Relief from a Criminal Conviction (2023 Edition)

Most expunction statutes with a waiting period of this type are subject to two possible interpretations. One interpretation is that the statutes can be construed consistently—essentially, that the person may not file an expunction petition until the later of two events: (i) the passage of a specified number of years since the date of the conviction or (ii) completion of the person’s sentence. Under this interpretation, a person always must wait the specified number of years after the date of conviction before petitioning for an expunction; if the person has not completed his or her sentence within that time, he or she must wait any additional time it takes to complete the sentence. A second interpretation is that the statutes that include roman numerals in the above manner require this result but statutes without roman numerals lead to a different result—essentially, that the person must wait until the specified number of years have passed since the date of conviction and completion of the person’s sentence, whichever is later. Under this approach, the person always must wait the specified period of time after completing his or her sentence, which necessarily will be at least that amount of time after conviction and usually longer.

Two statutes with clear language are G.S. 15A-145 on expunctions of misdemeanors committed before age 18 or age 21 and G.S. 15A-145.1 on expunctions of gang offenses committed before age 18. Both incorporate roman numerals, like those above, into the waiting period language to make the requirements clear. Thus, G.S. 15A-145 states that a petition cannot be filed “earlier than: (i) two years after the date of the conviction, or (ii) the completion of any period of probation, whichever occurs later. . . .” The General Assembly added the roman numerals as part of a technical corrections bill in 2008, S.L. 2008-187, sec. 35 (S 1632). Before then, the statute stated that a petition could not be filed “earlier than two years after the date of the conviction or any period of probation, whichever occurs later. . . .” This phrasing was potentially unclear because it could be interpreted as requiring a defendant to wait two years after the date of conviction and the period of probation. The problem with that interpretation is that it made the language about the date of conviction superfluous. A person always completes his or her sentence, including probation, sometime after the date of his or her conviction; therefore, a person would always have to wait two years after completing probation. The roman numerals clarify that the statute requires the defendant to wait two years after the date of conviction and longer only if he or she has not completed probation.

G.S. 15A-145.1 contains the same clarifying roman numerals. That statute was enacted by the General Assembly in 2009 when it consolidated the expunction statutes. The General Assembly imported the waiting-period language, including the roman numerals, from the expunction provisions in the gang offense statute, G.S. 14-50.30. The General Assembly enacted the gang offense statute in 2008, the same year it made the technical correction to G.S. 15A-145, described above.

Expunction statutes enacted after 2008 do not use roman numerals. G.S. 15A-145.4(c), which was enacted in 2011 and allows expunction of nonviolent felonies committed before age 18, states that an expunction petition “may not be filed earlier than four years after the date of the conviction or when any active sentence, period of probation, and post-release supervision has been served, whichever occurs later.” One interpretation of this provision is that the person always must wait four years after completing his or her sentence, which necessarily will be at least that amount of time after the date of conviction and usually longer. An alternative interpretation is that the provisions should be read consistently with the statutes that contain clarifying roman numerals. Thus, the person must wait four years after conviction and, if the defendant has not completed his or her sentence within that time, any additional time it takes to complete the sentence. The person would not have to wait four years after the date of conviction and the completion of the defendant’s sentence, which would render the conviction language superfluous.

G.S. 15A-145.5, which was enacted in 2012 and allows expunction of older nonviolent misdemeanors and nonviolent felonies, initially contained the same phrasing. Later, the statute was revised in a way that clarified the waiting period for most of the categories of expunctions but left the same phrasing for the third category. For expunction of a felony conviction, G.S. 15A-145.5(c)(2)a. states that a petition may not be filed earlier than “10 years after the date of the conviction or 10 years after any active sentence, period of probation, or post-release supervision has been served, whichever occurs later.” For expunction of more than one misdemeanor conviction, G.S. 15A-145.5(c)(2) states that a petition may not be filed earlier than “seven years after the date of the person’s last conviction, other than a traffic offense not listed in the petition for expunction, or seven years after any active sentence, period of probation, or post-release supervision has been served, whichever occurs later.” For expunction of two or three felony convictions after 20 years, a category of relief added in 2021, G.S. 15A-145.5(c)(2)b. contains the same structure. The same structure applies to expunction of a felony breaking and entering conviction after 15 years, added in 2023, in G.S. 15-145.5(c)(2)a1. These formulations effectively make the sentence-completion date the starting date of the waiting period because a person’s sentence will always end at the same time and usually after the date of conviction. In contrast, for expunction of one misdemeanor conviction, G.S. 15A-145.5(c)(1) states that a petition may not be filed earlier than “five years after the date of the conviction or when any active sentence, period of probation, and post-release supervision has been served, whichever occurs later.” This phrasing is subject to the alternative interpretations discussed above. The General Assembly’s phrasing of the waiting period language for the other categories provides additional support for the “roman numeral” interpretation for expunction of one misdemeanor—that the person must wait (i) five years after the date of conviction or (ii) when any active sentence, period of probation, and post-release supervision has been served, whichever occurs later.

A final statute on expunction of prostitution offenses, passed in 2014 as part of a much larger act on sex trafficking, contains a similar ambiguity. It requires that “at least three years have passed since the date of conviction or the completion of any active sentence, period of probation, and post-release supervision, whichever occurs later.” G.S. 15A-145.6(b)(2)b. This phrasing may require that the person wait at least three years after completion of his or her sentence, which necessarily will be three years after conviction and usually longer. Alternatively, the provision could be read as requiring the petitioner to wait until either (i) three years have passed since the date of conviction or (ii) completion of his or her sentence, whichever occurs later.

No. The purpose of an expunction, stated in various ways in the expunction statutes, is to restore a person to the status he or she occupied before conviction of the offense. An expunged conviction therefore does not constitute a conviction for purposes of determining whether a person has a prior disqualifying conviction. However, some expunction statutes provide that a prior expunction of a particular kind disqualifies a person from obtaining another expunction. For that reason, a prior expunction, if made a disqualifier by the particular statute, would preclude a person from obtaining another expunction.

Other relief statutes operate similarly. For example, a person may obtain a certificate of relief for three prior convictions if the person otherwise meets the criteria for relief. An expunged conviction, because it has been expunged, does not constitute a disqualifying conviction. In addition, a prior expunction does not disqualify a person from obtaining a certificate of relief because, in contrast to many of the expunction statutes, the certificate of relief statute does not list expunctions as disqualifiers.

For convictions on or after July 1, 1975, a conviction based on a no contest plea is both subject to expunction and a bar to expunction of other matters if the plea is for an offense specified by the expunction statute. For convictions before July 1, 1975, the answer to each question may diverge.

In North Carolina, a person may be convicted of a criminal offense in three ways: by pleading guilty, by pleading no contest, or by pleading not guilty and being found guilty by a judge or jury. If a person enters a no contest plea, the person neither admits nor denies guilt, which limits the use of the criminal conviction in a later civil lawsuit against the person for the conduct alleged in the criminal case. See Michael G. Okun & John Rubin, Employment Consequences of a Criminal Conviction in North Carolina, Popular Gov’t, Winter 1998, at n.65 and accompanying text. In other respects, a conviction based on a no contest plea is like other criminal convictions, at least for convictions on or after July 1, 1975. Effective that year, the General Assembly revised the law to require the court to find a factual basis for the criminal charges before accepting a no contest plea and entering a judgment of conviction. S.L. 1973-1286 (H 256) (adding G.S. 15A-1022(c) requiring such a finding). Thus, on or after that date, a conviction based on a no contest plea includes an adjudication of guilt.

