Although each type of expunction of an adult criminal matter has its own preconditions, all involve the same basic procedure with some variations. The petitioner must file a petition for an expunction with the appropriate state court and show that he or she meets the criteria for an expunction. Only one statute provides for automatic expunction, without a petition. See infra Expunctions of Dismissals and Similar Dispositions: Charges Resulting from Identity Theft or Mistaken Identity; see also infra Expunctions of Dismissals and Similar Dispositions: DNA Records (directing district attorney to petition for expunction). If the person meets the criteria, the statutes typically require that the court grant the petition and order an expunction; they do not give the court discretion to deny the petition.[1]

The North Carolina Administrative Office of the Courts (AOC) has issued forms for most types of expunctions, which specify the materials that must accompany a petition for expunction and the findings that the court must make. In areas in which the statutes are ambiguous, the drafters of the AOC forms (the AOC Forms Committee) sometimes have had to interpret the statutory requirements and incorporate them into the forms. In the occasional instance in which this guide’s interpretation differs from the interpretation in the AOC forms, the difference is noted. Petitioners who disagree with the AOC’s interpretation still must use the forms in petitioning for an expunction—the expunction statutes now require use of AOC forms for ease of administration.[2] Petitioners should modify the applicable form if needed and explain the grounds for the modification to the court, which has the authority to depart from the form. For a discussion of this guide’s approach to ambiguous provisions in the expunction and other relief statutes, see infra Overview: Interpreting Relief Statutes.

Place of Filing

Generally, the expunction statutes identify the court in which the petitioner must file for an expunction—that is, the venue (location) and jurisdiction (level of court) for the filing of the petition. Most explicitly require filing in the court of the county where the person was convicted. See, e.g., G.S. 15A-145(a) (so stating for expunction of conviction under that statute); G.S. 15A-145.4(c) (to same effect for expunction under that statute). A few of the expunction statutes do not specify. See, e.g., G.S. 15A-145.2(b), (c) (stating only that person may apply to the court for expunction); G.S. 15A-145.3(b), (c) (to same effect). For convictions, the appropriate venue and jurisdiction is the county and trial division in which the defendant was convicted. The appropriate court for filing is not as clear for expunctions of dismissals. G.S. 15A-146(a) directs that the petition be filed with the court of the county “where the charge was brought,” which establishes the venue for filing. As for the level of court, expunctions of dismissals are generally handled in the trial division—district or superior—where the case was dismissed. See also G.S. 15A-147(a) (explicitly directing that expunction petitions in identity theft cases be filed “where the charge was last pending”). For expunctions of dismissals in multiple courts—for example, dismissals of related charges pending in district and superior court—G.S. 15A-146(a1) directs the “court” to hold a hearing on the petition. This wording suggests the possibility that a single court could rule on expunction of all the dismissals. For a further discussion of expunging multiple dismissals, see infra Expunctions of Dismissals and Similar Dispositions: Dismissal or Finding of Not Guilty of Misdemeanors, Felonies, and Certain Infractions.

Record Checks

Most expunction statutes require a person seeking an expunction to consent to two record checks—one by the AOC about any prior expunctions obtained by the petitioner and the other by the North Carolina Department of Public Safety, through the State Bureau of Investigation (SBI), about any prior criminal convictions. See, e.g., G.S. 15A-145.2(a)(3a); compare, e.g., AOC-CR-266 (Apr. 2018) (stating that a record check by the AOC and SBI are not required for expunction petitions under G.S. 15A-145.2(b)); AOC-CR-268 (Apr. 2018) (to same effect under G.S. 15A-145.3(b)). A prior expunction check is not required for expunctions of dismissals under G.S. 15A-146 because the statute no longer makes a prior expunction a bar. A criminal record check by the SBI is not specifically required by G.S. 15A-146, but the petition and order form developed by the AOC directs the court to order one. See AOC-CR-287 (Apr. 2018) (expunction of dismissal); AOC-CR-288 (Apr. 2018) (expunction of acquittal).[3] Legislation enacted in 2017 clarified the responsibilities of the clerk of court for record checks. S.L. 2017-195 (S 445) amended several statutes to specify that the clerk forwards orders for record checks to the appropriate agencies. See, e.g., G.S. 15A-145(a)(4). Previously in some counties, after the judge ordered a record check, the petitioner was responsible for sending the order to the appropriate agencies.

Reports from the SBI sometimes include its interpretation about the petitioner’s eligibility for an expunction, not just a record of the petitioner’s convictions. The SBI’s interpretation is not binding on the court, which ultimately determines whether the petitioner has satisfied the statutory criteria. See also Appendixes: Frequently Asked Questions (Reconsideration and Enforcement of Expunction Orders) (discussing whether SBI may obtain further review after court orders expunction).

Service

Several expunction statutes specify that the petition and attached materials be served on the district attorney. See G.S. 15A-145; G.S. 15A-145.1; G.S. 15A-145.4; G.S. 15A-145.5; G.S. 15A-145.6; see also G.S. 15A-147 (requiring that prosecutor receive notice of hearing on petition). Although not statutorily required, the AOC form petitions for these expunction petitions contain a space for the prosecutor to confirm receipt of service. A notable exception to the usual service requirements is G.S. 15A-146 on expunction of dismissals, which does not specifically require service. But cf. G.S. 15A-146(b1) (requiring service on district attorney of petition to expunge DNA records under the limited circumstances in that subsection). Although service is ordinarily required for court filings, the General Assembly may have intended to streamline the proceedings for expunctions of dismissals by not requiring the district attorney’s involvement. Local practice may vary. See also G.S. 15A-145.2 (statute and accompanying AOC form do not specifically require service); G.S. 15A-145.3 (to same effect).

