Relief from a Criminal Conviction (2023 Edition)

In the past, North Carolina’s expunction statutes provided a narrow path to relief, limiting expunctions to cases involving drug offenses committed before age 22, convictions for misdemeanors committed before age 18 and 21, and dismissals and acquittals. In 2009, the North Carolina General Assembly began to give greater attention to this area of law, reorganizing and expanding the expunction statutes in recognition of the adverse impact of a criminal record on a person’s future. The principal changes since 2009 are summarized below. They are incorporated into this guide where applicable. Legislation enacted before 2009 is summarized in Appendixes: Previous Legislation.

In 2009, the General Assembly enacted S.L. 2009-577 (H 1329), referred to in this guide as the 2009 Consolidation Act. The changes made by the 2009 Consolidation Act were primarily organizational. The legislation moved the substance of the expunction provisions from the statutes governing the particular offenses at issue—for example, the statutes on drug offenses in Chapter 90 of the General Statutes—to new statutes in Chapter 15A of the General Statutes, the chapter on criminal procedure. The legislation did not rewrite the substance of the expunction provisions. The new statutes retained most of the previous language, with each type of expunction in its own statute with its own requirements and procedures. A close comparison of the old and new provisions reveals some substantive changes, however, which are discussed in this guide in connection with the expunctions affected. The 2009 Consolidation Act took effect with expunction petitions filed on or after December 1, 2009, meaning that it applies whether the offense or conviction occurred before or after that date.[1]

In 2010, the General Assembly enacted S.L. 2010-174 (H 726), which made several technical changes to the expunction statutes. This guide refers to that legislation as the 2010 Technical Changes Act. Among other things, the legislation reconciled conflicts and fixed technical errors in the 2009 Consolidation Act. It also made technical changes to a second act on expunctions enacted in 2009, S.L. 2009-510 (S 262), which did not take effect until October 1, 2010. This second act from 2009 primarily addressed the giving of notice of expunction orders to entities that have records to be expunged.[2]

In 2011, the General Assembly passed two acts affecting expunctions. In S.L. 2011-278 (S 397), the General Assembly created a new expunction opportunity for a first offender who committed a nonviolent felony when he or she was under the age of 18. See infra Expunctions on Basis of Age: Nonviolent Felony Convictions for Offenses Committed before Age 18. In S.L. 2011-192 (H 642), the Justice Reinvestment Act of 2011 (referred to in this guide as the 2011 JRA), the General Assembly made numerous changes to North Carolina’s sentencing and probation laws, including changes affecting expunctions in drug cases. (The 2011 JRA was amended by two later acts during the 2011 session, S.L. 2011-391 (H 22) and S.L. 2011-412 (H 335), but the amendments did not affect expunctions.) Most importantly for this discussion, the revised statutes allow a person to obtain an expunction of any felony drug possession offense if the person meets the requirements for an expunction. This change affects the three types of expunctions available specifically in drug cases: those involving a discharge and dismissal under G.S. 90-96, those involving not guilty determinations or dismissals, and those involving convictions. See infra Expunctions of Drug-Related Offenses.

In 2012, the General Assembly enacted two more acts affecting expunctions. In S.L. 2012-191 (H 1023), the General Assembly created a new expunction for older nonviolent misdemeanor and felony convictions (see infra Expunctions on Basis of Age: Older Nonviolent Misdemeanor and Felony Convictions) and repealed the statute authorizing expunction of older misdemeanor larceny convictions (see infra Expunctions on Basis of Age: Older Misdemeanor Larceny Convictions). The legislation also made minor changes, discussed in the applicable parts of this guide, to other types of expunctions already in effect. In S.L. 2012-149 (S 707), the General Assembly created a new cyberbullying offense by students against school employees and authorized discharge and dismissal of the case on completion of probation and, if the person qualifies, expunction. See infra Expunctions of Other Offenses: Discharge and Dismissal of Cyberbullying Offenses.

