As in recent sessions, the General Assembly remained active in revising North Carolina’s expunction laws. The biggest changes came in S.L. 2021-118 (S 301), as amended by section 2.3 of S.L. 2021-167 (H 761). The legislation expanded the opportunity for a person to expunge older convictions of “nonviolent” felonies but with complex eligibility conditions. This post is a first stab at analyzing that legislation. At the end of the post are short summaries of other 2021 legislation revising North Carolina’s expunction laws.
Definition of “Nonviolent” Offenses
G.S. 15A-145.5 has authorized the expunction of older convictions of “nonviolent” offenses, defined as offenses that do not fall into one of several categories. The General Assembly made a seemingly simple change to these definitions, but the change requires some explanation.
Under G.S. 15A-145.5(a), a “nonviolent” offense does not include a Class A through G felony or a Class A1 misdemeanor. A “nonviolent” offense also does not include one of several listed offenses, a list that has included offenses involving impaired driving as defined in G.S. 20-4.01(24a). The inclusion of impaired driving in the list of excluded offenses created an unexpected barrier in 2020, when the General Assembly expanded the relief available under G.S. 15A-145.5 by authorizing expunctions of more than one “nonviolent” misdemeanor conviction from different sessions of court. Previously, a person could only expunge multiple misdemeanor convictions from the same session of court. In making this change, the General Assembly added a provision denying expunctions of misdemeanor convictions from different sessions of court if the person had any other convictions that were not “nonviolent.” The 2020 General Assembly also made such a conviction a disqualification for the existing opportunity to expunge a single “nonviolent” felony conviction. As a result, a person with an impaired driving conviction could not expunge other convictions because the impaired driving conviction was not nonviolent.
Effective for petitions filed on or after December 1, 2021, section 1 of S.L. 2021-118 removes this barrier by repealing the part of G.S. 15A-145.5(a) providing that impaired driving is not a “nonviolent” offense. In place of the repealed provision, the act added new subsection (a1), which states simply that an impaired driving offense is not eligible for an expunction. As a result, an impaired driving conviction still cannot be expunged; but, since the statute no longer provides that it is not a “nonviolent” offense, it no longer bars expunction of other convictions on that ground.
This revision also reinforces that an impaired driving conviction comes within the “traffic offense” exception to prior convictions that bar a person from obtaining an expunction of other convictions. G.S. 15A-145.5(c2)(6) provides that a person may obtain an expunction of a single conviction of a nonviolent misdemeanor offense (defined to include multiple convictions from the same session of court) as long as the person has no convictions for a felony or misdemeanor offense other than for a traffic offense. I have written elsewhere that a misdemeanor impaired driving offense constitutes a traffic offense and does not bar expunctions of other convictions under statutes with an exception for prior traffic offenses. This approach aligns the different types of expunctions under G.S. 15A-145.5—expunction of a single conviction of a nonviolent misdemeanor, expunction of more than one conviction of a nonviolent misdemeanor, and expunction of up to three convictions of a nonviolent felony (discussed further below). In all three instances, a prior misdemeanor impaired driving conviction should not disqualify the person from obtaining relief.
Section 1 of S.L. 2021-118 also eliminates the disqualification for a violation of G.S. 14-56, breaking and entering a motor vehicle. G.S. 15A-145.5(a)(7a) no longer provides that the offense is not a “nonviolent” offense. The clause continues to provide that a violation of G.S. 14-54, breaking and entering a building, is not a “nonviolent” offense.
Eligibility to Expunge Up to Three Nonviolent Felony Convictions
More complicated are the new requirements for expunging multiple felony convictions. G.S. 15A-145.5 has allowed expunction of a conviction of a single nonviolent felony (defined to include multiple convictions from the same session of court). Effective for petitions filed on or after December 1, 2021, section 2 of S.L. 2021-118 revises G.S. 15A-145.5 to allow expunction of up to three convictions of nonviolent felonies from different sessions of court. The basic criteria for expunging felony convictions are as follows.
Waiting period. As under current law, a person must wait ten years to expunge a single nonviolent felony conviction. The ten years begins on the later of the date of conviction or the date of completion of an active sentence, probation, or post-release supervision. G.S. 15A-145.5(c)(2)a.
Under the new provisions, a person must wait twenty years to expunge two or three convictions for nonviolent felonies. The waiting time begins on the later of the date of the most recent conviction or the date of completion of an active sentence, probation, or post-release supervision for the convictions. G.S. 15A-145.5(c)(2)b.
