In this guide, I will look at the expungement process, the certificate of relief process, and community resources as possible ways to alleviate the impact of criminal convictions in North Carolina.
North Carolina's expungement laws are divided into different categories, including statutes related to first-time misdemeanor and alcohol offenders, first-time drug possession offenders, and certain first-time felony offenders.
A first-time offender convicted (by plea or trial) of a misdemeanor committed before the offender turned 18 (or possession of alcohol before the offender turned 21) is eligible for an expunction. The offender must wait 2 years from the date of conviction or completion of probation, whichever occurred later.
An expungement is also possible in the case of a first-time drug possession offender. An individual under age 21 who is charged with possession of a controlled substance or possession of drug paraphernalia and who successfully completes the deferred prosecution program pursuant to North Carolina General Statutes Section 90-96 is eligible for an expungement. Also, an individual (who was under 21 at the time of the offense) convicted of possession of a controlled substance or possession of drug paraphernalia may seek an expungement 12 months after the conviction.
If a first-time offender is convicted of a non-violent felony offense committed before age 18, then the person could be eligible for an expungement under certain conditions. For example, the conviction cannot be a Class A-G felony offense, the offense cannot include assault as an essential element, the offense cannot involve impaired driving, the offense cannot include a sex offender registration requirement, the offense cannot be a sex-related offense or stalking, and the offense cannot involve heroin, methamphetamine, or sell/delivery/possession with the intent to sell or deliver cocaine (unless the offender received a prayer for judgment continued for a Class G, H, or I felony). In this situation, the offender must wait 15 years from the date of conviction or the conclusion of the active/suspended sentence, whichever occurred later.
Under certain conditions, a first-time offender may also seek an expunction for any non-violent felony or misdemeanor without an age limitation. For instance, similar to the situation above, the conviction cannot be a Class A-G felony offense or a Class A1 misdemeanor, the offense cannot include assault as an essential element, the offense cannot involve impaired driving, the offense cannot include a sex offender registration requirement, the offense cannot be a sex-related offense or stalking, and the offense cannot involve heroin, methamphetamine, or sell/delivery/possession with the intent to sell or deliver cocaine. In this situation, the offender must wait 15 years from the date of conviction or the conclusion of the active/suspended sentence, whichever occurred later.
Finally, an individual whose charges are dismissed (e.g. following successful completion of a deferred prosecution agreement) or who is found not guilty may seek an expungement.
Certificate of Relief
The purpose of a certificate of relief is to relieve an individual of the collateral consequences that generally result from a criminal conviction.
North Carolina General Statutes Section 15A-173.1 defines the key terms. A collateral consequence refers to "[a] collateral sanction or disqualification." A collateral sanction is "[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." Meanwhile, a disqualification is "[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."
North Carolina General Statutes Section 15A-173.2 provides specific information on the process for obtaining a certificate of relief. It is important to note that a certificate of relief does not constitute an expungement or a pardon. Instead, pursuant to NCGS Section 15A-173.2(d), "[it] relieves all collateral sanctions, except those listed in 15A-173.3, those sanctions imposed by the North Carolina Constitution or federal law, and any others specifically excluded in the certificate." However, a certificate "does not automatically relieve a disqualification."
To qualify, an individual must not have been convicted of more than two Class G, H, or I felonies or two misdemeanors in a single court session and must otherwise have a clean record (except for a traffic violation). The petitioner must show the following by a preponderance of the evidence. There must have been 12 months since the petitioner completed his/her sentence. The petitioner must be engaging in (or must be trying to obtain) a lawful activity, employment, training, education, or a rehabilitation program. The petitioner must have complied with all parts of his/her sentence and must not have violated any requirements of the sentence. The petitioner cannot have any pending charges. Finally, under NCGS Section 15A-173.2(b)(6), "[g]ranting the petition would not pose an unreasonable risk to the safety or welfare of the public or any individual."
The UNC School of Government has created a site to determine if a certificate of relief may be beneficial. An individual requesting a certificate of relief must submit a petition along with a criminal history. The Administrative Office of the Courts has created a form with instructions. The petitioner must also notify the District Attorney's Office in the jurisdiction where the case was handled and the Court may consider victim information.
In the sections above, I have discussed North Carolina's expungement and certificate of relief processes as possible ways to address the impact of a criminal conviction. These options generally pertain to individuals who have only been through the criminal process once and have relatively minor convictions.
However, individuals with multiple convictions and those who committed serious offenses and have served significant prison time face difficult situations. They are unable to remove the existence of a prior conviction through the expungement process and often struggle to overcome the stigma of a criminal record. When these individuals commit themselves to changing their lives and making a positive impact on society, they must focus on alternatives.
Community resources are one option for individuals trying to better their lives but struggling to find work due to their criminal history. For example, Capital Area Reentry serves the Triangle area. For more information on the organization and its services, take a look at their website below. Similarly, the NEW Reentry Council serves Nash, Edgecombe, and Wilson Counties in the eastern part of the state.
Furthermore, some jurisdictions are supporting the "ban the box" initiative, which is designed to help prior offenders improve their hiring chances by requiring employers not to include a criminal history question on a job application. Employers would instead wait until later in the hiring process to consider an applicant's background. Take a look at a recent summary from the National Employment Law Project in the link below.
President Obama supported "banning the box" for federal positions. In North Carolina, the House passed a bill to "ban the box" for some state government positions during the last session. It will be interesting to see if this movement continues to gain traction across the country.
The information included in this Guide is for informational purposes only. It does not constitute legal advice and, therefore, does not create an attorney/client relationship with anyone.
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