In 2013, in S.L. 2013-368 (S 683), the General Assembly revised North Carolina’s laws on prostitution and prostitution-related offenses and, in connection with those changes, added a discharge and dismissal procedure, expunction opportunity, and additional basis for a motion for appropriate relief. See infra Expunctions of Other Offenses: Discharge and Dismissal or Conviction of Prostitution Offenses. In S.L. 2013-53 (S 91), the General Assembly tightened the restrictions on the use of expunged information by employers, educational institutions, and government agencies. See supra Overview: Effect of Expunction. In S.L. 2013-24 (S 33), the General Assembly tightened the restrictions on consideration of criminal convictions by occupational licensing boards. See supra Impact of a Criminal Conviction.

In 2014, in S.L. 2014-119 (H 369), the General Assembly narrowed its 2012 authorization of expunction of older felonies under G.S. 15A-145.5, eliminating the possibility for expunction of felony breaking and entering convictions for petitions filed on or after December 1, 2014; petitions for expunctions of such offenses before that date remain valid. See infra Expunctions on Basis of Age: Older Nonviolent Misdemeanor and Felony Convictions. Also in S.L. 2014-119, the General Assembly expanded the circumstances in which a person may obtain a discharge and dismissal. Effective December 1, 2014 (see section 2(h) of the act), G.S. 15A-1341 authorizes a discharge and dismissal for any Class H or I felony or misdemeanor (subject to an exception enacted in 2015, discussed below) if the defendant meets the statutory requirements. A person who obtains a discharge and dismissal under the amended statute should be able to obtain an expunction under G.S. 15A-146, which authorizes expunction of dismissals, if the person meets the requirements of that statute. See infra Expunctions of Dismissals and Similar Dispositions: Discharge and Dismissal of Misdemeanors and Class H and I Felonies.

In 2015, the General Assembly made a set of major changes and several lesser ones. The major changes, in S.L. 2015-150 (H 273), apply to impaired driving offenses. Effective for orders placing a person on probation on or after December 1, 2015, G.S. 15A-1341 bars a deferred prosecution and discharge and dismissal for an impaired driving offense under G.S. 20-138.1. Effective for expunction petitions filed or pending on or after December 1, 2015, amended G.S. 15A-145, G.S. 15A-145.4, and G.S. 15A-145.5 to bar an expunction of a conviction of an offense involving impaired driving as defined in G.S. 20-4.01(24a). S.L. 2015-40 (H 224) made minor record-keeping changes. It revised G.S. 15A-151(a) to allow law enforcement agencies, effective July 1, 2015, to view for employment purposes expunctions of prostitution offenses, and it required clerks of court, effective for discharges and dismissals on or after December 1, 2015, to report to the North Carolina Administrative Office of the Courts (AOC) the completion of any discharge and dismissal except one obtained under G.S. 14-458.1 and G.S. 14-458.2 for a cyberbullying offense. (Under the latter statutes, a prior discharge and dismissal does not disqualify a person from receiving a discharge and dismissal.) Effective for offenses committed on or after December 1, 2015, S.L. 2015-58 (H 879) amended G.S. 7B-2512 to require the court at disposition in a delinquency case to notify the juvenile of the possibility of expunging the records of the case under G.S. 7B-3200. Effective for charges filed on or after December 1, 2015, S.L. 2015-202 (S 233) amended G.S. 15A-147 on expunction of charges resulting from identity theft to expand the statute to cover charges based on mistaken identity and to make expunction automatic, without a petition, if the court or prosecutor dismisses the charge. Effective September 23, 2015, S.L. 2015-247 (H 173) added G.S. 15A-150(e) to authorize the AOC to enter into agreements with various state agencies to transmit expunction information to them electronically. S.L. 2015-264, sec. 5 (S 119), made a technical correction only.

In 2016, the General Assembly made no changes to the state’s expunction laws.

