North Carolina law allows the expunction of various kinds of proceedings that end in the dismissal of a case. All involve cases that end without a conviction. The main types of dismissals are discussed briefly below and in greater detail in the parts of this guide on the particular dismissal.

Dismissals and Acquittals

G.S. 15A-146 is the main mechanism for cases that end without a conviction. It covers dismissals and findings of not guilty. It imposes no preconditions for an expunction other than those stated in that statute.

Diversions

Generally. Both pre-plea and post-plea diversions are types of dismissals. Ordinarily, neither type of diversion is considered a conviction because neither ends with an adjudication of guilt.[1] The presence of a diversion on a person’s record, although not a conviction, may still have adverse consequences. To obtain an expunction, the defendant must meet both the conditions for obtaining the diversion and the conditions for expunction.

Both types of diversions in North Carolina take place after the issuance of charges. North Carolina state law does not contain procedures for pre-charge deferrals in adult criminal cases. Compare David W. Andrews & John Rubin, North Carolina Juvenile Defender Manual § 5.4, Diversion (UNC School of Government, 2017) (discussing diversion procedure in juvenile cases before the filing of a delinquency petition). Nor does state law require prosecutor approval before the issuance of criminal charges except in limited instances. See, e.g., G.S. 15A-301(b1) (charges against school employees); G.S. 14-190.20 (obscenity offenses).

Recent legislative changes may slow issuance of criminal charges in citizen-initiated cases. Under North Carolina law, an alleged victim of a crime may appear before a magistrate and present evidence of a crime, usually through his or her sworn testimony. If the magistrate finds probable cause, the magistrate may issue criminal charges without involvement by a law enforcement officer or prosecutor. Jeff Welty, Private Citizens Initiating Criminal Charges, N.C. Crim. L., UNC Sch. of Gov’t Blog (Apr. 9, 2015). Recent legislation limits the issuance and adjudication of citizen-initiated charges. Now, a magistrate may not issue criminal charges unless the citizen-complainant presents his or her testimony by written affidavit or an exception applies, such as corroborating law enforcement investigation. G.S. 15A-304(b), revised by S.L. 2017-176 (S 384). If citizen-initiated misdemeanor charges are issued, the cases are initially directed to mediation unless an exception applies. G.S. 7A-38.5(e).

The ultimate form of diversion is decriminalization. The North Carolina Office of Indigent Defense Services (IDS) proposed that several low-level misdemeanors be reclassified as infractions, both to save costs on indigent defense representation and reduce potential collateral consequences. Under North Carolina law, an infraction is a civil violation of law, not a criminal offense. The General Assembly decriminalized some of the recommended offenses but reduced more to Class 3 misdemeanors, which is the lowest misdemeanor classification in North Carolina, and eliminated the possibility of imprisonment for those offenses except when the defendant has a longer criminal record. See S.L. 2013‐360, sec. 18B.13–18B.15 (S 402), as amended by S.L. 2013‐385, sec. 4–6 (S 182). As a result, many indigent defendants have no right to appointed counsel in these cases because they face no imprisonment; however, they still face collateral consequences if convicted because a Class 3 misdemeanor remains a crime. See John Rubin, Appointment of Counsel for Class 3 Misdemeanors (UNC School of Government, Nov. 2013); see also Alexandra Natapoff, Misdemeanor Decriminalization, 68 Vand. L. Rev. 1055, 1065–69 (May 2015) (criticizing this approach); Jeff Welty, Overcriminalization in North Carolina, 92 N.C. L. Rev. 1935 (Sept. 2014) (discussing trends in North Carolina).

Deferred prosecutions. A deferred prosecution is a form of pre-plea diversion. It is considered a pre-plea procedure because it is done before a defendant pleads guilty or is found guilty. A prosecutor may require as a part of a deferred prosecution agreement that the defendant admit the allegations in the charges, which can be used against the defendant if he or she violates the deferred prosecution agreement and the prosecution proceeds. A guilty plea is not proper with a deferred prosecution, however. See State v. Baker, ___ N.C. App. ___, 786 S.E.2d 432 (2016) (unpublished).

