A criminal record can serve as a significant barrier to gainful or better employment, housing security, guardianship of your children, interactions with the police, and other aspects of living a normal, dignified life. Unfortunately, even if your criminal charge is old or your case was dismissed, those charges are likely still on your criminal record and may still be affecting your life. We get a lot of questions about expunctions, and there’s a lot of misinformation and misunderstanding about who’s eligible and how this process works. So here’s a guide that explains the expunction process in North Carolina because none of us should be permanently defined or limited by our past.

What is an expunction?

An expunction (also referred to as expungement) is the legal process through which a criminal charge, and in some circumstances even a conviction, is erased from your criminal record.  An order granting a petition for an expunction has two basic effects: 1) deletion of records about the criminal case and 2) restoring the petitioner to the status held before the proceedings occurred. 

How can I get an expunction?

While getting an expunction would be beneficial for many, only a limited number of criminal charges are eligible to be erased, and the process to file a petition can be challenging. The eligibility criteria for getting an expunction in North Carolina can be grouped into the following categories:

• A first-time conviction of a nonviolent offense (including drug related offenses);

• A first-time conviction of select offenses committed as a juvenile; and

• A charge that was dismissed, disposed as “not guilty,” or otherwise did not result in a conviction.

Most of the expunctions in North Carolina are of dismissals, including acquittals -- in other words, cases that end without a conviction and result in non-conviction records.  Over 10,000 expunctions of dismissals are ordered every year.

WHO CAN’T GET AN EXPUNCTION?

1.5 million North Carolinians have a criminal record, but most will not qualify for an expunction. Only a limited number of criminal convictions are eligible for an expunction (unlike dismissals and acquittals) . In 2016, of the nearly 12,500 orders granting an expunction, only around 800 were for criminal convictions. 

It is also more difficult, and sometimes impossible, to get an expunction for a criminal conviction if you have one or more prior charges or convictions. Generally, relief is unavailable if a person has a prior felony or misdemeanor conviction (other than for a traffic offense). That also means if you’ve had recent charges or convictions on your record, you likely will not be eligible to have an old charge erased.

The following convictions are not eligible for expunction:

• All felonies other than class H and class I felonies;

• Breaking and entering a building;

• An offense containing assault as an element;

• An offense involving methamphetamine, heroin, and in some circumstances cocaine; or

• An impaired driving offense (DWI).

IS MY RECORD CLEARED AUTOMATICALLY IF THE CHARGE IS DISMISSED?

No expunctions are automatic in North Carolina, including in dismissals and low-level misdemeanors.  This means that a petition for relief (expunction) must be filed with the court. 

WHAT IS THE EXPUNCTION PROCESS?

To file a petition, a petitioner must first obtain an accurate and complete copy of his or her criminal record, obtain a petition form, and then file the petition form in the same county as the corresponding charge or conviction.  The NC State Bureau of Investigation (SBI) and FBI then perform state and federal background checks before returning the petition form and background checks to the Clerk of Courts office.  This process can take between two to three months.  Once a petition is returned to the Clerk of Courts office, the process varies widely by county and by type of expunction.  The best way to track the progress of the expunction process is to communicate with the Clerk of Courts office.  The whole process from start to finish typically takes from nine to twelve months.  Additionally, the cost of filing a petition for an expunction is $175 for most types of petitions.  This cost can prove to be a prohibitive barrier to many pursuing a clean record. 

What HAPPENS IF I DON’T GET AN expunction? 

Collateral consequences of having a criminal record may include ineligibility for a driver’s license or professional license, loss of the right to possess a firearm, loss of the right to vote (for felony convictions), difficulty in finding work, difficulty in finding housing, and other disabilities and qualifications.  Thousands of North Carolina residents are faced with such barriers--many of whom cannot afford legal representation that could assist them in expunging criminal records.  Often, the collateral consequences of having a criminal record exacerbate preexisting class disparities.  For example, those who live in low-income households face worse consequences than those in wealthier households who have been charged with similar offenses.  These disparities also cut across racial lines, disproportionately affecting people of color. 

ARE THERE PROGRAMS THAT PROVIDE EXPUNCTION HELP AND ASSISTANCE?

Several organizations and communities have made an effort to ameliorate the collateral effects of criminal convictions, including Legal Aid of North Carolina (LANC) and local government initiatives like the Durham Expunction and Restoration (DEAR) program.  LANC and DEAR offer pro bono legal assistance and other resources to support the restoration of rights to individuals.  DEAR in particular has targeted relief towards reinstating lost driver’s licenses, a common barrier that those with criminal records face in reintegrating as productive members of the community. 