In 2017, in S.L. 2017-195 (S 445), the General Assembly enacted several changes. Most important, effective for petitions filed on or after December 1, 2017, the act reduced the waiting period to expunge older nonviolent felonies from 15 to 10 years and older nonviolent misdemeanors from 15 to 5 years under G.S. 15A-145.5. The act also significantly revised G.S. 15A-146, which allowed an expunction of a dismissal if the person did not have a prior felony conviction and had not received a previous expunction. Effective for petitions filed on or after December 1, 2017, the act removed the prior expunction bar, making it possible for a person to receive an expunction of a dismissal as long as the person does not have a felony conviction. In conjunction with these expanded expunction opportunities, the 2017 act added G.S. 15A-151.5, which gives prosecutors the right to obtain from the AOC the record of a person’s previous expunctions and makes an expunction of a conviction admissible as a conviction for the purpose of determining the person’s prior criminal record level at sentencing if the person is convicted of a subsequent offense. This change applies to records expunged on or after July 1, 2018, which appears to mean expunction orders entered on or after that date and thus includes petitions filed before or after that date. The 2017 act also amended several statutes to clarify procedures in expunction cases. For a more detailed summary of the 2017 act, see John Rubin, Expanded Expunction Opportunities, N.C. Crim. L., UNC Sch. of Gov’t Blog (Aug. 1, 2017). In S.L 2017-102, sec. 38 (H 229), the General Assembly made a technical correction by adding a violation of G.S. 90-113.22A, misdemeanor possession of marijuana paraphernalia, to the discharge and dismissal provisions in G.S. 90-96.

In 2018, in S.L. 2018-72 (H 670) the General Assembly added new offenses involving threats of mass violence at schools and places of worship and, accompanying those offenses, authorized a discharge and dismissal of an adjudication of guilt and an expunction of proceedings involving those offenses. It provided for the same relief for making a false threat in violation of G.S. 14-277.5. The act applies to offenses committed on or after December 1, 2018. In S.L. 2018-79 (H 774), the General Assembly modified the eligibility criteria in G.S. 15A-173.2 for obtaining a certificate of relief, effective for petitions filed on or after December 1, 2018. The act expanded eligibility by allowing a person to obtain a certificate of relief if he or she has three or fewer prior Class H or I felony convictions as well as any prior misdemeanor convictions. If the felony convictions occurred during the same session of court, the convictions count as a single conviction. The act contracted eligibility by making a person ineligible if convicted of a Class G (or higher class) felony. Amended G.S. 15A-173.2 requires a $50 filing fee unless the person is indigent, directs the district attorney to provide the person’s criminal history to the court, provides that a certificate of relief is automatically revoked if the person is subsequently convicted of a felony or misdemeanor other than a traffic violation (also reflected in amended G.S. 15A-173.4), and requires the person to notify any employer, landlord, or other party who has relied on a certificate of relief of any conviction, modification, or revocation within ten days. (S.L. 2018-145 (S 469) also made a technical correction to the certificate of relief statutes.)

In 2019, the General Assembly enacted G.S. 15A-145.8 to require the expunction of juvenile matters transferred to superior court if the matter is remanded to district court on joint motion of the prosecutor and juvenile. The expunction includes DNA records. See S.L. 2019-186 (S 413), as amended by S.L. 2019-243 (H 470) (effective for offenses committed and expunctions ordered on or after December 1, 2019). In S.L. 2019-158 (H 198), the General Assembly enacted a new opportunity to expunge convictions of offenses committed by human trafficking victims, eased the conditions for expunging juvenile adjudications for such victims, and deleted the right to make a motion for appropriate relief for prostitution convictions and replaced it with a right for human trafficking victims to make such motions. Under S.L. 2019-91 (H 771), occupational licensing boards must, rather than may, take a certificate of relief into consideration in making their decisions. See also supra Impact of a Criminal Conviction (discussing other restrictions on consideration of criminal convictions by occupational licensing boards).

In 2020, the General Assembly enacted S.L. 2020-35 (S 562), known as the Second Chance Act. The act affected several aspects of expunction law and procedure in North Carolina, discussed in the applicable part of this guide, and illustrates many of the record clearance issues being considered around the country, including removal of barriers to expunctions of nonconviction records (most notably, no longer are prior convictions, whether for a felony or misdemeanor, a bar), automatic expunction of such records beginning at the end of 2021, expunction relief for juveniles convicted as adults for misdemeanors and lower level felonies (now handled as juvenile matters under North Carolina’s “Raise the Age” legislation), somewhat greater opportunities to expunge older convictions if considered “nonviolent,” and greater access by prosecutors and law enforcement to records of expunctions. See John Rubin, A Second Chance in North Carolina through Expanded Criminal Record Clearance, N.C. Crim. L., UNC Sch. of Gov’t Blog (July 7, 2020).