Several expunction statutes set a time limit for the prosecutor to object after receiving an expunction petition. See G.S. 15A-145 (10 days); G.S. 15A-145.1 (10 days); G.S. 15A-145.4 (30 days): G.S. 15A-145.5 (30 days plus an additional 30 days for good cause); G.S. 15A-145.6 (30 days). A failure to comply with these deadlines may not waive potential objections because record checks often have not been completed by then. Compare G.S. 15A-173.4 (requiring notice to prosecutor at least three weeks before hearing on petition for certificate of relief rather than basing deadline to object on filing date of petition).

Fees

For most types of expunction petitions, the filing fee is currently $175. The fee does not apply if the court allows the petitioner to proceed as an indigent person. See G.S. 15A-145(e); G.S. 15A-145.1(d); G.S. 15A-145.2(d); G.S. 15A-145.3(d); G.S. 15A-145.4(j); G.S. 15A-145.5(g). The expunction statutes do not specifically define indigency, but G.S. 1-110 sets forth the criteria for the filing of a civil action as an indigent person, including representation by a legal services organization for poor people. Revised AOC-G-106, Petition to Sue/Appeal/File Motions as an Indigent (Feb. 2018), allows the filing of an expunction petition as an indigent person on this basis. Some expunction statutes impose no filing fee. See G.S. 15A-145.6 (prostitution offenses); G.S. 15A-147 (identity theft and mistaken identity); G.S 15A-148 (DNA records); G.S. 15A-149 (pardons); see also G.S. 15A-173.1 through G.S. 15A-173.6 (imposing no filing fee for certificate of relief). G.S. 15A-146 imposes a filing fee of $175 for petitions to expunge a dismissal after compliance with a deferred prosecution agreement or the terms of a discharge and dismissal but not for acquittals or other dismissals.[4]

Orders

If the court grants an expunction petition, the clerk of court must file the granted petition with the AOC and must transmit the order to government agencies required by the order to expunge their records. G.S. 15A-150(b). The AOC must provide a notice to delete records covered by the order to private entities with which the AOC has a licensing agreement for bulk extracts of criminal record data, and that entity in turn must notify entities to whom it provides bulk extracts of data. G.S. 15A-150(d).

The clerk of court also must provide a certified copy of the order to the petitioner. G.S. 15A-150(b). The AOC takes the position that the clerk must provide a certified copy to the petitioner at no charge because it is part of the regular disposition of the case within the meaning of G.S. 7A-308(b). The petitioner also may obtain a copy of the granted petition from the AOC. See G.S. 15A-151(a)(2) (amended by S.L. 2017-195 (S 445) to require the AOC, effective for expunction petitions filed on or after December 1, 2017, to maintain a file of granted petitions and provide them on request to the person who received the expunction); see also G.S. 15A-152 (allowing recipient of expunction to obtain confirmation of expunction from AOC for the purpose of certain litigation).

For a discussion of appellate review of decisions on expunction petitions, see infra Appendixes: Frequently Asked Questions (Reconsideration and Enforcement of Expunction Orders); see also John Rubin, Appeals of Expunction Decisions, N.C. Crim. L., UNC Sch. of Gov’t Blog (Oct. 10, 2017). [The Court of Appeals withdrew the opinion discussed in this blog post and substituted State v. J.C., ___ N.C. App. ___, 808 S.E.2d 154 (2017), temp. stay allowed, ___ N.C. ___, 806 S.E.2d 313 (2017); the analysis in the new opinion does not affect the discussion of this issue in the blog post.]


[1] Two statutes give the court some discretion on expunction petitions by providing that the court “may” order an expunction if the person meets the statutory requirements. 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. Some statutes also impose good conduct requirements but do not define the terms. See, e.g., G.S. 15A-145 (requiring good behavior for two years after conviction to be expunged); G.S 15A-145.6 (requiring good moral character since conviction).

[2] Some statutes specifically require that petitioners use the AOC form petition for an expunction. See, e.g., G.S. 15A-146(c) (dismissals); G.S. 15A-147(a2) (identity theft and mistaken identity). Others state only that petitioners use the AOC form for obtaining a record check, see, e.g., G.S. 15A-145.5(c)(4) (older nonviolent felonies and misdemeanors), but the record check is an integrated part of the AOC form petition.

[3] The court may be able to determine whether a person has a prior felony conviction at the conclusion of the case, without a record check by the SBI. If so, the court could order an expunction immediately, without the delay and attendant costs of a record check by the SBI. Although G.S. 15A-146 does not require a record check by the SBI, courts may be reluctant to proceed without one given that the AOC form directs that one be conducted.

[4] The filing fee clearly applies to a dismissal under a statutory deferred prosecution; whether it applies to a dismissal under a nonstatutory deferred prosecution agreement is not as clear. For a discussion of the differences between the two types of deferred prosecutions, see infra Expunctions of Dismissals and Similar Dispositions: Types of Dismissals.