Before July 1, 1975, the court in a criminal case could impose a judgment and sentence based on a no contest plea but could not adjudicate the person guilty; without an adjudication of guilt, “there was not a conviction to be used in another case.” Davis v. Hiatt, 326 N.C. 462, 466 (1990) (reviewing case law and finding that after change in law a conviction based on a no contest plea counted as a conviction in later proceeding to revoke a driver’s license); State v. Outlaw, 326 N.C. 467, 468–69 (1990) (reviewing case law). The conviction should still be subject to expunction because the record will still show that the person has a conviction and will be viewed as such by employers, landlords, and others. In light of the above decisions, however, the conviction would not appear to constitute a prior conviction for the purpose of a prior-conviction bar because it does not involve an adjudication of guilt.

A person should be able to obtain an expunction of a true PJC under the same circumstances as for an expunction of a final judgment of conviction, both for policy reasons and under the language of the statutes. The treatment of a PJC for the purpose of determining whether it is a bar to relief is not necessarily the same, however. The answer depends on the language of the particular statute and the cases interpreting it.

As with other expunction questions, trial courts’ treatment of PJCs may vary. A person interested in a future expunction may benefit more by obtaining a diversion (deferred prosecution or discharge and dismissal), which has more certain consequences.

Generally. A true PJC, in the sense used here, occurs when a defendant has pled guilty or has been found guilty and the court indefinitely continues the case without entering judgment. (A court sometimes will call its order a PJC when it imposes conditions amounting to punishment or when it briefly continues the case for later sentencing. The impact of these types of determinations is discussed below.) Although no judgment of conviction is entered, a true PJC is often the final disposition in the case.

At one time the effect of a PJC had a more settled meaning. It was viewed as a way for a judge, in the exercise of discretion, to lessen the impact of a criminal proceeding. By withholding judgment in a case that he or she considered appropriate, a judge could keep a person from having a conviction and bearing the attendant consequences. See, e.g., Barbour v. Scheidt, 246 N.C. 169 (1957) (recognizing that PJC is proper where court is satisfied, by reason of extenuating circumstances, sufficient cause, or question of law, that public justice does not require judgment and sentence). In Smith v. Commonwealth, 113 S.E. 707, 709–10 (Va. 1922), cited with approval in Barbour, the court explained the distinction between a guilty verdict and a judgment of conviction following a determination of guilt. A guilty verdict allows further action in the proceedings, such as entry of judgment and sentence. It also triggers the opportunity for relief, such as a pardon. To trigger punitive consequences in other proceedings, however, the “great weight of authority” requires that a judgment of conviction be entered.

Beginning in the 1990s, North Carolina law began to shift. In a series of cases, the North Carolina appellate courts began treating a true PJC as a conviction for the purpose of other proceedings. See, e.g., State v. Sidberry, 337 N.C. 779 (1994) (concluding that State could impeach defendant with PJC as a conviction under N.C. Evidence Rule 609); Britt v. North Carolina Sheriffs’ Educ. and Training Standards Comm’n, 348 N.C. 573 (1998) (deferring to commission’s interpretation that PJC constituted conviction and upholding revocation of deputy sheriff’s certification); State v. Hatcher, 136 N.C. App. 524 (2000) (allowing true PJC to be used as prior conviction under structured sentencing for new offense); Friend v. State, 166 N.C. App. 99 (2005) (holding that PJC for felony barred issuance of pistol permit); Mace v. North Carolina Dept. of Insurance, 270 N.C. App. 30 (2020) (holding that PJC triggered requirement to report by insurance agent to insurance department). Compare State v. Southern, 314 N.C. 110 (1985) (holding under Fair Sentencing Act that true PJC could not be used as prior conviction). As a result, although a PJC may seem beneficial to a defendant, it often carries the consequences of a criminal conviction.  See also John Rubin, Does a “Prayer for Judgment Continued” Differ Very Much from a “Prayer for Judgment Granted?”, N.C. Crim. L., UNC Sch. of Gov’t Blog (Mar. 3, 2020).

The North Carolina courts have continued to recognize that, if the applicable laws so provide, a PJC does not constitute a conviction for the purpose of other proceedings. See, e.g., Florence v. Hiatt, 101 N.C. App. 539 (1991) (recognizing that true PJC did not constitute final conviction under statute authorizing DMV to suspend or revoke a person’s driving privileges). Recent court decisions as well as legislative changes, discussed further below, have reinforced this possibility, recognizing circumstances in which a true PJC should not be treated as a conviction.

Expunction of PJC. Both policy reasons and the pertinent statutory language support expunction of a true PJC. See also Jamie Markham, Can You Expunge a PJC?, N.C. Crim. L., UNC Sch. of Gov’t Blog (July 29, 2010) (suggesting this result). Although it does not result in a judgment of conviction, a true PJC carries many of the same criminal and civil consequences, such as greater punishment in a subsequent criminal case or loss of an employment license, as indicated by the rulings above. Expunction of a PJC can therefore be as important to a person as expunction of a final judgment of conviction. It seems unlikely that the General Assembly would have intended for a person who receives a PJC, which essentially is an act of judicial leniency, to be worse off than a person who receives a judgment and sentence. 

Praying judgment by the defendant and then petitioning for an expunction is not a viable substitute. The resulting judgment would appear as a new conviction, which could have lingering consequences despite a later expunction. Even if advisable, praying judgment may not be permissible. See generally State v. Doss, 268 N.C. App. 547 (2019) (observing that the defendant consented to the PJC in district court, which waived any right to appeal, and that it would be unfair years later for the defendant to ask the court to enter judgment and then appeal the judgment to superior court, where the State would no longer have the evidence to proceed), summarized here.

The wording of the expunction statutes supports expunction of a PJC. For example, G.S. 15A-145 allows expunction of a misdemeanor conviction if the person “pleads guilty to or is guilty of a misdemeanor other than a traffic violation.” The statute does not require a judgment of conviction. This language corresponds to the procedure for a PJC, in which a person pleads guilty to or is found guilty of the offense and the court withholds entry of judgment. Other expunction statutes likewise authorize expunction when a person pleads guilty or is found guilty. See G.S. 15A-145.1(a) (gang offense); G.S. 15A-145.2(c) (controlled substance and drug paraphernalia offenses); G.S. 15A-145.3(c) (toxic vapors offense); G.S. 15A-145.4(c) (nonviolent felony committed before age 18).

Some of the newer expunction statutes do not specifically refer to guilty pleas or findings of guilt. See G.S. 15A-145.5 (older felonies and misdemeanors); G.S. 15A-145.6 (prostitution offenses); G.S. 15A-145.8A (adult convictions of juveniles); G.S. 15A-145.9 (convictions of human trafficking victims). Instead, they refer generally to expunction of a conviction. Since these statutes were intended to expand the right to an expunction, and they do not include clear language to the contrary, this guide’s view is that the General Assembly intended for them to be construed consistently with the other relief statutes and allow expunctions of PJCs in the same circumstances as judgments of conviction. See supra Overview: Interpreting Relief Statutes (discussing importance of considering overall legislative scheme in construing language in individual statutes within the scheme).

In State v. McDonald, 290 N.C. App. 92 (2023), the court held that a true PJC was not a final judgment and the State could later pray judgment (that is, request that the court enter judgment). In the circumstances of the case, the court found a delay of several years before the State requested judgment was not unreasonable. The result in McDonald does not alter this guide’s view that a PJC is eligible for an expunction under the expunction statutes governing convictions. The reason is that the law on PJCs and the law on expunctions are independent. The State’s ability to pray judgment on a true PJC does not override the statutory authority to expunge eligible matters after any required waiting period, including true PJCs when they qualify for expunction under the applicable statutes on convictions.

