Resolving Old Cases and Expunging Others

Lady Liberty GavelThe holidays are a time to take stock: figure out how the last year has gone, and maybe think about taking care of an old legal issue, or start thinking about getting a new job.

We tend to see a lot of calls around the holidays from people who want to sort out an old traffic ticket or criminal case that was never properly resolved. Or from people looking for an expungement.

Here are some rules of thumb.

Old Criminal or Traffic Cases

If you’re now thinking about rectifying an old criminal case or traffic ticket that was never actually resolved, here are some things to think about.

First, depending on the case, you may not be required to come back to Wake County. However, in the event you don’t come back, you probably will need to plead guilty, although there’s a possibility of some better resolution depending on the original charge, the length of time that has passed, the reason you didn’t resolve the case originally, and your ability to show compliance with the circumstances that led to the offense.

For instance, if the offense was alcohol-related (but not a DWI), and you can show that you have completed alcohol-related substance abuse treatment, then it is possible for a more favorable outcome, depending on the facts of the case.

Note: The Wake County District Attorney will generally not simply dismiss an old DWI that was never properly resolved, no matter how old, and no matter the circumstances. Obviously there are rare exceptions, and you should talk to an attorney, but the District Attorney will essentially prevent the case from being reinstated until you agree to plead guilty. If you don’t agree to plead guilty, and the case remains in “VL” status, the North Carolina DMV will continue its hold on your driver license, and prevent you from getting a license in nearly all other states.

Expungements

While you may want to talk to an attorney to determine whether you are eligible for an expungement, some general rules of thumb are in order:

First, assault convictions are not expungeable. If you were convicted (whether by plea or by trial) of a crime whose element is an assault, you cannot have that case expunged in North Carolina.

Second, multiple convictions are (probably) not expungeable. North Carolina law requires that the arrest and conviction dates of all convictions that are otherwise expungeable, be the same in order for you to be eligible to expunge the conviction. This is somewhat complicated, so calling a lawyer may help.

Third, multiple expungements are generally not allowed. North Carolina has a one-expungement rule in general. Although there are some ways to get around this rule, if you’ve ever had an expungement before in the same category for which you currently seek an expungement, you are probably not eligible.

Other relief may be available, but that relief is a long-shot and expensive. You may be eligible for a Motion for Appropriate Relief, but these are generally costly in terms of legal fees, and long-shots.

NC Expungements: The Benefits of Clearing Your Criminal Record

Raleigh expungement lawyerIf you have been convicted of a misdemeanor or felony in North Carolina, you have probably already experienced some of the impacts that a criminal charge and conviction can have on your life. North Carolina has expungement laws that allow you to clear your criminal record, but they are limited in what they can and can’t accomplish. Nonetheless, any opportunity to clear your record is one that should be take, as this can have multiple positive effects on your life.

What a Conviction Does to You:

  1. It can prevent you from getting a good job;
  2. It can keep you from being allowed to carry a firearm;
  3. It can stop you from getting into certain schools and getting federal financial aid;
  4. It can keep you from adopting a child;
  5. It can be a source of embarrassment amongst family and friends.

Being granted an expungement can alleviate or eliminate all of the negative items listed above. As mentioned before, the expungement law is very specific. Here are the most important details you need to know:

  • You can only get one expungement in your lifetime in North Carolina.
  • Most expungements are reserved for first time offenders
  • If you have completed a deferral or diversion program (sometimes called a first offender’s program) and you haven’t received an expungement previously, you can pay $175 to file an expungement to have your record cleared.
  • If you were convicted of a non-violent misdemeanor or felony and you completed your sentence more than 15 years ago, you are eligible to file for an expungement with a $175 fee to the court.
    • Crimes with an element of assault cannot be expunged
    • Only Class H and I felonies and Class 1,2, and 3 misdemeanors can be expunged
    • Crimes involving methamphetamines or heroin cannot be expunged
    • Any crime with an element of selling or delivering cocaine cannot be expunged

There is a but more fine print to the expungement law, but those are the broad brushstrokes. If you at least meet the criteria listed above, then it is well worth investigating if you are fully eligible to have your record cleared. To take the next steps in the process, call a Raleigh expungement lawyer for a free consultation.

Overview of Expungement Law in North Carolina

This is not legal advice, but merely offered for educational purposes. North Carolina expungement laws are somewhat complicated and hard to navigate. Consult a lawyer about whether you are eligible for an expungement.

