G.S. 90-96 is one of the densest, most used, and most misunderstood statutes on the books. Let’s try to unpack it a little bit.
There are two distinct subsections under which cases may fall — subsections (a) and (a1) — and the two subsections are different in scope and in effect. We’ll start with subsection (a). This is the descendant of the original version of G.S. 90-96. (The statute was enacted in 1971, and at that time, applied only to first convictions for possession of schedule III through VI substances — the inclusion of paraphernalia, schedule II substances, and felony cocaine possession all came later.) Subsection (a) applies to folks with no prior drug or paraphernalia convictions who plead guilty to or are found guilty of (1) misdemeanor possession of Schedule II through VI drugs, (2) possession of drug paraphernalia, or (3) felony possession of less than one gram of cocaine. There are a couple of things to note here. First, it is up to the court whether to allow a defendant the benefit of the statute: the court “may” do so, even if the state thinks that it shouldn’t (though the consent of the defendant is necessary), but it isn’t required to do so, even if the state and/or the defendant think that it should. Second, G.S. 90-96 isn’t limited to guilty plea cases: the court “may” allow a defendant the benefit of the statute whether the defendant pled guilty or was convicted after a trial. (Whether a judge is likely to allow a defendant who goes to trial the benefit of the statute is a separate question, of course.) Third, it appears that at least some judges, in at least some cases, are allowing defendants the benefit of the statute in cases outside the statute’s scope. See, e.g., State v. Hasty, 133 N.C. App. 563 (1999) (involving a defendant who was on probation, purportedly under subsection (a), for PWISD cocaine).
If the court decides to proceed under subsection (a), the disposition of the case is relatively straightforward: there is no immediate adjudication of guilt or entry of judgment. Instead, the judge places the defendant on probation, for whatever time period the court sees fit. The probation may, but need not, include drug education as a condition. Historically, there hasn’t been an AOC form for this, and judges have either tried to modify judgment forms or have created their own forms. However, I understand that the AOC will shortly be releasing a new form to be used for this type of order.
If the defendant violates his probation, the court enters an adjudication of guilt and sentences the defendant under Structured Sentencing. If the defendant successfully completes his probation, the court dismisses the charges and the defendant is left without a conviction. Furthermore, as detailed in subsection (b) of the statute, if the defendant was “not over 21 years of age” at the time of the offense, he may apply for an expunction of the charges. This expunction provision is much broader than that allowed under G.S. 15A-145, which applies only to misdemeanors and only if the defendant was under 18 years of age at the time of conviction.
The other leading subsection of G.S. 90-96 is subsection (a1), which was added in 1981, and which is confusingly drafted. The best way to try to understand it is to compare it to subsection (a). Subsection (a1) is considerably broader than subsection (a). It applies to “any offense included in G.S. 90-95(a)(3),” meaning all simple possession offenses, regardless of drug type or quantity, and to drug paraphernalia offenses. Furthermore, although is is limited to “first conviction[s],” it ignores prior offenses that are more than seven years old for purposes of determining whether a defendant is a first offender, again unlike subsection (a).
The confusing part of subsection (a1) is that it doesn’t completely spell out how qualifying cases are to be resolved. It says that the judge “may” place the defendant on probation — apparently, with or without the consent of the defendant — which must be for at least a year, and which must, absent exceptional circumstances, include drug education. (Note that the latter two requirements are absent from subsection (a), so while subsection (a1) is broader, it is also a bit tougher.) This appears to be probation pursuant to an entry of judgment, unlike the probation available under subsection (a). Subsection (a1) is missing the proviso, “without entering a judgment of guilt,” that is included in subsection (a), and subsection (a1) contains no procedure for entering a subsequent judgment after a violation of probation — it simply provides that probation shall be revoked, suggesting that the original imposition of probation is the judgment.
Furthermore, the statute is not explicit about what happens if a defendant sentenced under subsection (a1) successfully completes probation. Unlike subsection (a), it does not mandate that the court “shall . . . dismiss the proceedings.” And subsection (b), which contains the expunction provisions of the statute, refers only to proceedings dismissed “under subsection (a),” not to cases that fall within (a1). Yet it appears that the General Assembly intended that at least some defendants sentenced under subsection (a1) would be somehow eligible for expunctions — if not, why would subsection (a1) say that defendants who fail to complete their drug education classes be “den[ied] application for expunction”?
The bottom line is that subsection (a) is clear, while subsection (a1) is broader, but not as clear. I’d like to know whether, and how, subsection (a1) is being used in practice — are defendants being put on probation prior to judgment a la subsection (a), or are they being put on probation pursuant to judgment? Are they receiving expunctions? Subsection (a1) may merit clarification by the General Assembly so that defendants who fall within it are treated the same way from district to district.