Prior PJC as potential bar. For the sake of consistency, it would be simpler to interpret the impact of a PJC in the same way throughout the relief statutes. However, both the General Assembly and the courts have identified circumstances in which a PJC should not be treated as a conviction. In some instances, the law says so explicitly; in others, the courts have reached this result through interpretation. For the purpose of determining whether a PJC bars relief or triggers adverse consequences, the relief statutes can be divided into three basic categories.

One category of statutes expressly provides that a PJC bars relief. The statute authorizing restoration of firearm rights is an example. It requires the court to deny relief if, among other things, the petitioner has received a prayer for judgment continued for a misdemeanor crime of violence, G.S. 14-415.4(e)(6), or a prayer for judgment continued for a felony, G.S. 14-415.4(e)(7). Even this seemingly clear statement is not free from uncertainty. North Carolina’s prohibition on possession of a firearm by a person convicted of a felony, which is lifted by restoration, defines a conviction as a “final judgment.” G.S. 14-415.1(b). See also John Rubin, Does a “Prayer for Judgment Continued” Differ Very Much from a “Prayer for Judgment Granted?”, N.C. Crim. L., UNC Sch. of Gov’t Blog (Mar. 3, 2020) (discussing state and federal decisions on impact of PJC on possession of a firearm by a person convicted of a felony). In other contexts, discussed below, the North Carolina courts have held that a PJC does not trigger provisions requiring a final judgment.

A second category of statutes provides for the opposite result. The most prominent example is in Chapter 20 of the General Statutes, which treats a PJC as a conviction for Chapter 20 purposes, such as driver’s license consequences, only if it is a person’s third PJC within a five-year period or involves a person with a commercial driver’s license or an offense in a commercial motor vehicle. G.S. 20-4.01(4a). An example is the statute on expunction of a nonviolent felony committed before age 18. It provides that certain drug offenses are not “nonviolent felonies” and therefore are not eligible for expunction. However, in 2012 (in S.L. 2012-191 (H 1023)), the General Assembly amended the statute to provide that PJCs for otherwise-excluded drug offenses are eligible for expunction. G.S. 15A-145.4(a)(6).

Some statutes do not specifically refer to PJCs, but the courts have found that other language or principles exempt them from the consequences that follow a conviction. In Walters v. Cooper, 226 N.C. App. 166 (2013), aff’d per curiam, 367 N.C. 117 (2013), the court recognized that the sex offender registration statutes define a “reportable conviction,” which triggers registration obligations, as a “final conviction.” Because a PJC—in Walters for misdemeanor sexual battery—is not a final conviction, it does not trigger those obligations. See also Little v. Little, 226 N.C. App. 499 (2013) (holding that collateral estoppel principles did not permit court to rely on PJC for assault as basis for issuing domestic violence protective order because PJC is not a final judgment); Guzman-Gonzalez v. Sessions, 894 F.3d 131 (4th Cir. 2018) (holding that PJC was not conviction for immigration purpose of cancellation of removal; assessment of costs did not constitute “punishment” or “penalty” as required by definition of conviction).

The third and by far largest category of relief statutes is silent about the effect of a PJC, stating generally that a prior conviction of certain offenses is a disqualifier. Most of the relief statutes discussed in this guide fall into this third category. See, e.g., G.S. 15A-145.4(c) (allowing expunction if person “has not previously been convicted” of specified offenses). On the one hand, the trend in the law has been to treat general references to convictions as including PJCs. Under this approach, a PJC would be a bar under relief statutes stating generally that a conviction is a bar. On the other hand, recent cases have looked more closely at the particular language at issue—for example, in the cases cited above, at the requirement that the conviction be “final.” The relief statutes do not use that term but do employ different language in describing the matters subject to expunction and the prior matters that bar expunction. For the former, most of the statutes refer to findings of guilt and guilty pleas, with or without a judgment of conviction. For the latter, the statutes refer to convictions. No appellate decisions have addressed the impact of a prior PJC in the context of relief statutes, but the policies furthered by those statutes may support an interpretation that effectuates a judge’s act of leniency in granting a PJC and makes relief more widely available.

Other determinations called PJCs. The discussion above concerns a true PJC (that is, the defendant has pled guilty or has been found guilty and the court has indefinitely continued the case without entering judgment). Sometimes, a court will call its order a PJC even when it imposes conditions amounting to punishment. Unlike a true PJC, such an order is considered a judgment of conviction. See State v. Popp, 197 N.C. App. 226, 228 (2009) (holding that a PJC with conditions amounting to punishment “loses its character as a PJC and becomes a final judgment”). A PJC that constitutes a judgment of conviction is subject to expunction like any other conviction. It also may bar relief under statutes that make a prior conviction a disqualifier. If the latter situation occurs, a person may need to pursue other relief, such as a motion for appropriate relief to vacate the conviction.

In some instances, the court may continue a case for sentencing after an adjudication of guilt. Such an order is neither the final disposition in the case nor a judgment of conviction. A person therefore would have to wait until the court enters judgment and sentence before seeking an expunction. The adjudication of guilt, however, may bar relief or trigger adverse consequences without entry of judgment. See, e.g., State v. Sidberry, 337 N.C. 779 (1994) (allowing State to impeach defendant under N.C. Evidence Rule 609 where defendant pled guilty and court continued case for sentencing).

North Carolina’s statutes previously allowed an expunction of a misdemeanor DWI conviction in limited circumstances. Effective for petitions filed or pending on or after December 1, 2015, no statute allows expunction of a conviction of a DWI or other impaired driving offense as defined in G.S. 20-4.01(24a). S.L. 2015-150 (H 273). (While the General Assembly could prospectively eliminate relief for petitions filed on or after the effective date of the 2015 legislation, the elimination of relief for petitions filed but not yet decided before the effective date may violate ex post facto principles. See generally State v. Ramseur, 374 N.C. 658, 677 (2020) (holding that retroactive application of repeal of Racial Justice Act to pending motion for relief violated ex post facto principles; stating that General Assembly may pass “ameliorative laws granting potential relief from crimes and punishment to defendants for crimes already committed, and, having done so, it cannot then withdraw that relief consistent with the Ex Post Facto Clause”).)

A person still may obtain an expunction of a dismissed charge and a certificate of relief for a conviction. Further, under statutes that bar relief because of a conviction other than a traffic violation, a misdemeanor DWI conviction does not appear to bar relief because the term “traffic violation” appears to encompass misdemeanor DWIs. The questions below address these matters.

Several North Carolina relief statutes use the term “traffic violation,” but none define the term. No appellate decisions have addressed the issue. With those qualifiers, the soundest interpretation appears to be that the General Assembly intended for the term “traffic violation,” wherever it appears in the relief statutes, to include misdemeanor DWIs. Several interrelated reasons support this interpretation.

First, the term “traffic violation” most likely refers to violations of Chapter 20 of the North Carolina General Statutes, the chapter that the General Assembly dedicated to regulation of traffic matters. Chapter 20 provides a certain and readily identifiable set of offenses, allowing for consistent results. Some Chapter 20 violations do not involve traffic matters in the customary sense, and some statutes in other chapters could be considered as involving traffic matters, but it seems unlikely that the General Assembly intended for the courts to engage in a statute-by-statute and case-by-case determination of whether an offense is or is not a traffic violation. In light of the volume of expunction requests received by the courts each year, the General Assembly more likely intended the practical approach of using Chapter 20 as the source for traffic violations.