In 2021, the General Assembly passed several acts affecting expunctions. The biggest changes came in S.L. 2021-118 (S 301), as amended by section 2.3 of S.L. 2021-167 (H 761), which expanded the opportunity for a person to expunge older convictions of “nonviolent” felonies and misdemeanors under G.S. 15A-145.5 but with complex eligibility conditions. For a detailed discussion of those changes, see John Rubin, 2021 Changes to North Carolina’s Expunction Laws, N.C. Crim. L., UNC Sch. of Gov’t Blog (Dec. 8, 2021). The General Assembly enacted the following additional legislation: S.L. 2021-47 (S 255), sec. 15, amended G.S. 15A-150 to clarify that the AOC may give notice of automatic expunctions to affected agencies; S.L. 2021-88 (H 67), sec. 3, made a technical correction to G.S. 15A-151.5 concerning prosecutor access and use of expunged records; S.L. 2021-107 (H 312) amended G.S. 162-2 to provide that a person who has been convicted of a felony is ineligible to be sheriff, regardless of whether the conviction has been expunged, and amended various statutes to require disclosure of expunged felony convictions by candidates for sheriff and disclosure of all expunctions for law enforcement employment and certification; S.L. 2021-115 (H 84) amended G.S. 15A-145, which allows expunction of misdemeanors committed when a person was under age 18, to provide that the statute does not permit expunction of “any offense requiring registration pursuant to Article 27A of Chapter 14 of the General Statutes [the sex offender registration statutes], whether or not the person is currently required to register”; S.L. 2021-118 (S 301) amended the provisions on disclosure to prosecutors of dismissals pursuant to a conditional discharge (in addition to the larger changes to expunctions of older nonviolent felony and misdemeanor convictions); and S.L. 2021-180 (S 105), sec. 16.4, amended G.S. 15A-145.9, which concerns expunctions of offenses by human trafficking victims, to provide that the costs of expunging records may not be taxed against the petitioner.

In 2022, the General Assembly enacted S.L. 2022-47 (H 607), which did the following. It postponed until August 1, 2023, the automatic expunction of dismissed charges, not guilty verdicts, and findings of not responsible under G.S. 15A-146(a4) and directed the AOC to maintain a record of these matters to allow for automatic expunction once the postponement expires. It reconciled the criteria for expunction of one nonviolent misdemeanor conviction and more than one nonviolent misdemeanor conviction in G.S. 15A-145.5(c2) by making a prior conviction a bar only if it was for an offense that is an exception to the definition of a “nonviolent” offense. It revised G.S. 15A-145.5(c4) to extend from 30 to 120 days the period in which a person may petition for an expunction in multiple counties without running afoul of the prior expunction bar in other subsections, and it authorized courts to grant a petition outside the 120-day period for good cause. S.L. 2022-58 (H 560) and S.L. 2022-74 (H 103) made technical corrections to G.S. 15A-150(b).

In 2023, the General Assembly enacted S.L. 2023-103 (H 193), which did the following. It extended S.L. 2022-147 (H 607), which postponed expunctions under G.S. 15A-146(a4), to July 1, 2024. It revised G.S. 15A-145.5(a)(7a) to allow expunctions of felony breaking and entering convictions under G.S. 14-54(a), and it revised G.S. 15A-145.5(c)(2) to impose a 15-year, rather than 10-year, waiting period to expunge one such conviction. The act also revised G.S. 15A-145.5(c2) and (c3) to clarify that a person may not obtain an expunction if he or she (1) has any outstanding warrants or is under indictment or a finding of probable cause for a felony or (2) is free on bond or personal recognizance pending resolution of the case for an offense that would prohibit an expunction. S.L. 2023-134 (H 259) reduced the filing fee for expunctions under G.S. 15A-145.8A (offenders under age 18 at time of offense) and made technical corrections to several expunction statutes. S.L. 2023-56 (H 611) amended G.S. 17C-13 and G.S. 17E-12 to preclude law enforcement commissions from denying, suspending, or revoking a person’s certification based solely on an expunged felony conviction under G.S. 15A-145.4 or G.S. 15A-145.8A, which involve offenses committed before age 18.