certain racially motivated offenses;
    • an offense under G.S. 14-401.16 (contaminating food or drink);
    • an offense under G.S. 14-54(a) or 14-54(a1); 
    • a felony in which a commercial vehicle was used;
    • an offense involving impaired driving as defined in G.S. 20-4.01(24a), which is not excluded from the definition of a nonviolent offense under G.S. 15A-145.5(a) but is designated as ineligible for expunction under G.S. 15A-145.5(a1); and
    • an attempt to commit any of the above offenses
  • For one nonviolent misdemeanor conviction,
    • No prior felony or misdemeanor conviction other than for traffic offense
    • Petition may not be filed earlier than 5 years after date of conviction or when any active sentence, period of probation, and post-release supervision has been served, whichever occurs later
    • Good moral character and no felony or misdemeanor conviction other than for traffic violation during 5-year waiting period
    • No outstanding warrants or pending criminal cases
    • No outstanding restitution orders or judgments representing restitution
    • No prior expunction for misdemeanor conviction under G.S. 15A-145.5 except as allowed by G.S. 15A-145.5(c4) or (c5)
    • No prior expunction for felony conviction under G.S. 15A-145.5 unless current petition is for offense committed before prior expunction
  • For more than one nonviolent misdemeanor conviction,
    • No prior felony or misdemeanor conviction that is excluded from the definition of “nonviolent” felony or “nonviolent” misdemeanor in G.S. 15A-145.5
    • Petition may not be filed earlier than 7 years after date of last conviction, other than for traffic offense not listed in petition, or 7 years after any active sentence, period of probation, and post-release supervision has been served, whichever occurs later
    • Good moral character and no felony or misdemeanor conviction other than for traffic violation during 7-year waiting period
    • No outstanding warrants or pending criminal cases
    • No outstanding restitution orders or judgments representing restitution
    • No prior expunction for misdemeanor conviction under G.S. 15A-145.5 except as allowed by G.S. 15A-145.5(c4) or (c5)
    • No prior expunction for felony conviction under G.S. 15A-145.5 unless current petition is for offense committed before prior expunction
  • For one nonviolent felony conviction,
    • No prior felony conviction
    • No prior misdemeanor conviction that is excluded from the definition of “nonviolent” misdemeanor in G.S. 15A-145.5
    • Petition may not be filed earlier than 10 years after date of conviction or 10 years after any active sentence, period of probation, and post-release supervision has been served, whichever occurs later
    • Good moral character, no felony conviction during 10-year waiting period, and no misdemeanor conviction other than for traffic violation during 5 years before petition
    • No outstanding warrants or pending criminal cases
    • No outstanding restitution orders or judgments representing restitution
    • No prior expunction for felony conviction under G.S. 15A-145.5 except as allowed by G.S. 15A-145.5(c4) or (c5)
    • No prior expunction for misdemeanor conviction under G.S. 15A-145.5 unless current petition is for offense committed before prior expunction
  • For two or three nonviolent felony convictions,
    • No prior felony conviction
    • No prior misdemeanor conviction that is excluded from the definition of “nonviolent” misdemeanor in G.S. 15A-145.5
    • Convictions to be expunged are for offenses committed within 24-month period
    • Petition may not be filed earlier than 20 years after date of conviction or 20 years after any active sentence, period of probation, and post-release supervision has been served, whichever occurs later
    • Good moral character, no felony conviction during 20-year waiting period, and no misdemeanor conviction other than for traffic violation during 5 years before petition
    • No outstanding warrants or pending criminal cases
    • No outstanding restitution orders or judgments representing restitution
    • No prior expunction for felony conviction under G.S. 15A-145.5 except as allowed by G.S. 15A-145.5(c4) or (c5)
    • No prior expunction for misdemeanor conviction under G.S. 15A-145.5 unless current petition is for offense committed before prior expunction


[1] The legislative history of the bill leading to the initial version of G.S. 15A-145.5, H 1023, shows that the General Assembly’s use of the term “may” was intentional. The first edition of the bill used the term “shall,” but the second and subsequent editions used the term “may” and required the court to make findings if it denied a petition.