Prior convictions. To expunge a single nonviolent felony conviction, the person may not have a misdemeanor conviction other than for a traffic offense during the five years before filing of the petition. G.S. 15A-145.5(c3)(4). This provision is new. Previously, a person could not have a misdemeanor conviction, other than for a traffic offense, during the entire ten-year waiting period. Other convictions are also disqualifiers. The person may not have any convictions, during or after the waiting period, for a misdemeanor that is not “nonviolent” as defined in G.S. 15A-145.5(a) or for any other felony. G.S. 15A-145.5(c3)(6).
Likewise, to expunge two or three nonviolent felony convictions, the person must not have a misdemeanor conviction other than for a traffic offense during the five years before the petition. G.S. 15A-145.5(c3)(4a). The person may not have any convictions at any time for a misdemeanor that is not “nonviolent” or for any other felonies. G.S. 15A-145.5(c3)(6).
24-month window for convictions. The new provisions for expunging two or three felony convictions require that the felony offenses have been committed within a 24-month period. G.S. 15A-145.5(c3)(4b). This limitation appears to have two effects for felonies that occurred more than 24 months apart. First, a person cannot expunge the convictions under the new provisions. Second, the person cannot expunge one of the felonies because the other felony is a disqualifier.
30-day window for filing in multiple counties. New G.S. 15A-145.5(c4) recognizes that a person has the right to petition to expunge convictions from different counties in North Carolina. It directs that a petition be filed in each county in which a conviction occurred. See also G.S. 15A-145.5(c1)(6) (requiring that petition include information about filings in other counties). It further states that all petitions “shall be filed within a 30-day period.” This provision may establish a mandatory time limit on petitions to expunge convictions in different counties, denying relief to an otherwise eligible person for a petition filed outside the 30-day window.
The time limit may not be as absolute as it seems. It appears to apply only to expunctions of the same level of offense—that is, misdemeanors or felonies—because of the interplay of new G.S. 15A-145.5(c4) and revised G.S. 15A-145.5(c). Under the latter subsection, a person who received an expunction of one or more misdemeanors is not eligible to expunge additional misdemeanors under G.S. 15A-145.5 except when the person petitions for expunctions in multiple counties within 30 days as provided in G.S. 15A-145.5(c4) (or the person is eligible for an expunction under new G.S. 15A-145.5(c5), discussed further below). G.S. 15A-145.5(c) contains the same language for felony expunctions. As a result, a person may be able to obtain an expunction of a misdemeanor after obtaining an expunction of a felony in a different county, and vice versa, without having petitioned for the expunctions within thirty days.
If a petitioner inadvertently fails to petition to expunge eligible convictions in other counties, a court may have the authority to extend the deadline. Several expunction statutes set deadlines for prosecutors to object, including G.S. 15A-145.5. See “Objections” in Rubin, Procedure to Obtain an Expunction, Relief from a Criminal Conviction (2020 ed.), Without a safety valve, the various deadlines could bar both petitions to expunge and objections to petitions. Cf. In re D.S., 364 N.C. 184, 193–94 (2010) (holding that noncompliance with 15-day deadline, plus 15-day extension, for filing of juvenile delinquency petition following submission of complaint did not deprive court of jurisdiction; court relies on decisions holding that a statute’s use of term “shall” for time in which to act may be directory, not mandatory).
Because of the risk of denial of relief, petitioners and their counsel should carefully investigate the record to identify all convictions and, if from different counties, file all petitions within the 30-day window.
Prior expunctions. In 2020, the General Assembly provided that a person who received an expunction under G.S. 15A-145.5 could not receive additional expunctions under that statute for offenses committed after the order for expunction. This provision meant that a person could receive additional expunctions under G.S. 15A-145.5 for offenses committed before the expunction. That language still appears in G.S. 15A-145.5(c), but it is subject to new language added by the 2021 legislation. The new provisions state that a person who received an expunction under G.S. 15A-145.5 is not eligible for additional expunctions under that statute for the same level of offense (that is, misdemeanor or felony) except as allowed under G.S. 15A-145.5(c4), which concerns the 30-day window for filing in multiple counties discussed above, or as allowed under G.S. 15A-145.5(c5), discussed further below. Construed together, the provisions on prior expunctions appear to have the following impact:
- A person who receives an expunction of a misdemeanor under G.S. 15A-145.5 may not obtain an expunction of another misdemeanor under G.S. 15A-145.5 unless the exceptions in subsections (c4) or (c5) apply. The same rule applies to felony expunctions. Under new G.S. 15A-145.5(c1)(7), the petitioner must acknowledge this limitation. If petitioning to expunge a single misdemeanor conviction, the petitioner must acknowledge that an expunction before the end of the longer waiting period for multiple misdemeanor convictions will preclude them from expunging otherwise eligible misdemeanor convictions once the longer waiting period elapses (except as allowed by subsection (c5), below). A similar acknowledgement is required when petitioning to expunge a single felony conviction. The AOC forms for expunging nonviolent misdemeanor convictions and nonviolent felony convictions contain these acknowledgements.