Expunction is the process by which you can remove arrests or convictions from your record. Until recently, North Carolina only permitted the expungement of certain crimes, based on age, and whether the person was an adult. In general, until recently, felonies could not be expunged, and criminal convictions of adults could not be expunged.

This made it very difficult for someone to clear a record, even if they made a youthful mistake that resulted in a felony, or in a misdemeanor conviction after the age of 18.

But recent changes have relaxed the requirements for a North Carolina expungement just a bit.

Let’s look at a few of the possibilities for expungement in North Carolina.

  1. Anyone age 16 or older is an “adult” for criminal purposes in North Carolina. However, if the offense date occurred prior to the age of 18 and is a misdemeanor offense, it may be expungeable under NCGS 15A-145 provided it is a first offense.

  2. Anyone may expunge a charge that has been dismissed or where there are findings of not-guilty by a jury or judge. However, a person may only be granted a single expungement in his or her lifetime in North Carolina. If the person has previously enjoyed an expungement in North Carolina, he may not apply for a new North Carolina expungement even if the case is dismissed or expunged. Note that sometimes defendants will give up the right to an expungement in order to enter a deferred prosecution agreement. This usually occurs in Domestic Violence cases, where the person has given up his right to an expungement in order to earn a dismissal. NCGS 15A-146.

  3. Anyone may expunge a non-violent misdemeanor conviction (Class 1 through 3 misdemeanors only) or non-violent felony conviction (Class H and I felonies only). Sex offenses, certain drug offenses, and offenses where violence is an element of the crime (including assaults) are excluded. Multiple offenses can be expunged as part of the single process so long as they were resolved in the same session of court and arise from the same transaction or set of transactions.

If the person was under the age of 18 at the time of the felony offense, the person must wait at least 4 years following the end of the active sentence, probation, or Post-Supervision Release phase. The person must also complete 100 hours of community service.

If the person was over the age of 18 at the time of the felony offense, the person must wait 15 years following the end of the active sentence, probation, or Post-Supervision Release phase.

To be eligible, individuals in either case need to have a clean criminal history from the date of the conviction that is being expunged, meaning no further convictions other than traffic violations. Convictions can be expunged 15 YEARS from conviction date or completion of any sentence, whichever is later.

To receive an expungement following a conviction, individuals must do the following:


  1. File a petition with the court where the person was convicted. If you were convicted in Wake County, you must file in Wake County.

  2. The petitioner must write an affidavit that he/she has been of good moral character since the date of conviction

  3. Affidavits from two people that are not related to the petitioner stating that they know the character and reputation of the individual as being good
    Completion of a form authorizing a background check to search for convictions and outstanding warrants

An affidavit from the petitioner stating that there are no outstanding restitution orders or civil judgments arising from the offense.

Once the petition for expungement has been received by the court, the District Attorney has 30 days within which to file any objections. If no objections are filed, the petition will be approved, allowing convictions to be removed from local and statewide databases. See NCGS 15A-145.4 and NCGS 15A-145.5 for more information on felony expunctions.

Note that the law is somewhat complicated, and having had a prior expungement under certain other provisions of NC law may exclude someone from filing a second petition. In addition, other expunctions may be available in gang-related offenses, and for underage drinking.

Can I go to jail for a misdemeanor in North Carolina?

We’ve handled hundreds of misdemeanors and the most common question is, can I go to jail for a misdemeanor? The answer is, as with everything in the law, it depends.

First, what is a misdemeanor? A misdemeanor in North Carolina is a low level crime. It is still serious in that a misdemeanor conviction is a public record, and a misdemeanor can affect certain other rights, including the right to keep and bear arms under the Second Amendment if the misdemeanor is a Domestic Violence related crime under federal law 18 USC 922.

It depends on your prior criminal history, and the charge involved. For most misdemeanors, if you have a clean criminal record (infractions don’t count), then you are not eligible for jail time at all. In other words, even if the judge thought you were the worst human being in the world, he or she could not put you in jail. The exception is class A1 misdemeanors, which are the most serious misdemeanors and include such crimes as Assault on a Female, Assault with a Deadly Weapon, and sexual battery.

So jail is probably not an option, and statistics indicate that the vast majority of people with little or no criminal history who are convicted of misdemeanors receive probationary sentences.

However, just because you are not eligible for jail, does not mean you shouldn’t take the misdemeanor charge seriously. Every day we get calls from people who were convicted of misdemeanors in years past, and who cannot find jobs because those convictions are discovered by potential employers.