Prior to the inception of the DEAR Program, there was not a systemic mechanism in place within the court system to refer people to this type of legal relief in North Carolina. Historically, parties typically learned of eligibility for an expunction or a certificate of relief months after the moment of eligibility, long after the negative impact of a criminal record affected their employment, housing, and educational opportunities. These collateral consequences, which often extend beyond the individual to their family and their communities, can be avoided with the legal relief DEAR aims to provide. 

DEAR also operates an Expunction Program, which identifies individuals eligible for expunctions at the disposition of their case and provides them with timely legal relief through referral to a coordinated network of free legal providers.  This network aids those with lingering criminal charges by providing assistance filing expunction petitions. 

While other counties also provide assistance for those with license suspensions, Durham’s model—a diverse collaboration between local government, the courts, nonprofits, and local law schools—offers relief on an unprecedented scale.  By early March 2020, DEAR had dismissed more than 70,000 cases (most for traffic charges tied to license suspensions), waived more than $200,000 in unpaid traffic fines and court fees (on average thirteen years old) for more than 1,200 people, and helped more than 120 others start the process of getting their criminal records expunged.

THE NEED FOR EXPUNCTION REFORM IN NORTH CAROLINA.

In their current state, North Carolina’s expunction laws are onerous, costly, time-consuming, and reinforce class and racial disparities.  The expunction scheme is substantively and procedurally complicated, which all but requires professional legal assistance to obtain relief.  Prior conviction bans on expunctions and categorical bans for specific types of offenses, regardless of their classification, make rehabilitating from prior criminal activity an uphill battle.  For example, a person may not obtain an expunction of a conviction of breaking and entering a building; an offense containing assault as an element; an offense involving methamphetamine, heroin, and in some circumstances cocaine; or an impaired driving offense. Relief is also unavailable if a person has a prior felony or misdemeanor conviction (other than for a traffic offense).  Despite the reality that actions have consequences, current legislation does not adequately acknowledge the disparate effects on different populations and the lasting effects of collateral consequences on individuals who have been living law abiding lives. 

Initiatives like DEAR present a model for statewide reform that acknowledges and remedies both the direct and collateral consequences of having a criminal record. Making legal services easier and safer for residents to access, faster for courts to administer, and more efficient for pro bono attorneys to provide is a promising first step. Notably, DEAR is not doing anything not already allowed under state law, which highlights how current legislative reform alone is not sufficient for relieving the deleterious effects of having a criminal record.

One broad framework for the state legislature to consider is that a justice system that disproportionately targets low-income people and communities of color should bear responsibility for correcting those disparities.

the demand for expunction reform is growing.

In late 2019, the North Carolina Senate passed a bipartisan bill (Senate Bill 562) that calls for the automatic expungement of dismissals and not-guilty verdicts for adults and juveniles and expands the list of crimes that can be expunged to include most H and I felonies and almost all misdemeanor convictions for individuals who were under the age of 18 when they were charged. The expansion excludes sex offenses and DWIs.  Although COVID-19 has delayed hearings in the House, the bill has broad bipartisanship support.  Countering decades of tough-on-crime legislation, North Carolina is among a growing number of states making it easier to wipe records clean.

Senate Bill 562, “The Second Chance Act”, gives North Carolina the opportunity to move towards a more efficient expunction scheme by introducing automatic expunctions for dismissals and not guilty verdicts.  North Carolina could join other states in using automatic expunctions to provide a clean slate for law abiding citizens who nonetheless suffer the consequences of a criminal record. 

The bipartisan Clean Slate Campaign has advocated for record-clearing laws in other states. In the past few years, Illinois, Kentucky, New Mexico, Virginia, and West Virginia enacted laws easing barriers to expunction.

In June 2018, Pennsylvania was the first state to pass a law that automatically seals arrests for people not convicted.  The law also expands the list of misdemeanors that can be sealed.  Later that year, Nebraska reformed the process of sealing juvenile records, allowing juvenile convictions to be automatically sealed upon satisfactory completion of probation, supervision, or other treatment or rehabilitation program.

New Jersey took noticeable action with a 2019 bill.   The new law adds a “clean slate” provision, allowing all qualifying criminal records to be automatically cleared after 10 years with no further convictions.  Additionally, low-level marijuana convictions (under 1oz) must now be sealed immediately upon disposition.  To make expunctions more accessible, New Jersey has begun rolling out an e-filing system where individuals can file the petition online with no filing fee.

HOW WE CAN HELP.

Navigating the expunction process can be difficult and stressful. If you have any questions about what this process entails or if you would like assistance with getting started, please visit us at one of our free legal advice events (schedule here) or contact us.