Can a North Carolina SB 445 Expunction Clear Your Name?
A bill that would change the way expunctions are granted has passed the North Carolina General Assembly and is on Gov. Roy Cooper’s desk. The North Carolina SB 445 expunction bill reduces the wait time for expunction of a first-time nonviolent misdemeanor or felony conviction from 15 years to five years for a misdemeanor conviction and 10 years for a felony conviction.
The existence of a criminal record can make it difficult for ex-offenders to participate in society. Prospective employers, landlords, colleges and even volunteer programs place a lot of stock in record checks and what they reveal. Expunction is a legal process to remove certain offenses from a person’s criminal record. If you have questions about SB 445 expunction, please call us.
Removal will now be permitted for charges that had been brought and subsequently dismissed or charges in which a finding of not guilty was made. Expunctions can also be used to remove criminal convictions from a person’s record.
According to SB 445 expunction, if a person was charged and there was no conviction, or if a person is a first-time offender of a non-violent crime, then the law will give the individual easier access to get their criminal records expunged.
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North Carolina Restoration of Rights, Pardon, Expungement & Sealing
I. Restoration of Civil/Firearms Rights
A. Civil rights
Civil Rights are lost upon conviction of a felony. N.C. Const. art. VI, § 2(3) (vote); id. § 8 (office); N.C. Gen. Stat. § 9-3 (jury). All rights are automatically restored upon unconditional discharge of sentence or unconditional pardon. N.C. Gen. Stat. § 13-1. The agency releasing the prisoner (or probationer) must file a certificate evidencing unconditional discharge and restoration of the rights of citizenship with the court in the county of conviction (North Carolina state offenses) or the county of residence (for offenses under federal law or the law of another state). § 13-2.
People convicted of a felony may not possess firearms. N.C. Gen. Stat. § 14-415.1(a). Those convicted of antitrust violations, unfair trade practices, or restraints of trade exempted from this prohibition. § 14-415.1(e). Firearms rights may be restored by a pardon. § 14-415.1(d). In addition, individuals who have lived in North Carolina for at least one year, who have a single non-violent felony conviction and no violent misdemeanors, may petition the court in their county of residence twenty years after their civil rights were restored for restoration of firearms rights under North Carolina state law. § 14-415.4.1 Persons with qualifying out-of-state or federal convictions may petition the court in the district where they reside “only if the person’s civil rights, including the right to possess a firearm, have been restored, pursuant to the law of the jurisdiction where the conviction occurred, for a period of at least 20 years.” Id.
C. Collateral consequences
North Carolina has an on-line compilation of collateral consequences that is available at no cost to the public. See Collateral Consequences Assessment Tool (C-CAT), http://ccat.sog.unc.edu/. The C-Cat site, maintained by the School of Government at the University of North Carolina, also contains a wealth of information about relief mechanisms in North Carolina, cataloguing and analyzing state expunction laws, including specialized relief provisions applicable to sex offender registration and firearms, as well as drug and juvenile offenses. See Relief from a Criminal Conviction Guide, http://www.sog.unc.edu/node/2675.
II. Discretionary Restoration Mechanisms
A. Executive pardon
The governor’s power is unlimited, subject only to regulations in the manner of applying. N.C. Const. art. III, § 5(6). The Post Release Supervision and Parole Commission has authority to assist the governor in exercising his pardon power and in his responsibility to perform such services as he requires in connection therewith. N.C. Gen. Stat. § 143B-720(a).
There is a five-year waiting period from the date of release from supervision, which may be reduced if a specific need is shown. Persons convicted under federal law or another state’s laws are not eligible to apply for a gubernatorial pardon. There is a three-year wait to reapply after denial.
According to the website of the Governor’s Clemency Office (Office of Executive Clemency or “OEC”), there are three types of pardon in North Carolina: pardon of forgiveness (“granted with certain conditions,” but useful in seeking employment); pardon of innocence (“granted when an individual has been convicted and the criminal charges are subsequently dismissed”); and unconditional pardon (“granted primarily to restore an individual’s right to own or possess a firearm”). See http://www.doc.state.nc.us/clemency/glossary.htm. A pardon does not expunge or erase a criminal record; however, a person who receives a pardon of innocence may petition the court in which he was convicted for an expunction of records pursuant to N.C. Gen. Stat. § 15A-149.
