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Giving a Second Chance: New Rules for Clearing Criminal Records

A criminal record can cause significant problems in obtaining employment, loans, housing, owning a gun, and many other critical benefits afforded to the general public—not something most teenagers are thinking about before they commit a petty crime. Colleges and universities can reject your application based on court records. What’s worse, anyone with a phone or computer is able to access this information which can seriously affect personal relationships and social opportunities.

Thanks to NC Senate Bill 445 first-time, non-violent offenders are now able to reduce the wait time for criminal record expungement. In North Carolina, an expunction is the destruction of a criminal record by court order. This process restores the individual, in the view of the law, to the status he or she occupied before the criminal record existed. Most often, when someone is granted an expunction, he or she may truthfully and accurately deny or refuse to acknowledge the criminal incident ever occurred.

“Criminal justice shouldn’t end at incarceration. It should end at restoration,” Governor Roy Cooper said at the bill’s signing. “We want North Carolinians who have corrected their mistakes to go on to live purposeful, productive lives.”

Qualifications for Expunction

The chances to clear a record in our state is pretty rare, but criminal records eligible for expunction are generally limited to the following three categories:

  • A first-time, non-violent offense.
  • A first-time offense committed under age 18-22.
  • A charge that was dismissed or disposed “not guilty.”

The key factors to determine eligibility for expunction are:

  • What was the disposition of the offense (guilty, not guilty, dismissed, etc.)?
  • How old was the person at the time of the offense (under 18 or 22)?
  • How do you classify the offense (violent versus non-violent, controlled substance, etc.)?
  • Any previous or subsequent convictions that would disqualify this person?
  • Has the relevant waiting period been satisfied?

Senate Bill 445 made a few key changes to the expunction process and expunction eligibility. Two big differences now in effect: The wait periods for expunction of a non-violent misdemeanor and/or felony has been reduced from 15 years to 5 and 10 years, respectively. A person can now expunge multiple dismissed charges and charges disposed “not guilty.” As long as the person has not been convicted of a felony, they are eligible to expunge all such charges.

How the Process Works

A prospective petitioner or his or her attorney has to first determine the specific type of expunction desired since each type has a different form required. A petition for expunction must be filed in the county in which the charge or conviction for which the petitioner is seeking expunction occurred. Each county has particular petition procedures that can vary widely. The process can be confusing and complicated to those not familiar with the system.

To determine exactly how the petition should be filed, it’s best that one of our attorneys contact the appropriate deputy clerk of court. He or she will confirm what forms must be completed and what procedures must be followed to begin the process of expunging a record.

If an order for expunction is granted, the clerk of court erases the Automated Criminal Infractions System (ACIS) entry and then delivers a certified copy of the order to the NC Administrative Office of the Courts. Certified copies of the order are also delivered to the identified arresting agencies, the sheriff, the Division of Motor Vehicles (DMV), and the Department of Public Safety, which are then expected to delete the records from their respective databases. Our attorneys will follow-up with specific agencies to ensure the order has been enforced and the record truly expunged. The Department of Public Safety also forwards the expunction order to the Federal Bureau of Investigation (FBI).

Is the Record Really “Gone?”

When a criminal record is expunged, the record is erased from the records of the court as well as any other state agencies (including the arresting agency). The Administrative Office of the Courts (AOC) keeps a single file of all orders that is only accessible in very limited circumstances. Private companies that have contracted with AOC to purchase the information are also required to destroy any expunged records. Companies that don’t comply could be liable for damages.

Even with all these requirements in place, some records sold or transferred to other private companies so far down the line might never be destroyed. Unfortunately, there is a slight chance that an expunged record may appear on a background check at some point. If this happens, the petitioner can—lawfully—deny the charge or conviction ever occurred. In some cases, the issue can be negated simply by explaining the criminal record was expunged by order of the court.

These new provisions to North Carolina law allow an opportunity for individuals who paid their debts to society and have proven they can stay out of trouble with the law clear their criminal records and begin anew.

As the Governor remarked, “We don’t want young people to be held back for life because of one bad decision. We want them and their families to work with our juvenile justice system so we can get them on the right path.”

GreeneWilson understands that children are not in a position to effectively articulate their needs, face an intimidating juvenile justice system, or create strategic solutions to their problems—legal or otherwise. Let us help you navigate the sometimes-confusing juvenile legal process. For more information or to schedule a consultation, please contact GreeneWilson Attorneys at Law by calling (252) 634-9400 or visiting www.greenewilson.com.

(Sources: NC Second Chance Alliance; North Carolina Justice Center; North Carolina Office of the Governor; The News & Observer; Carolina Justice Policy Center; 2018 Summary of NC Expunctions; and Council for Children’s Rights.)

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