I have been working on a theory of everything . . . for expunctions. It’s a small corner of the criminal justice universe, but a critical one for people with past convictions. The subject can be maddeningly complex, at times a seemingly impenetrable black hole. I have been trying to master the mysteries of our expunction statutes in updating my 2012 Guide to Relief from a Criminal Conviction (which you can find here, but beware of subsequent changes in the law).
Without further physics puns, here’s one of the questions I’ve looked at: Can a person expunge a misdemeanor conviction under G.S. 15A-145.5 for driving while impaired (DWI)? As the statute is currently worded, the answer is yes.
Enacted in 2012, G.S. 15A-145.5 allows for the expunction of older convictions for “nonviolent” misdemeanors and felonies. The meaning of a “nonviolent” offense is determined by what it is not. G.S. 15A-145.5(a) defines an offense as “nonviolent” if it is not a Class A through G felony, a Class A1 misdemeanor, or one of a number of offenses specified in the statute, such as an offense requiring sex offender registration. Consequently, Class H and I felonies and Class 1 through 3 misdemeanors can be expunged as long as they are not among the offenses specifically excluded from relief. See generally Kyprianides v. Martin, ___ N.C. App. ___, 763 S.E.2d 17 (2014) (unpublished) (finding that because conviction for misdemeanor cruelty to animals was not Class A1 misdemeanor and did not fall into excluded categories, it could be expunged under G.S. 15A-145.5).
A misdemeanor DWI conviction is not on the list of excluded offenses. The determinative question then is whether a DWI is a Class 1 misdemeanor or lower. Unlike most misdemeanors, a DWI does not have a specific classification, but in other contexts the North Carolina courts have treated it as a Class 1 misdemeanor. See State v. Armstrong, 203 N.C. App. 399 (2010); State v. Gregory, 154 N.C. App. 718 (2002). Under these decisions, a DWI would be eligible for expunction under G.S. 15A-145.5 if the petitioner meets the other statutory conditions. (Note that Gregory, on which Armstrong relies, was decided before cases holding that an offense’s maximum sentence is determined by the maximum sentence that the particular defendant could receive, not the maximum for the offense generally. See Blakely v. Washington, 542 U.S. 296 (2004). A DWI punished at Levels Three, Four, or Five carries a maximum sentence from sixty days to six months and might be considered a Class 2 misdemeanor. See G.S.14-3(a) (offense without specific classification is considered Class 2 misdemeanor if maximum punishment is more than thirty days and not more than six months).)
Only convictions that are at least fifteen years old may be expunged under G.S. 15A-145.5, a far longer waiting period than for other expunctions under North Carolina law. The length of this waiting period limits the effect of an expunction on a later DWI prosecution. A fifteen-year-old DWI conviction cannot be used as the basis for a felony prosecution of habitual DWI or as a grossly aggravating factor in a misdemeanor DWI prosecution because the applicable statutes set a shorter “look-back” period for prior convictions. See G.S. 20-138.5 (for habitual DWI, look-back period is ten years); G.S. 20-179(c)(1) (for grossly aggravating factor, look-back period is seven years). An expunction would limit use of a prior DWI conviction as a regular aggravating factor, which affects whether a person receives a Level Three, Four, or Five punishment for a misdemeanor. See G.S. 20-179(d)(5) (for regular aggravating factor, prior DWI conviction may be more than seven years old).
G.S. 15A-145.5 also differs from most other expunction statutes in that it appears to give the court some discretion. Most expunction statutes provide that the court “shall” or “must” grant an expunction petition if the court finds that all of the statutory requirements have been met. G.S. 15A-145.5(c) states that the court “may” grant an expunction if the statutory requirements are satisfied. The statute does not specify the possible grounds for denial beyond the statutory requirements, but an order denying a petition must include a finding “as to the reason for the denial.”
A pending House bill, H 273, would revise G.S. 15A-145.5, among other statutes, to disallow expunctions of DWI convictions regardless of their age. The bill, which would apply to petitions filed or pending on or after July 1, 2015, has passed the House and is before the Senate. Two bills introduced in the Senate, S 362 and S 626, would shorten the waiting period to five years for expunction of a misdemeanor under G.S. 15A-145.5. The Senate bills would not change the current treatment of DWI convictions and thus would have the effect of allowing expunctions of DWI convictions before the end of the look-back periods discussed above. These bills did not pass the Senate before the crossover deadline but might be taken into account when the House bill is considered.
Another issue concerns the potential treatment of a DWI sentenced at Aggravated Level One, which carries a sentence of up to three years. See G.S. 20-179(f3). Although the maximum sentence is beyond the typical outer limit for misdemeanors (two years), current law may treat the offense as a Class 1 misdemeanor. The pending bills do not differentiate among the different DWI levels.
In future posts I will address other common expunction questions as well as any changes enacted by the General Assembly.