The gold standard in the resolution of a criminal case is an expungement, which involves a removal of the record of the arrest (or conviction, in certain cases) from most of the state’s files, including public records. Article 5 of Chapter 15A of the North Carolina General Statutes governs expungements, and is quite complicated.
N.C.G.S. 15A-145 governs the expunction for first-time offenders under age 18 and for certain other misdemeanors, including the expungement of a misdemeanor conviction for larceny after a 15 year waiting period.
N.C.G.S. 15A-146 governs the expunction in cases where charges have been dismissed or the person has been found not guilty, and no previous expunction has been granted under any other statute. In addition, a person may have the fact of a civil revocation (in DWI cases) removed from the person’s criminal and driving record if the person’s DWI was dismissed or upon a finding of not guilty if otherwise eligible for an expungement.
After the expungement is granted, a person can truthfully answer on a job application, for instance, that he has never been arrested or convicted of a crime (assuming the person has not gotten into additional trouble).
There are a couple of caveats to keep in mind, provided you are even eligible for an expungement.
- Expungements can take a long time to be processed – The Administrative Office of the Courts, among other entities, processes expungements in North Carolina. With budget cuts, the state has had to cut back on the number of people who review and process expungements. Criminal lawyers have reported that expungements that used to take 4 to 6 months are taking much longer – 8 to 10 months or longer. Consequently, you should expect that your expungement may take up to a year (or longer!) to process. During this time, the expungement enters something of a black box, meaning that it’s difficult, if not impossible, to discover the exact status of the expungement.
- You only get one expungement per lifetime – Current North Carolina law permits you just one expungement during your lifetime, so use it wisely. For instance, it may not be wise to use an expungement for a Second Degree Trespassing case (a Class 3 misdemeanor) since if you were to later be charged with a more serious charge such as a DWI, the expungement of the Second Degree Trespassing would preclude you from earning an expungement for a dismissed or not-guilty DWI.
- An expungement does not force private entities from removing a record of arrest – If you’ve been arrested, you may find your face on WRAL.com’s website or one of a number of private websites that tracks arrestees, or in the pages of The Slammer. While you might be offended by your name, photograph, and arrest details being featured in one of these more or less reputable places, your expungement does not entitle you to demand that your name and photograph be removed. You may politely email the website or publisher and request that you be removed. Some of the less reputable sites charge a fee for removal of your record. Whether you choose to do this is up to you.
- Removal from Google or other Search Engines – Along those lines, an expungement does not require Google, Bing, Yahoo or any other website or search engine to remove your name from its records. It’s unlikely for Google to respond to an individual request, however you can certainly try. I recommend being polite. You might choose to try to build up positive stories about you on the web (by creating webpages that enhance your online reputation) to push down the unwanted or unsavory search results. This is the basic strategy used by services such as ReputationDefender.com.
- Background Search Services – These services download arrest records periodically from North Carolina’s computer system ACIS and are supposed to refresh their results. Still, private background services may inadvertantly retain a record of your arrest after the matter has been expunged in North Carolina’s system. Consequently, do not be shocked if you apply for a new job and your employer discovers that you were arrested even though you and your lawyer believed the matter was expunged. North Carolina is a right-to-work state. Employers have wide discretion in choosing who to hire, and so long as they do not discriminate against a protected class, you have virtually no recourse if they find out you’ve been arrested in the past, even if that information should’ve been expunged.
- Top Secret Background Checks – If you’ve had a criminal arrest and are now applying for a position in law enforcement, security, or national security, you may be required to report all criminal matters, even if they’ve been expunged. In addition, if you are applying to be a member of a Bar (to be a lawyer) or if you are applying to be a medical doctor, you may be required to reveal any arrest, even if it has been expunged. Some of these applications are exhaustive, and it may be possible for an agency to discover you were arrested because…
- There will always be a record of your arrest – Even if your matter has been expunged in North Carolina, North Carolina will keep a record of your arrest and expungement in a closed file held by the Administrative Office of the Courts. That’s because North Carolina only permits one expungement, and so the AOC is required to keep evidence of all expungements to ensure that a person only gets one in his lifetime. Since there is always a possibility that those records may become public – government is never obligated not to reveal them – there is always the chance, even if the matter has been expunged, that it pops up years latter.
While an expungement is a the so-called “gold standard” in terms of a result, an expungement may not be possible in many cases (especially where there’s been a conviction for an offense that occurred after the age of 18) and the expungement itself is not a guarantee that no one will ever find out about the arrest and criminal record.