N.C. Gen. Stat. § 147-21 provides that all applications must be submitted to the governor in writing, and accompanied by a statement of reasons and a copy of the indictment, verdict, and judgment. The OEC processes the requests, oversees and coordinates investigations by the Parole Commission, and prepares reports. All applicants for clemency, with details of their offense, are listed on OEC’s website: http://www.doc.state.nc.us/clemency/pardons.htm. By statute OEC must notify the victim that it is considering a grant of clemency; that the victim has the right to present a written statement that OEC will consider before clemency is granted; and of the decision that is made. N.C. Gen. Stat. § 15A-838. By executive order the DA in the county of conviction also must be notified of, and given the opportunity to comment upon, an application for clemency. For a further description of the process see http://www.cga.ct.gov/2009/rpt/2009-R-0201.htm.
Frequency of grants
Pardons in recent years have been rare – only sixteen pardons have been granted since 2001, all of which were granted for innocence.2 Pardon applications average about 150 annually. Recommendations are submitted by governor’s clemency staff to the governor’s legal counsel. In the past, governors granted pardons fairly regularly, but there have been no “forgiveness” pardons since 2001. Source: Governor’s Office of Executive Clemency.
B. Judicial sealing or expunction
NOTE: Professor John Rubin of the School of Government at the University of North Carolina has compiled a guide to judicial and other relief mechanisms under state law, which contains a wealth of information about state expungement laws. See Relief from a Criminal Conviction: A Digital Guide to Expunctions, Certificates of Relief, and Other Procedures in North Carolina, http://www.sog.unc.edu/node/2675. This indispensable Guide catalogues and analyzes state expunction provisions, including specialized relief provisions applicable to sex offender registration and firearms, as well as drug and juvenile offenses.
Nonviolent first offender felonies and misdemeanors
Minor nonviolent felony convictions and nonviolent misdemeanor convictions are eligible for “expunction” 15 years after completion of sentence. See N.C. Gen. Stat. § 15A-145.5(a), (b). SB-445, enacted in June 2017 and effective December 1, 2017, significantly reduces the waiting period to 5 years for eligible misdemeanors and 10 years for eligible felonies. Class A through G felonies and Class A-1 misdemeanors are not eligible, nor are DWI’s and a number of drug offenses. An applicant must have paid all restitution; have had no other convictions (other than traffic violations) and have no pending charges; and must demonstrate that his or her “character and reputation are good” by filing two character affidavits by nonrelatives. § 15A-145.5(c). A petition must be filed in the court of conviction, and the district attorney must be given an opportunity to object. Id. The court must find that the applicant has had no prior expunctions under this authority or under § 15A-145.1 through 145.4 (deferred adjudication or youthful offender, see infra). Id.
Effect of expunction
If granted, the effect of expunction is that the person is “restored, in the contemplation of the law, to the status he occupied before such arrest or indictment or information.” N.C. Gen. Stat. § 15A-145.5(c). However, a conviction expunged after December 1, 2017, may be treated as a predicate offense for the purpose of calculating “prior record level” in subsequent prosecutions and sentencing. See § 15A‑151.5 (enacted by SB-445 (2017)).
No person as to whom an order has been entered pursuant to subsection (c) of this section shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of that person’s failure to recite or acknowledge the arrest, indictment, information, trial, or conviction. This subsection shall not apply to a sentencing hearing when the person has been convicted of a subsequent criminal offense.
§ 15A-145.5(d). The “non-acknowledgement” provision above does not apply when an individual is seeking certification for law enforcement employment. § 15A-145.5(d1).
After granting expunction, the court will order that the conviction be removed (“expunged”) from the records of the court, law enforcement agencies, and other state and local government agencies. §§ 15A-145.5(e), (f).3 “A private entity that holds itself out as being in the business of compiling and disseminating criminal history record information for compensation shall destroy and shall not disseminate any information” about a record that has been expunged if the entity has received notice of the expunction. § 15A-152(a). In addition, “persons required by State law to obtain a criminal history record check on a prospective employee shall not be deemed to have knowledge of any convictions expunged under this section.” § 15A-152(d).
Deferred adjudication in first-offender drug cases
A first offender with no previous felony or drug-related convictions who pleads or is found guilty on a charge of drug possession may be placed on probation. If probation is successfully completed (including any treatment ordered), the court will discharge the person and dismiss the proceedings without an adjudication of guilt. No conviction results, including for predicate offense purposes. N.C. Gen. Stat §§ 90-96(a); 90-113.14(a) (relating to toxic vapors offenses). If the offense is committed under age 22, the person may apply for expunction of records under N.C. Gen Stat. §§ 15A-145.2(a) or 15A-145.3(a) (relating to toxic vapors offenses). Sections 15A-145.2 and 15A-145.3 also provide for the expunction of certain first-time drug convictions.