Since this post is already too long, I’m not going to unpack subsection (e), but it’s worth reading. Essentially, it provides for after-the-fact expunctions for folks who would have been eligible under subsection (a). There are a couple of ambiguities in the statute, including whether the court “may” or “shall” grant an expunction to eligible offenders, and whether there’s an age limit for eligibility. For now, suffice it to say that In re Expungement for Spencer, 140 N.C. App. 776 (2000) answers some of these questions and is the leading case on subsection (e).
Hey Jeff – thanks for the blog on 90-96. My continuing problem with the application is: client is over 21, court enters 90-96, client complies with all requirements. Court then dismisses the charge. My understanding is that this dismissal by court is NOT eligible for expunction by statute based on the client’s age.
Do you agree?
Chris
I was granted an expunction even though I am over 18. I also did not possess cocaine but marijuana, but it was my first offense.
Generally, yes, so long as the client was over 21 at the time of the offense. The statute’s clear about that as to proceedings under subsection (a), which, as far as I can tell, are most proceedings under G.S. 90-96. I suppose it isn’t totally clear as to proceedings under subsection (a1), since subsection (a1) is so unclear generally, but I see the Spencer case mentioned in the last paragraph of the post is a clear indication of how our appellate courts would view someone over 21 who attempted to obtain an expunction under any subsection of G.S. 90-96.
Jeff– Heres my confusion with 90-96, i was 21 and charged and convicted of a felony under 90-96 and my understanding was that i would not be a felon when i completed my sentence of probation, well im 26 and finished probation about 6 months ago, im listed on the NC website as a convicted felon, so whats the deal with 90-96 , i would like to vote or own a gun one day , any info would be helpful if you can
Thanks
if a defendant is on probation for a felony 90-96 and possesses a firearm during probation can he be charged for being a felon in possession.
j gentry: I don’t believe there’s a case precisely on point, but State v. Hasty, 133 N.C. App. 563 (1999), State v. Watts, 72 N.C. App. 661 (1985), and Friend v. State, 169 N.C. App. 99 (2005), would be the cases to cite in support of the argument that the drug felony is a conviction.
if the defendant files a motion to dismiss based on that he is not a convicted felon under law and that there has been no final judgment what should the judge in this case do in your opinion. grant the motion or deny.
Having had my son involved in a NC case regarding consumption of alcohol, I have thoroughly read the statutes regarding expunction. I have reached the following conclusion. Please correct or add anything you seem relevant.
In re Expungement for Spencer, 140 N.C. App. 776 (2000) seems to be the case people are referencing to indicate anyone over 21 cannot have anything expunged.
The fact of the matter is, according to N.C.G.S., ANYONE, that is found not guilty or their case is outright dismissed, is eligible for expunction, regardless of the crime.
The alternative is people who have been “found guilty or entered a plea of guilty”. G.S. 90-96 permits dismissal (after a finding or plea of guilt) in exchange for some conditions. Anyone over 21 at the time of the crime, who receives a dismissal based on
(a). a finding or plea of guilt
(b). a deferred prosecution agreement under 90-96
(c). is not eligible for expunction under current statutes.
The crucial element for all of this being the entry into a 90-96 agreement. I asked the DA in my son’s situation for an informal agreement in which my son performed certain verified voluntary tasks prior to the court hearing. He then agreed to outright dismissal of the charge. This made my son eligible for expunction even though he was over 21.
It is unambiguous, under N.C.G.S., that anyone’s charges resulting in outright dismissal or a finding of not guilty is eligible once in a lifetime, regardless of age, for expungement of such a case.
Is it similar to 15A-146, where multiple charges at the same time can be dismissed?
I had two charges at the same time, misdemeanor possession and paraphernalia, both dismissed. I was 22. would I use 15-156 or 90-96e?
I’m sorry…15-146, not 15-156
I am a DCC employee. My question is if you have a 2 year old deferred case about to expire that was placed on 5-09 can you violate under the new law of 12-1-09 or do you still have to follow the old guidelines for supervised deferred cases where the da returns them to court for non-compliance. under the new law we can violate as we do regular probation but not sure if i can do this on an old case. div of comm corrections policy manual does not reference this and from my interpretation of the general statue it does not appear i can. hoping for better interpretation.
What can be expected for a violation of 90-96? I was on 90-96 and recieved another simple possession of less than 1/2 oz of marijuana. Is there any real possibility of jail time? Thanks
I have a pending felony charge for manufacturing marijuana. My attorney seems to think that I don’t qualify for the Drug Deferrment Program because I completed a Pre-Trial Intervention for misdemeanor possession of marijuana in SC 3 years ago.
Also, did i read correctly that it is up to the judge and not the DA who decides who gets placed into this program?