A deferred prosecution may be statutory or nonstatutory. A statutory deferred prosecution is a procedure by which the court places a person on probation for the offense and defers the proceedings. Generally, to qualify for a statutory deferred prosecution, the defendant must meet the preconditions in G.S. 15A-1341(a1). Deferred prosecutions with different preconditions are authorized for certain tobacco offenses and drug offenses handled through drug treatment courts. A prosecutor also may enter into a nonstatutory deferred prosecution agreement, which is generally without court involvement or probation. For both statutory and nonstatutory deferred prosecutions, once the defendant complies with the agreement, the prosecutor dismisses the charges.

A dismissal pursuant to a deferred prosecution is subject to expunction if the defendant meets the requirements of G.S. 15A-146.

Discharges and dismissals. A discharge and dismissal, also called a conditional discharge, is a form of post-plea diversion. It is considered a post-plea procedure because it is done after a defendant pleads guilty or is found guilty. Like a deferred prosecution, a discharge and dismissal is a procedure by which the court places a person on probation for the offense and defers the proceedings. Various statutes authorize discharges and dismissals. G.S. 15A-1341(a4) allows a discharge and dismissal for Class H and I felonies and misdemeanors. Other statutes allow discharges and dismissals for specific offenses, such as drug and prostitution offenses. The general discharge and dismissal statute and the statutes dealing with specific offenses provide alternative ways of obtaining a discharge and dismissal—a person should be able to obtain a discharge and dismissal under any statute under which he or she qualifies. Under all of the statutes, if the person successfully completes the terms of the probation, the court discharges the person and dismisses the proceedings.

A discharge and dismissal is subject to expunction, but the procedures may vary depending on the statute being used. Some discharge and dismissal statutes specifically refer to G.S. 15A-146; therefore, a person must satisfy the requirements of that statute to obtain an expunction. See G.S. 14-458.1(c) (expunction of cyberbullying offenses).

Some discharge and dismissal statutes do not contain any provision for expunction. See G.S. 14-313(f) (discharge and dismissal of tobacco offenses); G.S. 15A-1341(a4) (discharge and dismissal of Class H and I felonies and any class of misdemeanor). Because a discharge and dismissal is a form of dismissal, a person should be able to proceed under G.S. 15A-146 to obtain an expunction. G.S. 15A-146 does not distinguish between dismissals by a court, under the discharge and dismissal procedures or on other grounds, and dismissals by a prosecutor.

Some discharge and dismissal statutes have their own expunction provisions. See G.S. 15A-145.1 (expunction of discharge and dismissal of gang offense under G.S 14-50.29 and G.S. 14-50.30); G.S. 15A-145.2(a) (expunction of discharge and dismissal of drug and paraphernalia offenses under G.S. 90-96); G.S. 15A-145.3(a) (expunction of discharge and dismissal of toxic vapor offenses under G.S. 90-113.14); G.S. 15A-145.6 (expunction of discharge and dismissal of prostitution offenses under G.S. 14-204). The question arises whether these statutes provide the exclusive mechanism for expunging a discharge and dismissal or an alternative mechanism to G.S. 15A-146. In support of the former position, it could be argued that the existence of specific expunction provisions precludes the use of other expunction provisions. The latter position has greater statutory support, however. Generally, North Carolina’s relief statutes are cumulative; a person may obtain relief under any statute under which he or she qualifies. Although many of the statutes bar relief if a person has already obtained relief under another statute, none state that the mere availability of relief under one statute is a bar to relief under another statute. When G.S. 15A-146 was first enacted, it contained such an exclusion. It allowed relief “[e]xcept as otherwise provided in G.S. 90-96,” the statute on expunction of a discharge and dismissal of a drug offense. S.L. 1979-61 (H 44). The General Assembly subsequently broadened G.S. 15A-146 to eliminate that exclusion as well as other limitations, such as the requirement that the proceedings must have occurred before a person turned 18 and the disqualification for prior misdemeanor convictions. S.L. 1985-636 (H 997); S.L. 1991-326 (S 744). Recently, the General Assembly amended G.S. 15A-146(d) to specify a fee of $175 for a petition under G.S. 15A-146 to expunge a conditional discharge. The fee, and by implication the availability of an expunction under G.S. 15A-146, applies to all conditional discharges. S.L. 2014-119 (H 369).