First offenders who committed certain specified nonviolent felonies when under 18 may petition for expunction after four years. See N.C. Gen. Stat. § 15A-145.4. Misdemeanors committed under age 18 (except for traffic violations) and first offender alcohol-possession misdemeanors committed under age 21 are eligible for expunction two years after the date of conviction or after completion of any period of probation, whichever is later. See § 15A-145. The petition must be filed in the court of conviction, and must include affidavits of good character. The petitioner must agree to perform a minimum of 100 hours of community service and complete high school or earn a GED. If the court grants the expunction petition, the individual is not required to acknowledge the criminal records on any application, except for certain state certifications.
Note on “first offender” status under § 15A-145.1 through 145.4: Based on the requirement in § 15A-145.5(c) that an applicant show no previous expunctions under §§ 15A-145.1 through 15A-145.5, the courts have interpreted the term “first offender” to extend to someone previously granted relief under § 15A-145.5.
Where a charge against a person is dismissed or he is found not guilty, the person may apply to the court for an expunction of records relating to his apprehension or trial if he has no prior felony convictions. N.C. Gen. Stat. § 15A-146(a) – (a2) (as amended by SB-445 (2017)). Section 15A-146(a3) provides that
o person as to whom such an order has been entered under this section shall be held thereafter under any provision of any law to be guilty of perjury, or to be guilty of otherwise giving a false statement or response to any inquiry made for any purpose, by reason of his failure to recite or acknowledge any expunged entries concerning apprehension or trial.
Effective December 1, 2017, an individual may seek expunction of any dismissed charges in a case involving multiple charges regardless of whether all charges were dismissed. § 15A-146(a1) (as amended by SB-445 (2017)). Previously, expunction was unavailable in such cases unless all charges were dismissed.
See also §§ 15A-147(a)-(b) (expunction in case of identity theft); § 15A-149 (expunction where pardon of innocence granted).
The court may order the sealing of a juvenile court record. N.C. Gen. Stat. § 7B-3000(c). Sealed court records may only be viewed with a court order. Id.
A juvenile adjudicated undisciplined may petition the court for expunction upon turning age 18. N.C. Gen. Stat. § 7B-3200(a). A juvenile adjudication, with exceptions for certain classes of felonies, is eligible for expunction if the petitioner is at least age 18 and at least 18 months has elapsed since the adjudication. § 7B-3200(b). The petitioner must demonstrate good behavior and no subsequent adjudications or convictions. § 7B-3200(c). Juveniles do not need to report expunged proceedings. § 7B-3201(a). Certain gang crimes and cyber-bullying offenses committed under age 18 may be expunged as provided in N.C. Gen. Stat. §§ 15A-145.1 and 14-458.1(c).
C. Certificate of Relief
Effective December 1, 2011, an individual who is convicted of “no more than two Class G, H, or I felonies or misdemeanors in one session of court,” and who has no other convictions for a felony or misdemeanor other than a traffic violation, “may petition the court where the individual was convicted for a Certificate of Relief relieving collateral consequences[.]”4 N.C. Gen. Stat. § 15A‑173.2(a). Petitions are heard by “the senior resident superior court judge if the convictions were in superior court, or the chief district court judge if the convictions were in district court.” Id. The court may issue the certificate one year after the individual has completed his sentence (including any period of probation, post-release supervision, and parole), if he has complied with all requirements of his sentence, if he “is engaged in, or seeking to engage in, a lawful occupation or activity, including employment, training, education, or rehabilitative programs, or . . . otherwise has a lawful source of support,” if no criminal charges are pending against him, and if granting the petition “would not pose an unreasonable risk to the safety or welfare of the public or any individual.” § 15A-173.2(b)(1) through (6).
A Certificate of Relief “relieves all collateral sanctions, except those listed in [N.C. Gen. Stat.] § 15A-173.3, those sanctions imposed by the North Carolina Constitution or federal law, and any others specifically excluded in the certificate. A Certificate of Relief does not automatically relieve a disqualification; however, an administrative agency, governmental official, or court in a civil proceeding may consider a Certificate of Relief favorably in determining whether a conviction should result in disqualification.” § 15A-173.2(d). A Certificate of Relief does not result in “the expunction of any criminal history record information, nor does it constitute a pardon.” § 15A-173.2(e).
A Certificate of Relief “shall not be issued to relieve” the collateral sanctions relating to: sex offender registration; prohibition on firearm possession; driver’s license suspension, revocation, limitation or ineligibility; ineligibility for certification as a criminal justice officer or justice officer; and ineligibility for employment as a corrections or probation officer, or a prosecutor or investigator in either the Department of Justice or in the office of a district attorney. N.C. Gen. Stat. § 15A-173.3(1) – (5).
