Relief from a Criminal Conviction

Procedure to Obtain an Expunction

Although each type of expunction of an adult criminal matter has its own preconditions, all involve the same basic procedure. 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. 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 the discretion to deny the petition.[1]

Some 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. Some explicitly require filing in the court 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-145.1(a) (to same effect for expunction of discharge and dismissal of gang offense). Some of the expunction statutes do not specify. See, e.g., G.S. 15A-145.2(a) (stating only that person may apply to the court for expunction); G.S. 15A-145.3(a) (to same effect). Generally, the most 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.” Generally, such expunctions are 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, G.S. 15A-146(a1) directs “[t]he 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 discussion of expunging multiple dismissals that occurred in different courts, see infra Expunctions of Dismissals and Similar Dispositions: Dismissal or Finding of Not Guilty of Misdemeanors, Felonies, and Certain Infractions.

Generally, the expunction statutes require a person seeking an expunction to consent to two record checks—one by the North Carolina Administrative Office of the Courts (AOC) about any prior expunctions obtained by the petitioner and the other by the North Carolina Department of Justice, through the State Bureau of Investigation (SBI), about any prior criminal convictions. See, e.g., G.S. 15A-145.2(a)(3a). For expunctions under statutes that do not explicitly require a record check, the court will still order one if prior expunctions and convictions would bar relief. Thus, G.S. 15A-146 on expunction of dismissals does not specifically require a record check, but the petition and order form developed by the AOC directs the court to conduct one. See AOC-CR-264, Petition and Order of Expunction under G.S. 15A-145(a) and G.S. 15A-146 (Dec. 2015). On return of the record checks, the court determines the petitioner’s eligibility for an expunction. 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).

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 indigent people. Revised AOC-G-106, Petition to Sue/Appeal/File Motions as an Indigent (Mar. 2017), 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); G.S 15A-148 (DNA records); G.S. 15A-149 (pardons). 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.

The 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 has 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 need to modify the forms and explain to the court the grounds for the modification. For a discussion of this guide’s approach to ambiguous provisions in the expunction and other relief statutes, see Overview: Interpreting Relief Statutes.

If the court grants an expunction petition, it is advisable for the petitioner to obtain a certified copy of the order for his or her records. Once the clerk destroys the file, the person may be able to obtain confirmation of the expunction from the AOC (see G.S. 15A-151(a)(2)), but he or she no longer will be able to obtain a copy of the order.

The expunction statutes do not specify a procedure for obtaining appellate review of decisions on expunction petitions. See generally In re Robinson, 172 N.C. App. 272 (2005) (allowing State’s petition for writ of certiorari to court of appeals after State failed to timely appeal order of district court granting expunctions); see also State v. Frazier, 206 N.C. App. 306 (2010) (allowing State’s petition for writ of certiorari to review superior court’s order granting expunction).

[1] But see infra Expunctions on Basis of Age: Nonviolent Felony Convictions for Offenses Committed before Age 18 (noting that a court “may” order that type of expunction if the person meets the statutory criteria); Expunctions on Basis of Age: Older Nonviolent Misdemeanor and Felony Convictions (to same effect).