Second, in the context of North Carolina’s relief statutes, the term “traffic violation” refers to crimes, not infractions. All of the relief statutes (except two statutes that make no reference to traffic violations) address criminal offenses and employ terminology used for criminal offenses, such as determinations of “guilt” and “convictions.” Different terminology—determinations and findings of “responsibility”—applies to infractions. One of the statutes that refers to infractions involves a non-traffic matter that is no longer an infraction—possession of alcohol before December 1, 1999, in violation of G.S. 18B-302(i). See G.S. 15A-146(a) (allowing expunction of dismissal or finding of not responsible for infraction under previous version of G.S. 18B-302(i); statute was revised to allow this relief when General Assembly, in S.L. 1999-406 (H 1135), increased violation to misdemeanor). The other statute that refers to infractions involves automatic expunctions when all charges in a case, whether it involves traffic or nontraffic matters, are dismissed or result in a finding of not guilty or not responsible. See G.S. 15A-146(a4).

Third, the wording of the relief statutes suggests that, when used, the term “traffic violation” refers to misdemeanors, not felonies. One of the earliest relief statutes, G.S. 15A-145, demonstrates this approach, allowing a person to obtain an expunction for conviction of an offense before age 18 if, among other things, the person “has not previously been convicted of any felony, or misdemeanor other than a traffic violation, under the laws . . . .” (emphasis added). The commas setting off the italicized phrase show that the General Assembly intended to link the terms “misdemeanor” and “traffic violation.” The history of G.S. 15A-146, allowing expunction of dismissals, reflects the same approach. Originally, that statute barred relief if the person had been convicted of a felony or misdemeanor other than a traffic violation. S.L. 1979-61 (H 44). The General Assembly later revised G.S. 15A-146 to remove the misdemeanor conviction bar but continued to bar relief for any felony conviction, with no exception for traffic violations. (The statute now contains no bar based on prior convictions.) Later relief statutes are not as precise in their phrasing and punctuation but still link misdemeanors and traffic violations by placing the terms next to each other. For example, G.S. 15A-145.1 allows an expunction if, among other things, the person “has not previously been convicted of any felony or misdemeanor other than a traffic violation . . . .” Similar language appears in other expunction statutes (G.S. 15A-145.2(a)(1); G.S. 15A-145.3(a)(1); G.S. 15A-145.4(b)) as well as in the certificate of relief statute. G.S. 15A-173.2(a).

Somewhat more problematic are newer expunction statutes, such as G.S. 15A-145.5, which in an earlier version used the terms “felony” and “misdemeanor” in no particular order. This ambiguous phrasing could be construed in light of the General Assembly’s overall approach—that the term “traffic violation” refers to misdemeanors only. See 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Construction §§ 47:15, 47:35 (7th ed., Nov. 2023) (observing that courts have disregarded or transposed punctuation to effectuate legislative intent as well as transposed words or phrases where necessary to give a statute meaning, make it consistent throughout, or correct inadvertent phrasing). The latest version of G.S. 15A-145.5 eliminates this discrepancy, placing the words misdemeanor and traffic violation next to each other, as in the statutes above. See G.S. 15A-145(c1)(1). The statute introduces a new term, “traffic offense,” but its placement in the statute suggests that it refers to misdemeanor traffic violations only. See G.S. 15A-145(c)(1)b. (stating that traffic offense not listed in expunction petition is not counted in calculating waiting period to expunge more than one misdemeanor conviction); G.S. 15A-145.5(c2)(6)a. (providing that person must be conviction-free, other than for traffic offense, to expunge one misdemeanor conviction).

Fourth, a DWI is a misdemeanor violation of Chapter 20. See G.S. 20-138.1(d) (so stating). Unlike most misdemeanors, a DWI does not have a specific classification, but in other contexts 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). 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, e.g., Blakely v. Washington, 542 U.S. 296 (2004) (establishing general rule); State v. Speight, 359 N.C. 602 (2005) (applying Blakely to DWI sentencing), vacated on other grounds, 548 U.S. 923 (2006). As a result of those decisions, a DWI conviction at Levels Three, Four, or Five, which carries a maximum sentence from 60 days to six months (see G.S. 20-179(i), (j), (k)), might be considered a Class 2 misdemeanor. See G.S.14-3(a) (stating that offense without specific classification under structured sentencing is Class 1 misdemeanor if maximum punishment is more than six months and Class 2 misdemeanor if maximum punishment is more than 30 days and not more than six months). No cases have specifically addressed the classification 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), it may be considered a Class 1 misdemeanor under the above authorities.

Last, the North Carolina relief statutes do not exempt DWIs from the term “traffic violation.” Recent legislation, discussed below, precludes expunction of DWI convictions, but it does not define traffic violation in a way that excludes DWIs. Compare People v. Bosma, 465 N.W.2d 24 (Mich. Ct. App. 1990) (finding that impaired driving is traffic offense for the purpose of applying Michigan’s expunction statutes) with State v. Yackley, 539 N.E.2d 1118 (Ohio 1989) (recognizing that Ohio expunction statutes provide that “minor traffic convictions” are not a bar to relief and that they specifically make impaired driving a bar); see also G.S. 15A-1340.14(b)(5) (providing that prior record level under structured sentencing does not include a prior conviction of a misdemeanor traffic offense under Chapter 20 of the General Statutes except for a prior misdemeanor conviction for impaired driving, commercial impaired driving, and misdemeanor death by vehicle, an offense based on impaired driving).

Three statutes allow relief for charges and convictions of misdemeanor traffic violations: G.S. 15A-145.5 (expunction of older nonviolent felonies and nonviolent misdemeanors), G.S. 15A-146 (expunction of dismissals), and G.S. 15A-173.2 (certificate of relief). The statutes generally allow this result because the list of offenses subject to relief is broad enough to cover traffic violations and only certain traffic violations are excluded from the list. Legislation enacted in 2015, and reinforced in 2021, eliminated the possibility of an expunction of a DWI conviction under G.S. 15A-145.5, but it does not affect the availability of relief under the other two statutes.

Relief under G.S. 15A-145.5. This statute 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 Kyprianides v. Martin, 234 N.C. App. 665 (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).

Initially, a misdemeanor DWI conviction was not on the list of excluded offenses in G.S. 15A-145.5. The only traffic offenses on the excluded list were felony offenses involving a commercial vehicle. S.L. 2015-150 (H 273), revised G.S. 15A-145.5(a), among other statutes, to provide that a DWI conviction is not a nonviolent offense and therefore is not eligible to be expunged. See also State v. Neira, 270 N.C. App. 359 (2020) (holding that G.S. 15A-145.5 did not preclude expunction of conviction of felonious speeding to elude arrest even though evidence showed that defendant was impaired and defendant was convicted in same case of impaired driving; offense of felonious speeding to elude arrest is not an offense involving impaired driving under G.S. 20-4.01(24a), which is the category of offenses excluded from expunction). S.L. 2021-118 (S 301) repealed the part of G.S. 15A-145.5 providing that a DWI conviction is not a nonviolent offense and, in its place, added a new provision, G.S. 15A-145.5(a1), stating simply that a DWI conviction is not eligible to be expunged. This change maintained the prohibition on expunging DWI convictions but removed a DWI conviction as a bar to expunging other convictions, discussed below.

