The Second Chance Act in North Carolina

by Kurtz & Blum, PLLC in Criminal Defense

People shouldn’t be forever haunted by their past mistakes.  That’s why North Carolina recently passed the Second Chance Act into law. The Second Chance Act lets people petition to have certain criminal charges expunged from their records. The attorneys at Kurtz & Blum, PLLC, can help you file a petition to have records expunged under the Second Chance Act. To learn more, call us or contact us online.

What Does the Second Chance Act Change and Does Your Charge Qualify for Relief Under the Act?

The Second Chance Act aims to help people get a clean slate and escape the adverse effects of having a criminal charge on their record. The new law also expands opportunities for people to petition the court for expungement of other charges.

The law will eventually provide for automatic expungement of charges resulting in a not guilty verdict or dismissal.  This part of the new legislation does not take effect until December 2021, however.

The three other major changes in the new expunction statutes are discussed below.

 1) Juvenile Convictions in Adult Court of People Who Were Under 18 When the Offense Occurred

In December 2019, North Carolina became the very last state in the nation to “Raise the Age” of adult criminal charges to 18 years old.  As a result, there are general fairness issues that arise for those juveniles who were held to answer in adult court as a 16 or 17-year-old prior to Raise the Age.

  • If you had a criminal case in adult court that began before you were 18, you should contact our office.
  • Particularly, the Second Chance Act opens new doors to expunge records of those charges that if they were to occur today, would be held in the juvenile court instead of adult court.
  • Those who will benefit from the changes in this aspect of the new law will include anyone who:
    • Was convicted of a misdemeanor or Class H or I felony in adult court prior to December 1, 2019,
    • For an offense committed when the person was 16 or 17 years old,
    • That was not a motor vehicle offense (N.C. General Statutes, Chapter 20), and,
    • That did not require the person to register as a sex offender.
  • A few points to keep in mind regarding this area of the new law:
    • It does not matter how old you were at the time of your conviction in adult court; the eligibility is based on the age on the date when the case was charged.
    • You must have already completed your entire sentence, including any restitution obligations that stemmed from the conviction.
    • Offenses that contain an “assault” as an essential element are not barred as they are in most other areas of North Carolina expunction law.
    • Offenses that are “A1” misdemeanors are not barred as they usually are.
    • Class “H” and Class “I” felonies are the two least serious classes of felonies in North Carolina.  They include most—but not all—simple drug and theft felonies.  Some examples include Obtaining Property by False Pretenses, Felony Possession of controlled substances, and most felony larceny crimes.
    • Expunctions under this section do not require affidavits of character or community service hours.
    • There is no limit to the number of convictions that can be expunged.
    • It does not matter whether you have been convicted of other charges since the time of the eligible convictions.
    • These petitions require a $175 filing fee to the Clerk of Court.

 2) Expunging Dismissals and Acquittals (“Not Guilty” verdicts)

North Carolina already had expunctions in place to remove charges that had been dismissed in court.  A case could be dismissed by the prosecutor, or in some instances, by the court itself.

Additionally, a defendant may have gone to trial – whether in front of a judge in District Court, or a jury in Superior Court – and won.  In this case, the person was found not guilty, but it would not stop the charge from being visible on a background check.  Under the current law (as of September 2020), other convictions can prevent the expungement of dismissals and acquittals.

As of December 1, 2020, that will no longer be the case:

  • Having a prior misdemeanor or felony conviction no longer stops you from filing to remove dismissals and acquittals from your background.
  • It does not matter what type of convictions you may otherwise have on your record.
  • There is no limit to the number of dismissals or acquittals you can have removed by expunction if they are otherwise eligible.
  • There is no waiting time to file for removal of these dismissals and acquittals.
  • Sometimes a judge does not have to grant the petition if there were other charges in the same case that led to a conviction. A qualified attorney can be of valuable assistance in this area.
  • Cases that were dismissed by successful completion of a deferral of prosecution or a diversion – such as a first-offenders program – will have a $175 filing fee assessed by the Clerk of Court.

3) Expunging Convictions

This part of the Second Chance Act goes into effect December 1, 2020.  Now is the time to review your expungement eligibility and be ready to file as soon as the forms are printed.

Previously, many paths to expunction in North Carolina required the conviction being expunged to be the sole conviction the applicant ever had.  If someone had two separate misdemeanors from two different times which would each have been eligible for expungement on their own, the two convictions “blocked” each other from being expunged because neither of them was the only conviction.

The Second Chance Act includes a path to expunging multiple non-violent misdemeanor convictions.  Unfortunately, it does not include a path to expunging multiple felony convictions.

There are no changes in the new law expanding the types of offenses that are eligible.  For felonies, only class H and class I felonies not otherwise on the list of excepted offenses are eligible.  For misdemeanors, the conviction must not be a class A1, a DWI, or contain “assault” as an essential element.  There are also a few specific offenses listed which are still not available for expunction.  For example, felony Breaking and Entering charges cannot be expunged, but misdemeanors may be.

Here are the key points for expunging convictions under this new legislation:

  • A person who has been convicted of one non-violent misdemeanor may file for expungement five years after the sentence is completed.
    • This is the route for expunction of a person’s one and only misdemeanor conviction.
  • A person convicted of multiple non-violent misdemeanors may file for expungement seven years after completion of the sentence.
    • This 7-year period must be free of any convictions other than traffic charges.
    • The applicant must not have any violent felony or misdemeanor convictions which are not eligible for expunction.
  • A person convicted of one non-violent felony can file for expungement 10 years after the completed sentence.
    • This 10-year period must be free of any convictions other than traffic charges.
    • The applicant must not have any violent felony or misdemeanor convictions which are not eligible for expunction.
  • In all cases, there must have been no new convictions – other than traffic charges – since the conviction being expunged.
  • A prior expunction granted under this same section is a bar to filing for a new expunction under the same section.
  • For all of the above scenarios, the person applying must show through affidavits that they are a person of good moral character.
  • For all of the above, the applicant must not have any pending criminal charges.
  • The Court can deny a petition under these sections and will make findings in support of the reason for denial.

Contact Our Raleigh Criminal Defense Lawyers Today

Are you interested in filing a petition to have convictions, dismissals, or acquittals expunged from your record? We want to help you get a second chance. Schedule a consultation today with a knowledgeable expungement lawyer from Kurtz & Blum, PLLC.