Have you been charged or arrested for a crime that was later dismissed, or you were found not guilty? If so, you should not have to live with that record haunting you for the rest of your life. It can become difficult to obtain a job, a mortgage or even buy a car when you have an arrest record. Fortunately, you may have the option of getting your record cleared, or “expunged”.
What is Expungement?
An expungement (or “expunction”) is a legal process to remove a criminal conviction or criminal charge from a person’s criminal record and to seal or destroy the state’s record of the arrest, charge and/or conviction. Generally, an expunction can provide much needed relief for most consequences of a charge or conviction; for example, you cannot be found guilty of perjury if you deny that the arrest, charge or conviction ever happened in the future. However, there are some cases where an expunged case can be brought up, such as in federal immigration decisions.
Getting your record expunged can be a time-consuming and intimidating process, especially if you are seeking to expunge multiple charges, or even a single charge but have several items on your criminal record. The process includes several steps involving the law enforcement agency that made the arrest, the court system involved in the charge, and the State Bureau of Investigation. While the process does not necessitate that you hire an attorney to help, failure to follow the correct steps can cause significant delays in getting your record cleared. If you have any doubts, questions, or concerns about the process, we strongly recommend you reach out to our experienced attorneys to help you complete the process.
Who is Eligible for Expungement?
In North Carolina, expungement is governed by several statutes that cover who may be eligible for expungement of their arrest, charge, or conviction. Some allow expungement based on specific types of offenses, such as drug possession or some prostitution offenses. Other statutes allow expunction for broad ranges of crimes for certain groups of people, such as people under the age of 18. There are also expunction statutes that address how charges ended, such as charges that resulted from identity theft or incorrect DNA records that lead to dismissals or pardon of innocence.
Typically, cases where you are likely not eligible include:
- The case is still open
- You are facing charges for a federal crime
- You have a pending arrest
- The crime is too severe to be expunged and you have not been exonerated from it.
What Makes You Ineligible for Expungement?
Generally, in North Carolina crimes that can be expunged are “non-violent” misdemeanors and lower level non-violent felonies. For people 18 or older, you cannot get records expunged for:
- Any offense that included assault
- Any offense that required sex offender registration
- Class A1 misdemeanor offenses
- Crimes committed motivated by the victim’s race, color, or religion
- Drug felony offenses that involved heroin, methamphetamines, or possession with intent to sell cocaine
- DWI offenses
- Felony breaking and entering
- High Level Felony Convictions: Class A through G convictions
- Various sex-related and stalking offenses
For people convicted between the ages 16 to 18, there is more leniency for expunction now due to the Second Chance Act. Petitioners can seek to expunge underage records for Class A1 misdemeanors and Class H or I felonies, so long as they did not involve:
- DWI offense
- Registration on a Sex Offender Registry
The Second Chance Act and Expungements
The Second Chance Act, which was signed in North Carolina law on June 25th, 2020 by Governor Roy Cooper, made great strides in enabling North Carolinians to get their records expunged. The main focus of this act was to make expunctions easier to acquire when eligible, or in some cases automatic, but it generally did not change the types of offenses that could be subject to expunction, except for juvenile defendants . The changes to expungement law include:
The act now allows for expungements to be processed automatically for charges that resulted in a not guilty verdict or dismissal without leave, starting in December 2021. Cases dismissed prior to that date will still have to go through the current process of petitioning courts for expungement. The Act does address the method for how the process would be automatic, but it does allow prosecutors to submit expungement requests on their own.
Expungement for Multiple Convictions
Before, only one non-violent, non-DWI misdemeanor conviction could be expunged, only if all the follow criteria were met:
- At least five years have passed since the date of conviction
- The person has not been convicted of a felony
- The person is otherwise eligible.
The Second Chance act now allows for more than one non-violent misdemeanor conviction to be expunged after 7 years have passed and other eligibility criteria are met, even if they petitioner has another misdemeanor conviction. You can also file for expunction of one nonviolent felony conviction after 10 years of the date of conviction, or after active sentence, probation or post release has been served (whichever occurs later). You cannot have any other convictions during the 10-year waiting period and can have no outstanding restitution or civil judgements.
Expanding Expungement for Juveniles
Offenses committed by defendants who were under 18 but older than 16 prior to Dec 1, 2020 can be expunged, so long as they were a misdemeanor or Class H or I felony. This still excludes offenses that require sex offender registration as well as DWI offenses.
Expungement Frequently Asked Questions
The expunction process can be confusing and time consuming, especially if you make mistakes along the way or try to petition for an ineligible conviction. We do recommend hiring one of our experienced attorneys to help you with the process, but it may help to read the following frequently asked questions about expungement.
No, they mean the same thing and are used interchangeably in North Carolina’s expungement statutes.
Typically, you must find out if your charges or conviction fall under an existing expunction statute. You should also assess your prior convictions by doing a personal background check. The best way to do this is to hire an experienced attorney, especially if you are completely unfamiliar or uncomfortable with the legal process.
You will have to find the necessary forms online related to your particular offense and circumstances. Some petitions will require additional documents, which should be listed in the form’s instruction sheet. It is important that all information you include on the form is clear and accurate. You can also have a lawyer help you with this.
You should file your petition with the clerk of the court in the county you were charged or convicted. It would be best to contact the specific clerk to find out how you can turn in your petition.
It depends on the expungement statute. Generally, all elements are covered in the form’s instruction sheet for each petition. There may be some local differences in procedure, such as differences in scheduling a hearing or obtaining a judge’s signature.
The fee is generally $175 to file an expungement. Some expungement statutes are free, such as filing for charges that were dismissed or ended in a “not guilty” verdict, unless dismissal was based on completion of a diversion program or deferred prosecution agreement. If you cannot afford the fee, you can fill out an additional form to file without a fee.
For some cases, the judge will hold a hearing to determine whether you have “good character” and are worthy of expungement. Typically, this applies to expungements for convictions, not dismissed charges. Local courts may have different procedures for hearings.
They may take several months, depending on the time it takes to check your criminal record and schedule a hearing if needed.
In some cases, you can appeal the court’s decision. At this stage, if you have not already asked for the help of an attorney you should contact one as soon as possible. Appeals typically have a short deadline to submit and basis to challenge the decision, which a skilled lawyer can help determine.
It can take some time to have criminal record information removed from North Carolina court system sources, so it is best to wait a few weeks. If your record is still there on the court system, you can contact the clerk of the court’s office from where your expungement was granted.
Information available through private sources, such as websites that compile criminal record information, will have to be contacted directly with the information of your expungement. Expungement does not automatically remove information about the charge or conviction from all private sources.
The clerk will typically provide you with the judge’s signed expunction order. You cannot get the order later, because the involved government entities receive notice to destroy all files related to the criminal process, including the expunction order itself. If your expunction was filed on or after December 1st, 2017, you can use a form to request a certificate verifying prior expunction.
You can file on your own, but an attorney can help assess your eligibility, make sure you include all the necessary and accurate information and documents, guide you through the process, and represent you in a hearing if required. They can also help you appeal the judge’s decision if your petition was not granted. Court officials involved, such as the judges or clerks, cannot provide you with legal advice about your eligibility. If you represent yourself in court, you will be expected to follow the same procedural rules and evidence requirements as a licensed attorney.
No, you cannot acquire a court-appointed attorney to help with an expungement.