Relief under G.S. 15A-146 and G.S. 15A-173.2. G.S. 15A-146 allows expunctions of dismissals and acquittals, and G.S. 15A-173.2 authorizes certificates of relief following convictions. Neither excludes traffic violations, including DWI charges and convictions, from relief.

Other statutes. G.S. 15A-145.4 allows for expunctions of convictions for “nonviolent” felonies committed before age 18. Because the statute limits relief to Class H and I felonies, it does not allow expunction of a misdemeanor DWI conviction. S.L. 2015-150 (H 273) revised G.S. 15A-145.4, among other statutes, to specifically disallow an expunction of any felony offense involving impaired driving.

G.S. 15A-145.9 allows for expunctions of convictions of “nonviolent” offenses by human trafficking victims. As with G.S. 15A-145.4 and G.S. 15A-145.5, it defines “nonviolent” by the offenses it excludes, including an exclusion for “traffic offenses.” Most expunction statutes use the term “traffic violation,” which in this guide’s view means a misdemeanor conviction under Chapter 20 of the General Statutes. Although the General Assembly may have intended to use the terms interchangeably, in this instance the term “traffic offense” may cover both felony and misdemeanor convictions. The reason is that the list of exclusions in G.S. 15A-145.9 is patterned after the list of exclusions in G.S. 15A-145.4 and G.S. 15A-145.5, which excludes any offense involving impaired driving as defined in G.S. 20-4.01(24a) and felony offenses involving a commercial vehicle. The legislative drafters of G.S. 15A-145.9 may have used the term “traffic offense” as a shorthand way to refer to impaired driving and other traffic offenses, whether misdemeanors or felonies. 

Previously, G.S. 15A-145 was unclear about the availability of an expunction for a misdemeanor DWI conviction. It allows an expunction of a misdemeanor other than a traffic violation if committed before age 18. Under the approach suggested here, the statute would not allow expunction of a misdemeanor DWI conviction because it is a traffic violation. A legislative change in 2007 created some uncertainty, however. In 2007, the General Assembly amended G.S. 15A-145(c) to require DMV to expunge a civil license revocation resulting from a criminal charge if the court expunges the misdemeanor conviction. S.L. 2007-509 (S 301). The term “civil license revocation” is generally understood to refer to the immediate license revocation required by G.S. 20-16.5 when a person is charged with a DWI or other implied-consent offense. The General Assembly appears to have enacted the provision in response to an opinion by the North Carolina Attorney General that an expunction of a dismissal, under G.S. 15A-146, does not require DMV to expunge a civil license revocation. See Opinion Letter by North Carolina Attorney General to Mike Bryant, Driver License Section, N.C. Division of Motor Vehicles (June 13, 2001). The 2007 legislation amended G.S. 15A-146 to require DMV to expunge a civil license revocation as a result of a criminal charge that was dismissed or for which the defendant was acquitted if the court orders expunction of the criminal charge. The change to G.S. 15A-146 presented no difficulties because that statute clearly allows the court to order an expunction of a dismissal of a DWI; it therefore makes sense for the order to extend to other records resulting from the dismissed charge, such as a civil license revocation. The change to G.S. 15A-145, however, suggested the possibility that although G.S. 15A-145 generally bars expunction of a traffic violation, it made an exception for and allowed expunction of a misdemeanor DWI.

S.L. 2015-150 (H 273) resolved this ambiguity. It amended G.S. 15A-145 to provide that “[n]othing in this section shall be interpreted to allow the expunction of any offense involving impaired driving as defined in G.S. 20-4.01(24a).”

Whether a DWI conviction bars relief is a simpler question to address. Other than G.S. 15A-145.5, all of the expunction statutes that bar relief because of a prior misdemeanor conviction provide that a traffic violation is not a bar. The certificate of relief statute has the same wording. None of the statutes define traffic violation in a way that excludes misdemeanor DWI convictions. A misdemeanor DWI conviction therefore should not be a bar to relief under these provisions.

The same result applies to expunctions under G.S. 15A-145.5, although based on somewhat different language. For expunction of one misdemeanor, a person must not have another conviction except for a traffic violation. See G.S. 15A-145.5(c2)(6)a. As under other statutes with this language, a misdemeanor DWI conviction, being a traffic violation, does not bar expunction of one misdemeanor. For expunction of more than one misdemeanor conviction, a person must not have a conviction other than a traffic violation during the seven-year waiting period and must not have a felony or misdemeanor conviction that is an exception to the definition of a “nonviolent” offense in G.S. 15A-145.5(a). See G.S. 15A-145.5(c2)(4), (6)b. Because a misdemeanor DWI conviction is a traffic violation and is no longer included as an exception to the definition of a “nonviolent offense” (see G.S. 15A-145.5(a1)), it does not bar expunction of more than one misdemeanor conviction. Similarly, for expunction of up to three felony convictions, a person must not have a felony conviction other than the convictions to be expunged, a misdemeanor conviction other than a traffic violation during the five years before the filing of the petition, or a misdemeanor conviction that is an exception to the definition of a “nonviolent” offense. See G.S. 15A-145.5(c3)(4), (4a), (6). A DWI conviction does not run afoul of any of these requirements.

The answer depends on the offense and type and date of disposition. Convictions for felonies or misdemeanors subject to registration are not eligible for expunction, whether or not the person is currently required to register. Convictions for offenses committed before the law made them subject to registration may be subject to expunction. A dismissal or diversion (deferred prosecution or discharge and dismissal) is subject to expunction.

Felony and misdemeanor convictions. The only statutes that potentially could apply to felony convictions subject to sex offender registration are G.S. 15A-145.4, which allows expunction of felonies committed before age 18; G.S. 15A-145.5, which allows expunction of older felonies and misdemeanors; G.S. 15A-145.8A, which allows expunction of adult convictions of juveniles; and G.S. 15A-145.9, which allows expunction of convictions of human trafficking victims. All of these statutes expressly exclude offenses subject to registration, however, “whether or not the person is currently required to register.” Thus, the statutes bar expunctions both for people who are currently required to register and for people who have completed their registration requirements.

One statute, G.S. 15A-145, allowed expunction of a conviction of a misdemeanor subject to sex offender registration, such as misdemeanor sexual battery under G.S. 14-27.5A, if the offense was committed before age 18. The reason is that the statute contained no exclusion for offenses subject to sex offender registration. Effective for petitions filed on or after December 1, 2021, G.S. 15A-145 was amended to exclude offenses subject to registration, again “whether or not the person is currently required to register.” (If a person obtained an expunction before the law was changed, it may require removal of registration information and, if still in place, termination of registration obligations. For further information and authority, contact the author at rubin@sog.unc.edu.)

The statutes may not bar expunctions for people who were never required to register but were convicted of an offense that would require registration if committed now. In State v. J.C., 372 N.C. 203 (2019), the trial judge granted an expunction under G.S. 15A-145.5 of a 1987 conviction for indecent liberties, before the registration statutes took effect. The North Carolina Court of Appeals and Supreme Court upheld the order without addressing the merits, holding that the State did not have a statutory right of appeal. For similar reasons, if a person satisfies the other criteria for an expunction, he or she may be able to expunge a conviction of a sexual battery offense committed on or after December 1, 2003, when the General Assembly created the offense (S.L. 2003-252 (S 912)), and before December 1, 2005, when the General Assembly made sexual battery an “offense requiring registration” for offenses committed on or after that date. S.L. 2005-130 (H 1209). 