Other “Dismissals”

Some dispositions may not be called dismissals but, because they terminate the case without a conviction, they should be eligible for expunction under G.S. 15A-146 if the defendant meets the requirements of that statute. Thus, a finding of “no true bill” by a grand jury—that is, a decision by a grand jury not to indict a defendant—terminates the case unless the prosecutor reindicts soon thereafter for a lesser offense. See G.S. 15A-629 (setting time limit). A case is likewise terminated by a finding of “no probable cause” by a magistrate following arrest or by a district court judge at a probable cause hearing. G.S. 15A-146 imposes no waiting period for petitioning to expunge a dismissal in these or other circumstances.

Another disposition that effectively constitutes a dismissal involves conviction of a lesser offense than the one charged. For example, suppose the defendant is initially charged with a felony and pleads guilty to a lesser misdemeanor offense. Conviction of the lesser offense terminates the greater charge without a conviction and effectively constitutes a dismissal of the greater charge. A defendant therefore should be entitled to obtain an expunction of the greater charge if he or she otherwise meets the requirements of G.S. 15A-146(a). For a further discussion of the ways in which this issue may arise, see infra Expunctions of Dismissals and Similar Dispositions: Dismissal or Finding of Not Guilty of Misdemeanors, Felonies, and Certain Infractions.

Matters Not Subject to Expunction as Dismissals

A type of determination that is called a dismissal but does not terminate the proceedings is a dismissal with leave. It is authorized in narrow circumstances—that is, when a defendant fails to appear in court on criminal charges or the defendant has not yet completed a deferred prosecution. See G.S. 15A-932. A dismissal with leave removes the case from the court’s docket, but the case remains pending and may be reactivated by the prosecutor by giving notice to the court. Because a dismissal with leave does not terminate the proceedings, this guide’s view is that it is not a type of dismissal that is eligible for an expunction.

A prayer for judgment continued is not a dismissal and is not subject to expunction on that basis. It may be subject to expunction on the same grounds as expunction of a conviction, however. See infra Appendixes: Frequently Asked Questions (Prayer for Judgment Continued (PJC)).


[1] With a pre-plea diversion, the defendant does not plead guilty and the court does not find the defendant guilty. With a post-plea diversion, the court accepts the defendant’s guilty plea or finds the defendant guilty but in essence vacates the plea or finding at the end of the proceedings. Most of North Carolina’s post-plea diversion statutes state explicitly that a post-plea diversion does not constitute a conviction. See G.S. 14-50.29(c) (gang offense); G.S. 14-204(b)(7) (prostitution offense); G.S. 14-458.1(c) (cyberbullying offense); G.S. 90-96(a) (drug offense); G.S. 90-113.14(a) (toxic vapor and drug paraphernalia offenses). The newest post-plea diversion statute, for Class H and I felonies and misdemeanors of any class, states that any plea of guilty or finding of guilt is withdrawn if the person completes the terms of the discharge and dismissal. G.S. 15A-1341(a6). Until a person completes a post-plea diversion, the proceeding may count as a conviction. See State v. Hasty, 133 N.C. App. 563 (1999) (holding that person who pled guilty and was on probation pending a discharge and dismissal had a prior conviction for the purpose of sentencing for new offenses committed during the period of probation).

Notwithstanding North Carolina’s treatment of diversions, some entities may consider a pre-plea or post-plea diversion to be the equivalent of a conviction. See Sejal Zota & John Rubin, Immigration Consequences of a Criminal Conviction in North Carolina § 4.2C, 90-96 and 15A-1341 Deferrals (UNC School of Government, 2017).