Thanks for any insight
EDIT—-The PTI program for misdemeanor possession was in SC, which is a different state than I have the pending felony charges.
hello
my husband has never been in trouble besides little things when he was a teen.he is now 45 and he got sencted to 18 to 22 monthes for 1/2 gram of cocain …can you let me know if there going to let them go under the knew law first time offender .i heard dec.1st 2011 please let me know i’m out here trying to make it on my own with no job ,,they cut his ssi off when he got convicted on march 2nd 2011 and he is dong thee drug program now he has 6 weeks to go in that in ruterdord cc in spindale
thanks
mary jane smith
Just received a gs 90-113.22(a) I have a prior marijuana possession charge in california, will this matter? It was when I was 20, I am 23 now and just received the paraphernalia charge. Your article says that the (a) subgroup may be dismissed? Is this at the judge’s discretion? There is no other charge on the ticket, and I was free to drive home. Any insight would be greatly appreciated.
ok im 22 and used a prayer for judgement 3 years ago for a misd. larcney charge… however it was revoked due to failure to pay my fines and i did three days in county jail and was given time served….well two days ago i was charged with felonu posession of heroin is there any way i can use a 90-96 or something similar? im just seeking answers please write back.
I got a felony 1 class H manufacturing with intent of distribution (which i wasnt, it was personal use) and drug par misdomeaner 5 ( for the grow light and stuff, i was growing weed) Now im wondering i dont have a public defender or lawyer, can i out right request a 90-96, im 22 years old and no pryor felonys.. what to do?
Hello,
I am trying to help a friend get her felony charge dismissed (and then hopefully expunged). She was diverted via a 9096 Order, and she received unsupervised probation with no conditions for a term of years. That term has passed and she has met her obligations (no new criminal activity, etc.).
She and I are not residents of North Carolina. What do I need to file to get her charges dismissed?
Thank you.
1st offense paraphernalia charge and they took my fire arm. Would I be able to get it back? If so how would I go about getting it back.
Family member was granted 90-96 – one year probation. Was initially charged with a felony possession as the substance was not discovered until he got to the jail; but was changed to a misdemeanor prior to 90-96 probation. During probation there is a ‘felony violation’ listed on his court records. Can you have a felony probation violation when the original charge is a misdemeanor? This family member has been fired from a job due to this “felony probation violation” showing up on his record. Lawyer says it’s just the way the PO worded it – that is is really only a misdemeanor. Any ideas, suggestions, or help on how to resolve this?
I have read there is caselaw that allows for PWISD MJ to fall under 90-96. Have any lawyers been successful in doing this over the objection of the District Attorney? If so- how did you convince a Judge he/she can do it when the ADA is standing on their head saying no they can’t.
I successfully completed my 90-96 for a cocain possession, can I vote or get a concealed carry permit ?
I have one prior possesion of up to a half oz of marijuana on my record. And i have to go back to court because i recently got caught with cocaine. The charges i go for are a felony possesion cocaine, a misdomenor possesion of drug paraphenilia. And a misdomenor show cause.. I didnt show at first appearance but i turned my self in 5 days after that. Am i looking at jail time. Im gonna be representing my self
I have a question about G.S. 90-96 which I’m going to try to keep as simple as possible. In this case the individual did not successfully complete the 12 month supervised probation that was issued when his case was heard.
I understand this will result in him loosing the opportunity he would have had for deferral and he will be subject to a judgment entered and Structured Sentencing.
The part I do not understand is which violation(s) he will be sentenced for.
During the 90-96 preceding the deal agreed upon was that he enter conditional guilty plea for one misdemeanor possession of paraphernalia. The original charges were significantly more serious (combination of 3 felonies, 2 misdemeanors).
So, when the court enters judgement (due to his lack of complying with probationary terms) will it be for the original 5 charges or for the guilty plea he entered for possession of paraphernalia?
I can provide more information if need but for the purpose of this question, I don’t believe it matters what his probation violations were. It seems there should be a simple answer to which charges the court will be considering when entering judgement.
Ann
This is a good break down however I was trying get help with our case in which I do not think this applies. Our case is a simple possession that was 2007 which is now 9 years old he paid ticket but now saying he didn’t pay it but too old to bench warrant. He paid it we don’t want pay it again so how do we proceed on it. Is there a certain self help documents I can fill out to get it in front of a judge. And is there a statue of limitations for them . Because they were not allowed make it active
can a person with maintaining and dwelling/pwimsd 3.42grams of methanphetamine and two paraphernalia charges be granted this subsection 90-96 reminder never had a drug charge
34.2 grams^^
I successfully completed probation and courts were satisfied. I filed for expungment and was later informed by the clerk of courts that it was expunged but when I was stopped by police for a traffic violation he said i had a charge that showed up when he ran my name. I have no other charges so why is this still showing up when my name is ran by police. Its been nearly two years or even more since I filed for the expungment
Can a 90-96 case be arrested for a probation violation?
Can you purchase a firearm after successfully completing 90-96?
After a dismissal under 90 96 why am I still listed as a felon.