Other statutes use different language to indicate whether “pre-registration” offenses trigger consequences. Compare G.S. 14-415.4(a)((2)d. (disallowing restoration of firearm rights for an offense “for which the offender must register,” which indicates that the disqualification applies only if the person currently must register) with G.S. 15A-1345(b1) (providing that a probationer who is arrested for a probation violation and is determined to be a danger is not entitled to release pending a revocation hearing if he or she has been convicted of an offense “that would have required registration but for the effective date of the law establishing the Sex Offender and Public Protection Registration Program,” which indicates that the restriction applies to pre-registration offenses). 

If not expunged, a pre-registration offense counts as a prior offense in determining whether a person is a recidivist and subject to lifetime registration on conviction of a subsequent offense. See State v. Wooten, 194 N.C. App. 524 (2008). Effective for records expunged on or after July 1, 2018, an expunged conviction can be used to determine a person’s prior record level at sentencing and certain other purposes if the person is convicted of a subsequent offense. See G.S. 15A-151.5, discussed supra in Overview: Effect of Expunction (Use of Expunged Information). The statute does not allow use of an expunged conviction to establish that the person is a recidivist if convicted of a subsequent offense requiring registration.

G.S. 15A-145.4(a)(5), G.S. 15A-145.5(a)(4), and G.S. 15A-145.9(a)(1) bar expunction of convictions of some offenses of a sexual nature that are not subject to registration. Offenses that are not excluded from relief and are not subject to registration, such as crime against nature, are subject to expunction under these statutes if the person otherwise meets the criteria for expunction.

Dismissals and diversions. G.S. 15A-146 contains no restriction on the types of charges subject to expunction if dismissed. It therefore allows expunction of dismissals of charges that would require sex offender registration if they resulted in a conviction.

A person may obtain a deferred prosecution or discharge and dismissal for an offense subject to sex offender registration if it is a misdemeanor or Class H or I felony; the statutes contain no exclusion for such offenses. G.S. 15A-1341(a1), (a4). These dispositions should be subject to expunction as dismissals under G.S. 15A-146. See supra Expunctions of Dismissals and Similar Dispositions: Types of Dismissals. Neither a deferred prosecution nor a discharge and dismissal constitutes a final conviction; therefore, expunction of those dispositions creates no conflict with any registration obligations. See generally Walters v. Cooper, 226 N.C. App. 166 (2013), aff’d per curiam, 367 N.C. 117 (2013) (holding that PJC, not being a final conviction because the court has not entered judgment, does not trigger registration obligations). Decisions from other states requiring registration for similar dispositions are not applicable to North Carolina because their statutes specifically require registration. See State v. Perkins, 13 P.3d 344 (Idaho Ct. App. 2000) (requiring registration in case in which court withheld judgment and dismissed charges following a successful period of probation because Idaho statutes require registration for person adjudicated guilty, whether judgment is entered or withheld).

Wrongful registration information. If a person believes that he or she is wrongfully being required to register—for example, the person believes the offense is not one subject to registration—the person may file a declaratory relief action to terminate registration obligations. If the court grants declaratory relief and holds that the person is not required to register, the court may have the authority to order the expunction of erroneously obtained registration information. See supra Sex Offender Registration and Monitoring Obligations: General Considerations for Sex Offender Requirements.

No. The North Carolina statutes barring an expunction because of a prior expunction are worded in two ways, neither of which includes out-of-state expunctions.

One approach bars an expunction if a person has a prior expunction as shown by the confidential records of the North Carolina Administrative Office of the Courts (AOC). See G.S. 15A-145.4. The AOC’s confidential records contain expunctions under North Carolina law only, not expunctions from other states. See G.S. 15A-150(a) (listing expunctions clerks of court must report to AOC); G.S. 15A-151(a) (stating that confidential AOC record consists of expunctions identified in G.S. 15A-150).

The other approach bars an expunction if a person has received an expunction under specified North Carolina statutes. See G.S. 15A-145.2(c); G.S. 15A-145.3(c); G.S. 15A-145.5(c); G.S. 15A-146(a). These statutes do not list expunctions under other state laws as bars.

Because an adjudication of criminal contempt may be viewed as a conviction of a crime and therefore carry the same adverse collateral consequences, it may be subject to expunction. It would likely be treated as a misdemeanor because of its limited sentence length. G.S. 5A-12 (imposing sentence for contempt from 30 days to six months); see also G.S. 14-3 (treating misdemeanor without classification as Class 3 misdemeanor if sentence is 30 days or less and as Class 2 misdemeanor if sentence is more than 30 days and six months or less).

In contrast, an adjudication of criminal contempt is probably not a bar to relief. Although it may carry the adverse collateral consequences that follow from a conviction of a crime, the courts do not view it in the same light. See State v. Reaves, 142 N.C. App. 629 (2001) (holding that adjudication of criminal contempt is not a prior conviction for the purpose of sentencing in later case); Blue Jeans Corp. v. Amalgamated Clothing Workers of America, 275 N.C. 503, 508 (1969) (stating that adjudication of criminal contempt is sui generis—that is, one of a kind). If a person obtains an expunction of an adjudication of criminal contempt, the expunction would count as a bar under statutes barring an expunction if the person has a prior expunction.

A civil contempt order, not being a conviction, is probably not subject to expunction and also does not constitute a bar to an expunction of a criminal matter. See generally Little v. Bennington, 109 N.C. App. 482 (1993) (finding that trial court had no authority to order expunction of civil contempt order issued by clerk of court for failure to file account for estate property under G.S. 28A-25-4). For a discussion of the differences between criminal and civil contempt, see Reynolds v. Reynolds, 356 N.C. 287 (2002), adopting dissent in 147 N.C. App. 566, 577 (2001) (recognizing punitive purpose of criminal contempt). 

If a person obtains an expunction of a conviction or other proceeding in which the person was on probation, the expunction should cover any probation violations connected with the case. In other words, a person does not specifically request an expunction of the probation violation; rather, the person obtains an expunction of the entire proceeding, including any probation violations. See G.S. 15A-150(b) (requiring expunction of all entries made as a result of the charge or conviction ordered expunged); N.C. Administrative Office of the Courts, Expunction Guide for Clerks at 21 (Mar. 2020) (advising clerk that this result is required).

None of the relief statutes make a probation violation a bar to an expunction or other relief. Nor is a probation violation a conviction, so it does not disqualify a person from relief on that ground. Many of the statutes, however, require that the person show that he or she has been of “good moral character” for a period of time after the proceeding. See, e.g., G.S. 15A-145.4(e). A probation violation, depending on its basis, may bear on that question.

This discussion addresses situations in which a state agency disagrees with an order granting an expunction and requests reconsideration or review. It also discusses actions a petitioner may take to compel a state agency to comply with an order granting an expunction. Other parts of this guide discuss situations in which the petitioner contests an order of the court or seeks other relief. See supra Overview: Procedure to Obtain an Expunction (discussing subsequent petitions, modifications of orders, and appellate review).

The question here is whether the SBI may contest an order after the court grants it. Like other executive branch agencies, the SBI may not unilaterally refuse to comply with an order of a court. It may be able to contest an expunction order after its entry, however, and has done so in the cases discussed below. The procedure in such cases is not settled. If the SBI or other agency fails to comply with an expunction order and fails to ask the court to reconsider it, a person can file a petition for a writ of mandamus to compel compliance.

Reach of expunction order. Expunction orders apply broadly to state and local agencies. G.S. 15A-150(b) lists the agencies that must comply with an expunction order. The list includes the arresting agency; Division of Motor Vehicles (DMV); Department of Public Safety, which includes the SBI; and other government agencies identified by the petitioner in the petition for an expunction. Individual expunction statutes contain similar language.

