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Expungements in 2021

New Year is a time to clean up old messes, including old criminal messes that you’d best leave forgotten.  However, it’s a good time of the year to consider whether you might be eligible for an expungement.

Expungements are not available for federal crimes – even if you are found not guilty, your record will always indicate the fact that you were charges or arrested for an allegation.

But expungements are available for North Carolina state charges, depending on the type of crime and on the manner in which it was resolved.

What is an Expungement?

An expungement is a request to the court system to have the record of the fact that you were arrested or charged with a crime wiped (almost completely) from your record.  Once the expungement has been granted, a notice will go out to the DMV and to local police agencies to erase from their arrest records the fact that you were charged, cited, or arrested for a crime.

An expungement is not a complete erasure of an arrest, since the North Carolina Administrative Office of the Courts will keep a record of the expungement in its private files. As a consequence, if you’re applying for a particularly sensitive job and the question asks you whether you’ve ever had a charged expunged, you should answer truthfully because authorities, with enough digging, can find out whether in fact you are telling the truth.

Can I Seal My Record?

North Carolina does not seal adult records.  Juvenile records – that is, records from before the age of 16 – are sealed, and will remain sealed unless other wise opened by a court.

The only way to remove an arrest record in North Carolina is through an expunction.  Other states may have sealing provisions, but North Carolina does not.

Can I Seal a Federal Record?

Except in certain misdemeanor drug cases, there is no federal expungement provision and federal courts have no inherent authority to seal or expunge records.  See, e.g., United States v. Jane Doe, 833 F.3d 192 (2d Cir. 2016); United States v. Crowell, 374 F.3d 790 (9th 2004). Very rarely, courts have agreed to expunge an arrest record upon a showing of need where the government did not object.

What Records Can Be Expunged?

First, many cases that were dismissed or where a jury found a person “not guilty” can be expunged.  Whether an expungement is available will depend on whatever agreement resulted in the disposition.  If the person – as part of a deferred prosecution agreement – agreed to give up the right to expungement, then – assuming the District Attorney hasn’t changed her position – the case cannot be expunged.

In order to determine whether such a case can be expunged, consult with a lawyer.

Certain convictions may be expunged, but generally require that crime of conviction is non-violent, is generally a low level offense, does not involve a sex offense, and does not involve abuse of a child. In these cases, an expungement may be available, but a waiting period of five years, beginning from the end of the punishment phase, is required before the expungement can be filed or granted.

Other restrictions may be imposed.

Driving While Impaired offenses can never be expunged if the charged offense resulted in a conviction.  Dismissed or “not guilty” DWIs may be expunged.

Is a Fee Owed to the Court?

A fee may be owed to the court to process the expungement, particularly in cases where the case-to-be-expunged was dismissed as part of a deferred prosecution agreement or other conditional discharge program.

Otherwise, the only fee owed would be to an attorney to review and process the expungement request.

How Long Will an Expungement Take?

The court system generally takes around eight months to process an expungement request.



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