- A person who receives an expunction of a misdemeanor under G.S. 15A-145.5 may later obtain an expunction of a felony under G.S. 15A-145.5 if the felony occurred before the misdemeanor expunction. The same rule applies in reverse: a person who receives an expunction of a felony under G.S. 15A-145.5 may later obtain an expunction of a misdemeanor under G.S. 15A-145.5 if the misdemeanor occurred before the felony expunction. Some of the revised parts of G.S. 15A-145.5 do not specifically require that a subsequent expunction be for an offense that occurred before a prior expunction. See G.S. 15A-145.5(c2) (misdemeanors); G.S. 15A-145.5(c3) (felonies). Another statute, however, imposes that requirement, which appears to be controlling. G.S. 15A-145.5(c) (“A person previously granted an expunction under this section is not eligible for relief under this section for any offense committed after the date of the previous order for expunction.”)
- A person who receives an expunction under any other statute may obtain an expunction under G.S. 15A-145.5.
New subsection (c5) of G.S. 15A-145.5 adds another wrinkle through a legacy clause. It allows people who received an expunction of a single nonviolent felony conviction pursuant to a petition filed before December 1, 2021, when the new provisions became effective, to obtain an expunction of up to two additional felony convictions if the offenses were committed before the previous expunction and were committed within the same 24-month period as the expunged felony. This new subsection also applies to expunctions of nonviolent misdemeanors, allowing people who received an expunction of one or more misdemeanors pursuant to a petition filed before December 1, 2021, to obtain an expunction of additional misdemeanors if the offenses were committed before the previous expunction.
S.L. 2021-47 (S 255): Under G.S. 15A-150, clerks of court are not required to give notice to other agencies of automatic expunctions (once the process gets under way) of dismissals and acquittals under G.S. 15A-146(a4). Effective June 18, 2021, section 15 of this act amends G.S. 15A-150 to clarify that the Administrative of the Courts (AOC) may give such notice.
S.L. 2021-107 (H 312): In 2010, the North Carolina Constitution was amended to bar a person from holding the office of sheriff if convicted of a felony. N.C. Const. art. VII, sec. 2. Effective for elections and appointments of sheriffs on or after October 1, 2021, this act amends 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. The act adds G.S. 17E-20 to require candidates for sheriff to verify they have no expunged felony convictions and G.S. 17E-25 to allow the North Carolina Sheriffs’ Education and Training Standards Commission to obtain from the Administrative Office of the Courts (AOC) records of expunged felony convictions of candidates. The act also amends G.S. 15A-151 to authorize the AOC to disclose expunctions under G.S. Chapter 15A to law enforcement agencies and commissions for employment and certification purposes (was, expunctions under G.S. 15A-145.4, G.S. 15A-145.5, and G.S. 15A-145.6).
S.L. 2021-115 (H 84): Effective for petitions filed on or after December 1, 2021, this act amends 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.” For a sexual battery offense committed on or after December 1, 2003, when the General Assembly created the offense (S.L. 2003-252 (S 912)), and before December 1, 2005, when the General Assembly made sexual battery an “offense requiring registration” (S.L. 2005-130 (H 1209)), a person may be able to obtain an expunction under G.S. 15A-145. See State v. J.C., 372 N.C. 203 (2019) (holding that State did not have statutory right to appeal trial judge’s order interpreting similar statute to allow expunction of conviction of offense that was not “offense requiring registration” when committed).
S.L. 2021-118 (S 301): As part of the legislation discussed in the main part of this post, amended G.S. 15A-151 authorizes the Administrative Office of the Courts (AOC) to disclose to the district attorney and defendant on their joint request records of previous dismissals pursuant to a conditional discharge; and amended G.S. 15A-151.5 requires the AOC to make all records of dismissals pursuant to conditional discharges maintained under G.S. 15A-151 available electronically to all prosecutors. The changes are effective August 26, 2021.
S.L. 2021-180 (S 105): Section 16.4 of this act amends G.S. 15A-145.9, concerning expunctions of offenses by human trafficking victims, to provide that the costs of expunging records may not be taxed against the petitioner. The reason for this change is unclear since no filing fee is due and no costs are assessed in these cases.