An agency subject to an expunction order may not unilaterally refuse to comply with the order. Hamilton v. Freeman, 147 N.C. App. 195 (2001), announced the basic rule on compliance with court orders by executive agencies. In this class action suit, the plaintiffs alleged that the Department of Correction (DOC, now the Department of Adult Correction or DAC) had modified sentences imposed by the court in criminal cases if it determined that the sentences were unlawful. For example, DOC converted sentences ordered by the court to run concurrently into consecutive sentences if DOC determined that concurrent sentences were not permissible. The court held that DOC could not unilaterally refuse to implement a sentence ordered by the court, even if unlawful. By unilaterally altering court-ordered sentences, DOC “usurped the power of the judiciary, thereby violating separation of powers.” See also State v. Bowes, 159 N.C. App. 18 (2003) (holding that limited privilege granted by court was binding on DMV, even if contrary to law, and statute authorizing DMV to invalidate privilege violated separation of powers), vacated per curiam, 360 N.C. 55 (2005). [Because the Supreme Court did not specify its reasons for vacating the Court of Appeals’ decision in Bowes, the extent to which the General Assembly may grant an executive agency the power to override a court’s determination is unclear.]

Reconsideration of order. Generally, the local district attorney represents the State’s interest in expunction and other relief proceedings. Most of the relief statutes require that the district attorney be served with or be given notice of the petition before the court rules. Many also set a deadline for the district attorney to object. See, e.g., G.S. 15A-145(a) (giving district attorney 10 days to object after receiving notice of petition); G.S. 15A-145.4(c) (giving district attorney 30 days to object); see also G.S. 15A-173.4(a) (requiring that district attorney receive notice at least three weeks before hearing on petition for certificate of relief). Not all relief statutes specify that the district attorney receive notice. See G.S. 15A-146 (expunction of dismissals); G.S. 15A-145.2 (expunction of drug offenses by first offenders); G.S. 15A-145.3 (expunction of toxic vapors offenses by first offenders). Whether district attorneys receive notice of these petitions may vary with local practice.

Review of an order granting an expunction would appear to be limited if the district attorney receives notice and does not object or seek review. See generally In re Hutchinson, 218 N.C. App. 443, 445–46 (2012) (dismissing State’s appeal of order granting petition to terminate sex offender registration where State did not raise challenge at trial level; “a contention not raised and argued in the trial court may not be raised and argued for the first time on appeal”). In some instances, the SBI has written the judge after entry of an expunction order when it has concerns about the order’s validity, in effect asking the judge to reconsider the order. See generally In re Timberlake, 250 N.C. App. 80 (2016) (holding that agency letter did not give court jurisdiction to reconsider order terminating sex offender registration); Hamilton v. Freeman, 147 N.C. App. at 200 (trial court directed DOC to notify sentencing judge in writing within reasonable time if it believed that sentence was unlawful); G.S. 20-179.3(k) (statute requires DMV to notify court if it concludes that limited driving privilege is unlawful); John Rubin, When Agencies Disagree with Criminal Court Decisions, N.C. Crim. L., UNC Sch. of Gov’t Blog (Nov. 1, 2016) (discussing potential impact of Timberlake on various agency letters requesting reconsideration); Jamie Markham, DAC’s Auditing Authority, N.C. Crim. L., UNC Sch. of Gov’t Blog (Apr. 21, 2015) (discussing what are sometimes known as Hamilton v. Freeman letters by DAC in response to purportedly unlawful sentences); Meredith Smith, Clerks, Adoptions and Division Review (Part 1), On the Civil Side, UNC Sch. of Gov’t Blog (Feb. 4, 2015) (discussing appropriateness of letters by Division of Social Services of Department of Health and Human Services in response to adoption orders by clerks of court).

The procedure to follow and permissible grounds for an agency to request reconsideration are unclear. Expunctions are considered criminal proceedings. State v. J.C., 372 N.C. 203 (2019). The standards for setting aside civil judgments may be informative, however. See N.C. R. Civ. P. 60 (allowing party to make motion to set aside civil judgment for certain reasons only); Windham Distributing Co. v. Davis, 72 N.C. App. 179, 181–82 (1984) (holding that Rule 60 allows court in civil case to set aside judgment if void but not for mere errors of law).

The SBI, through the Attorney General’s Office, has obtained appellate review of expunction orders, sometimes well after their entry, by petitioning for a writ of certiorari. See, e.g., State v. Frazier, 206 N.C. App. 306 (2010) (Attorney General raised challenge initially in trial court five months after entry of order and, following denial of challenge, petitioned for writ of certiorari to review underlying expunction order); In re Robinson, 172 N.C. App. 272 (2005) (Attorney General petitioned for certiorari of trial court’s expunction order, without making initial motion in trial court, approximately 18 months after entry of order). Neither Robinson nor Frazier addresses the circumstances in which a writ of certiorari is appropriate, but implicitly the court found in each case that the circumstances justified consideration of the State’s petition. In Robinson, the trial court ordered the expunction of dismissals of six separate charges over a span of six years; the Court of Appeals reversed the order on the ground that the expunction statutes, as then written, did not allow expunction of multiple unrelated charges dismissed over a period of time. (The General Assembly thereafter amended G.S. 15A-146 to allow an expunction of multiple dismissals in a 12-month period; the statute now allows unlimited expunctions of dismissals regardless of when they occurred or whether they were related.) In Frazier, the trial court relied on the expunction statutes for gang offenses to order expunction of a felony conviction of accessory after the fact to murder, an offense not covered by the gang statutes; the Court of Appeals did not reach this issue because it found another error—that the gang statutes, enacted in 2008 and at the time of the petition effective for offenses committed thereafter, did not apply to the petitioner’s 1998 conviction. See also In re Spencer, 140 N.C. App. 776 (2000) (allowing State’s petition for writ of certiorari to review expunction of drug conviction for offense committed when person was older than statutory age limit). Other circumstances may be insufficient for a court to revisit an expunction order after a long delay. The dissenting judge in Robinson expressed concern about the impact on the petitioner of having a conviction reappear on his or her record after taking action in reliance on it having been expunged. 172 N.C. App. at 280.

The North Carolina Supreme Court, in State v. J.C., 372 N.C. 203 (2019), held that the State has no statutory right to appeal expunctions and dismissed the State’s appeal. The Court held that the State may seek review of an expunction order by writ of certiorari but observed that “an unjust outcome that would invoke certiorari review should rarely arise.” Id. at 210.

Enforcement of order. If an agency has not complied with an expunction order and has not sought reconsideration, a person may file a petition for writ of mandamus to compel compliance. In Frazier, the petitioner filed a motion in the trial court to enforce its previous expunction order, but a petition for writ of mandamus may be the more appropriate remedy because its purpose is to compel an entity to perform duties imposed by law. See generally Julie Ramseur Lewis & John Rubin, North Carolina Defender Manual, Vol. 2 Trial, § 35.7A, Mandamus (UNC School of Government, May 2020); see also State v. Bowes, 159 N.C. App. 18, 23 (2003) (dissent states that mandamus is the proper remedy to compel public officials to comply with ministerial duty imposed by law).

