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Conviction holding you back? When it is possible to expunge a prior conviction

Howard Kurtz - 10/13/2016

When can you expunge a criminal conviction and clean your criminal record?

Fairly recently, the North Carolina State Legislature passed some changes to our laws surrounding expunctions. These new laws are actually helpful, and can hopefully bring relief associated with the stigma of a criminal conviction to many people convicted of non-violent, low-level offenses. Why is an expungement such a big deal? Because with an expunction, the proverbial “slate” is literally wiped clean, and the State is required to destroy every record that the offense was committed, from arrest records and police reports, to court paperwork and computer records reflecting the disposition of the case. The goal is for you to be able to legally deny the existence of any charge/conviction that was expunged, and generally make it seem like the conduct never happened in the first place. Think of it as a legal fiction. Once granted you can legally say that you were never charged with a crime!

But first, it is important to note one big caveat to the changes in the expungement laws: if you have been convicted of Driving While Impaired (DWI), there is NO relief that will be granted to you in the form of an expungement, because the statutes specifically state that Driving While Impaired convictions cannot be expunged. Sigh. Sorry, folks.

North Carolina actually has twelve statutes that authorize expungements in certain cases. Some statutes require a filing fee of $175 and some do not. The most commonly utilized categories under which you might qualify for relief are:

  1. A charge that was dismissed or disposed “not guilty”
  2. A first-time conviction of certain offenses committed before age 18/21
  3. A first-time conviction of a non-violent misdemeanor or felony offense occurring more than 15 years ago

Many people may not know that you can typically only receive ONE expunction (with a few exceptions provided under the law), so it is important to make it count, and to get “the most bang for your buck.” Even though only one expunction may be done, an attorney reviewing your criminal record might be able to get multiple charges expunged, particularly if the offenses occurred within a one-year period of each other. For example, Susie Q was charged with misdemeanor possession of drug paraphernalia and misdemeanor possession of marijuana, and her case was dismissed after she successfully completed a drug diversion program on January 1, 2016. A couple of months later, Susie Q picked up a new charge for misdemeanor larceny. Her lawyer was able to get that charge dismissed on October 31, 2016 because Susie worked hard and completed community service hours. Both of those offenses, dismissed within the same year, would be eligible for expunction. If Susie Q had picked up a new charge and it was dismissed after December 31, 2016, Susie Q would only be able to get one of those dismissed charges expunged. Under this scenario, because Susie Q had her drug charges dismissed via drug diversion, she will be required to pay a filing fee of $175. If the dismissal had been filed outright, and not through any formalized program, Susie Q would not have had to pay the filing fee for the expunction.

Now, if Susie Q was under the age of 18 at the time she allegedly committed those offenses, and she was actually convicted of the Possession of Drug Paraphernalia (or another drug offense—even a low-level felony!), she might qualify to have the case expunged under NCGS §15A-145.2(c). This expunction statute requires a person to wait 24 months after the date of conviction or release from probation, whichever is later, before filing for the expunction. Susie Q would have to be under age 18 at the time of the offense, and as long as she had no other felony conviction, misdemeanor drug/alcohol convictions, and not have previously received an expungement under the same statute, Susie Q could get the expungement she desperately needs in order to get into college. In the limited circumstance of underage possession of alcohol convictions, such an expunction can be had if the date of offense was before their 21st birthday.

A person who has a low-level non-violent felony conviction that was committed before their 18th birthday could also get their conviction expunged, if they meet similar criteria, with a few more requirements added in to the mix. People must wait 4 years from the date of conviction before applying, and the defendant must have completed their sentence (i.e. finished probation, etc.), have no outstanding warrants or pending criminal cases, AND must complete 100 hours of community service, and have obtained a high school diploma or GED. Petitioners under this section also have to submit character Affidavits confirming that the person has had “good character” since the conviction.

Most recently, the legislature provided for people who have a non-violent misdemeanor or felony conviction (or convictions, if the convictions occurred in the same session of court) to receive extraordinary relief under the expunction laws in North Carolina. This particular expunction statute can provide some much-needed relief for some people who may have gotten a felony drug possession charge when they were younger, and have subsequently turned their life around. They may have struggled to find jobs because of the felony conviction, and being able to remove this from their record may make a huge difference for their job prospects. In order to qualify for this expungement, a person must wait 15 years prior to petitioning for the expungement; and have no other misdemeanor or felony convictions, other than traffic violations. The petitioner must have completed their sentence from the conviction and have no prior expunctions or pending charges. They have to submit two affidavits showing good character from individuals with knowledge of their reputation in their community, and pay a $175 filing fee.

Lastly, a person whose identity may have been stolen or who was mistakenly arrested can qualify for an expunction under NCGS § 15A-147. There are no limits to the number of expungements of criminal charges one could file for under this statute, so if you are the victim of ID theft or mistaken identity, any criminal charge that was dismissed, disposed of as “not guilty” or if the conviction has been set aside qualifies for this expunction.

This article does not cover all expunction statutes, and each individual’s situation is different. You could contact an attorney at Kurtz & Blum, PLLC for a free consultation to determine if you might qualify for an expunction under North Carolina laws. This area of the law has changed a lot in recent years, and even if you were previously not eligible for an expunction, you may now qualify to seek relief. Contact us today at 919-832-7700 to see if we can help clean up your criminal record!



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