Procedures for issuance, modification and revocation are set forth in N.C. Gen. Stat. § 15A‑173.4 and include the following provisions:
The court must provide notice of the petition to the District Attorney, who may appear and be heard at any proceeding relating to the issuance, modification, or revocation of a Certificate of Relief. § 15A‑173.4(a), (c). Victims may also be heard. § 15A‑173.6.
The issuance, modification, and revocation of Certificates of Relief shall be a public record. § 15A‑173.4(e).
The court may modify or revoke a Certificate of Relief for just cause, which includes subsequent conviction of a felony or misdemeanor other than a traffic violation or a material misrepresentation in the petition. § 15A‑173.4(b).
In addition, N.C. Gen. Stat. § 15A-173.2(g) provides that the denial of a petition for a Certificate of Relief “shall state the reasons for the denial, and the petitioner may file a subsequent petition 12 months from the denial and shall demonstrate that the petitioner has remedied the defects in the previous petition and has complied with any conditions for reapplication set by the court . . . in order to have the petition granted.”
Certificate as evidence of due care
N.C. Gen. Stat. § 15A-173.5 provides:
“In a judicial or administrative proceeding alleging negligence, a Certificate of Relief is a bar to any action alleging lack of due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise transacting business or engaging in activity with the individual to whom the Certificate of Relief was issued, if the person against whom the judicial or administrative proceeding is brought knew of the Certificate of Relief at the time of the alleged negligence.”
III. Nondiscrimination in Licensing and Employment
North Carolina’s general licensing non-discrimination law, enacted in 2013, prohibits occupational licensing boards from automatically disqualifying an individual based on a criminal record unless the board is otherwise authorized by law to do so:
Unless the law governing a particular occupational licensing board provides otherwise, a board shall not automatically deny licensure on the basis of an applicant’s criminal history. If the board is authorized to deny a license to an applicant on the basis of conviction of any crime or for commission of a crime involving fraud or moral turpitude, and the applicant’s verified criminal history record reveals one or more convictions of any crime, the board may deny the license if it finds that denial is warranted after consideration of the following factors:
(1) The level and seriousness of the crime.
(2) The date of the crime.
(3) The age of the person at the time of the crime.
(4) The circumstances surrounding the commission of the crime, if known.
(5) The nexus between the criminal conduct and the prospective duties of the applicant as a licensee.
(6) The prison, jail, probation, parole, rehabilitation, and employment records of the applicant since the date the crime was committed.
(7) The subsequent commission of a crime by the applicant.
(8) Any affidavits or other written documents, including character references.
N.C. Gen. Stat. § 93B-8.1(b). The law does not apply to licenses issued by The North Carolina Criminal Justice Education and Training Standards Commission or the North Carolina Sheriffs’ Education and Training Standards Commission.
This exception, enacted in July 2010, is responsive to the North Carolina Supreme Court’s decision in Britt v. State, 681 S.E.2d 320 (N.C. 2009), which held that the right to bear arms in the state constitution precluded applying to the plaintiff, who had been convicted in 1979, had his rights restored in 1987 and whose rehabilitation was well established, the 2004 amendment to N.C. Gen. Stat. § 14-415.1 by which its ban on the possession of firearms by a convicted felon first became absolute, thereby requiring the plaintiff to relinquish firearms of which his ownership had been lawful under the previous version of the statute.
Ten of the sixteen pardons were granted by Governor Beverly Perdue (2009-2013) to the so-called “Wilmington 10” based on convictions stemming from the same incident. See Anne Blythe, Perdue pardons Wilmington 10, News and Observer (Jan. 1, 2013) http://www.newsobserver.com/2013/01/01/2576074/governor-pardons-wilmington-10.html.
Pursuant to N.C. Gen. Stat. § 15A-151(a), the Administrative Office of the Courts maintains a confidential file relating to expunged records, the contents of which may be disclosed to state court judges and other specified state agencies only for certain specified purposes: e.g., to a judge “for the purpose of ascertaining whether a person charged with an offense has been previously granted a discharge or an expunction,” and to law enforcement agencies for employment and certification purposes.
“Collateral consequence” is defined in N.C. Gen. Stat. § 15A‑173.1(1) as a “collateral sanction or a disqualification.” “Collateral sanction” is defined as a “penalty, disability, or disadvantage, however denominated, imposed on an individual as a result of the individual’s conviction of an offense which applies by operation of law, whether or not the penalty, disability, or disadvantage is included in the judgment or sentence.” Id. § 15A‑173.1(2). “Disqualification” is defined as a “penalty, disability, or disadvantage, however denominated, that an administrative agency, governmental official, or court in a civil proceeding may impose on an individual on grounds relating to the individual’s conviction of an offense.” Id. § 15A‑173.1(3).