The statutes do not specifically say, but the General Assembly appears to have intended for the offense class at the time of conviction to control. This issue arises with G.S. 15A-145.4, which allows expunction of Class H and I felony convictions for offenses committed before age 18; G.S. 15A-145.5, which allows expunction of convictions of Class H and I felonies and Class 1, 2, or 3 misdemeanors; G.S. 15A-145.9, which allows expunctions of Class H and I felonies and any class of misdemeanor by human trafficking victims; and G.S. 15A-173.2, which allows a certificate of relief for convictions of Class G, H, and I felonies and any class of misdemeanor. Two main reasons support this conclusion.

First, the most natural reading of the statutes allowing relief for a conviction of a particular class of offense is to look at the offense class at the time of conviction. The reason is that the person’s conviction was for that class of offense. Second, when the General Assembly has wanted to depart from this approach and have the court look at the current offense class, it has expressly provided for that result. For the purpose of sentencing a person for a new offense, which depends in large part on a person’s prior record, “the classification of a prior offense is the classification assigned to that offense at the time the offense for which the offender is being sentenced is committed.” G.S. 15A-1340.14(c). None of the relief statutes contain this type of language. Its absence suggests that the General Assembly intended for the offense class of conviction to control.

North Carolina’s statutes permit a person to obtain more than one expunction in some circumstances. The statutes do not establish a general limit of one “lifetime” expunction. Rather, each statute contains its own requirements for obtaining an expunction, including whether a prior expunction bars a later expunction.

Some of the statutes on expunctions of convictions specify that a prior expunction of an adult conviction bars a later expunction of a conviction. See G.S. 15A-145.4(d)(7) (nonviolent felonies before age 18). Some statutes on expunctions of convictions contain no prior expunction bar. See G.S. 15A-145 (misdemeanors before age 18); G.S. 15A-145.1 (gang offenses); G.S. 15A-145.8A (adult convictions as juvenile); G.S. 15A-145.9 (convictions of human trafficking victims). Some make an expunction of a conviction under the particular statute a bar to a subsequent conviction under that statute or a subsection of that statute. See G.S. 15A-145.2 (drug possession and paraphernalia); G.S. 15A-145.3 (toxic vapors); G.S. 15A-145.6 (prostitution). Thus, in this last category of statutes, a person may obtain an expunction of a conviction under G.S. 15A-145.2(c), which covers drug possession and drug paraphernalia offenses, and obtain a later expunction of a conviction of a toxic vapor offense under G.S. 15A-145.3(c). The reverse is also true. The reason is that each of those subsections bars a later expunction if the person has received an expunction under that specific subsection but not if the person has received an expunction under another statute. See supra Expunctions of Drug-Related Offenses: Conviction of Controlled Substance, Drug Paraphernalia, and Toxic Vapor Offenses. G.S. 15A-145.5(c) likewise makes a prior expunction a bar only if the prior expunction was obtained under G.S. 15A-145.5 but adds further qualifications. A person who obtained an expunction of a misdemeanor conviction under G.S. 15A-145.5 may obtain an expunction of a felony conviction under that statute, and vice versa, but not if the prior expunction was obtained before the offense sought to be expunged.

A prior expunction of a juvenile matter, including an adjudication of delinquency, should not bar an expunction of an adult conviction in most instances. The reason is that most statutes on expunging adult convictions bar an expunction if the person has received an expunction under specific statutes involving adult convictions, not juvenile matters. See supra Expunctions of Delinquency Matters.

G.S. 15A-146 allows unlimited expunctions of dismissals and acquittals. See also G.S. 15A-147 (allowing expunction of dismissal on grounds of identity theft or mistaken identity without regard to prior expunctions or convictions). Similarly, most of the statutes on expunctions of convictions do not make a prior expunction of a dismissal a bar. But see G.S. 15A-145.4 (barring expunction of nonviolent felony committed before age 18 if AOC records show prior expunction); G.S. 15A-145.6 (barring expunction of prostitution offense if AOC records show prior expunction other than for prostitution).

A separate question is whether a person can expunge multiple offenses at the same time, such as offenses that are transactionally related or are resolved in the same proceeding. For the availability of such relief, consult the part of this guide for the particular type of expunction.

Yes. G.S. 15A-145 and G.S. 15A-145.5 allow an expunction of a misdemeanor conviction whether or not the person received a prior expunction of a dismissal under G.S. 15A-146. Likewise, G.S. 15A-146 allows an expunction of a dismissal whether or not the person has a prior misdemeanor or felony conviction or prior expunction. Therefore, a person can file for and obtain an expunction of both a misdemeanor conviction and dismissal at the same time. For example, if a person is charged with a felony and a misdemeanor, the felony is dismissed, and the person is convicted of the misdemeanor, the person should be able to petition for an expunction of the dismissed felony under G.S. 15A-146 and an expunction of the misdemeanor conviction under G.S. 15A-145 or G.S. 15A-145.5, assuming the person meets the other requirements for an expunction.

When a person is convicted of a lesser offense of the offense charged and is eligible to expunge the conviction under G.S. 15A-145 or G.S. 15A-145.5, the person may be able to petition to expunge both the greater charge and the conviction of the lesser charge under G.S. 15A-145 or G.S. 15A-145.5 without filing a separate petition under G.S. 15A-146 to expunge the greater charge. Support for this approach is provided by G.S. 15A-150(b), which requires that an agency receiving an expunction order “shall purge from its records all entries made as a result of the charge or conviction ordered to be expunged” (emphasis added). Support is also provided by the court’s decision in State v. Lebedev, ___ N.C. App. ___, 895 S.E.2d 455 (2023), which held that conviction of a lesser charge does not authorize expunction of the greater charge under G.S. 15A-146 if the greater charge is not expressly dismissed. Under this reasoning, expunction of a conviction of a lesser charge appears to authorize expunction of a greater charge that was not expressly dismissed because it accompanies the conviction and remains part of the case.

Yes. G.S. 15A-145.5 allows an expunction of a felony conviction whether or not the person received a prior expunction of a dismissal under G.S. 15A-146. Likewise, G.S. 15A-146 allows an expunction of a dismissal whether or not the person has a prior misdemeanor or felony conviction or has received a prior expunction of a conviction, including an expunction of a felony conviction. Therefore, a person can obtain an expunction of both a felony conviction and dismissal.

Before legislative changes enacted in 2020, a felony conviction barred an expunction under G.S. 15A-146. As a result, a person may have needed to petition for expunction of the felony conviction first and, once granted, petition for expunction of the dismissal. Such an approach was inefficient, particularly if the conviction and dismissal occurred as part of the same case. The clerk of court would have to remove the felony conviction from the court records and reconstruct the record with the dismissed charges, only to delete the dismissal later when the petition to expunge the dismissal was filed and granted.

Now that a felony conviction does not bar expunction of a dismissal under G.S. 15A-146, a person should be able to file for relief under both statutes at the same time. When a person is convicted of a lesser felony of the felony charged and is eligible to expunge the conviction under G.S. 15A-145.5, the person may be able to petition to expunge both the greater charge and the conviction of the lesser charge under G.S. 15A-145.5 without filing a separate petition under G.S. 15A-146 to expunge the greater charge. Support for this approach is provided by G.S. 15A-150(b), which requires that an agency receiving an expunction order “shall purge from its records all entries made as a result of the charge or conviction ordered to be expunged” (emphasis added). Support is also provided by the court’s decision in State v. Lebedev, ___ N.C. App. ___, 895 S.E.2d 455 (2023), which held that conviction of a lesser charge does not authorize expunction of the greater charge under G.S. 15A-146 if the greater charge is not expressly dismissed. Under this reasoning, expunction of a conviction of a lesser charge appears to authorize expunction of a greater charge that was not expressly dismissed because it accompanies the conviction and remains part of the case.