While the new expungement law in North Carolina creates opportunities to have an old non-violent conviction removed from your record, you must wait 15 years from the time that the punishment phase ends, and have no new criminal convictions in that period.

That’s a long time. Hiring a good Raleigh criminal lawyer today, is probably worth the expense especially if that can make the difference between a conviction and a clean records.

New North Carolina Expungement Law Creates Opportunities

Expunction is the process by which you can remove arrests or convictions from your record. Until recently, North Carolina only permitted the expungement of certain crimes, based on age, and whether the person was an adult. In general, until recently, felonies could not be expunged, and criminal convictions of adults could not be expunged.

This made it very difficult for someone to clear a record, even if they made a youthful mistake that resulted in a felony, or in a misdemeanor conviction after the age of 18.

But now the law out of Raleigh is relaxing just a bit.

House Bill 1023, signed into law in July 2012, is set to go into effect later this year. When it does, it will open up the possibility for an expungement for people who have low level, non-violent felony or misdemeanor convictions. If you were convicted of a Class A1 misdemeanor or a Class A through G felony, the law does not help you. In addition, assault and sex-related convictions may not be expunged.

Talk to a Raleigh criminal lawyer about whether the law may help you.

Chapter 15A-145.5 of the North Carolina General Statutes applies to all felonies and misdemeanors EXCEPT:

  1. Class A through G felonies
  2. Class A1 misdemeanors
  3. Any offense requiring registration onto a registry, such as a sex offender registry
  4. Certain sex related or stalking offenses
  5. Offenses in which a commercial vehicle was used in the commission of the offense
  6. Offenses that involve methamphetamines, heroin, or possession with intent to sell or deliver cocaine
  7. Weapons violations
  8. Crimes related to contaminating food or drinks to render one mentally incapacitated or physically helpless

In addition, habitual offenders are not eligible for expungement under this new law.

If an individual was convicted of more than one non-violent felony or misdemeanor or court session, those convictions will be treated as one conviction and will be eligible for expungement. However, multiple convictions occurring as a result of court settings at different times are not all eligible for expungement.

To be eligible, individuals need to have a clean criminal history from the date of the conviction that is being expunged, meaning no further convictions other than traffic violations. Convictions can be expunged 15 YEARS from conviction date or completion of any sentence, whichever is later. For example, if an individual was convicted of felony larceny on June 1 , 1997 and was placed on 1 year of supervised probation, they would not yet be eligible for expungement until the 1 year had passed from the last day of probation.

To receive an expungement, individuals must do the following:


  1. File a petition with the court where the person was convicted. If you were convicted in Wake County, you must file in Wake County.
  2. The petitioner must write an affidavit that he/she has been of good moral character since the date of conviction
  3. Affidavits from two people that are not related to the petitioner stating that they know the character and reputation of the individual as being good
  4. Completion of a form authorizing a background check to search for convictions and outstanding warrants
  5. An affidavit from the petitioner stating that there are no outstanding restitution orders or civil judgements

Once the petition for expungement has been received by the court, the District Attorney has 30 days within which to file any objections. If no objections are filed, the petition will be approved, allowing convictions to be removed from local and state-wide databases.

The passage of this bill is a long awaited blessing for many North Carolinians that have been waiting a very long time for a clean slate. To learn more about this new opportunity for expungement and for help with your petition, contact a North Carolina Expungement Lawyer at The Chetson Firm today!

Note that the law is somewhat complicated, and having had a prior expungement under certain other provisions of NC law may exclude someone from filing a second petition.

Expungement Law Grants (Some) Convicted Felons Relief

How many people in North Carolina have been convicted of a single felony, and nothing more? How many people were convicted of a low level drug possession crime or low level larceny, and have otherwise maintained a spotless record?

We’re about to find out, thanks to a new bill signed into law by Governor Bev Perdue earlier this month.

The expands the expungement opportunities available to North Carolinians. North Carolina is notoriously stingy with its expungements. First, generally, you are only permitted one expungement in your life – although there may be certain exceptions.

Second, for the most part, you must either be convicted for an offense that occurred before your 18th birthday, or found not guilty or had the charge voluntarily dismissed.

Third, in certain cases, including domestic violence related cases, the DA may require as an express condition of your deferral agreement that you not ever request an expungement.

The new law expands North Carolina’s expungement laws by allowing a person convicted of a low level, non-violent felony to apply for an expungement in three conditions:

  1. More than 15 years pass since the end of the punishment, or probationary period.
  2. The person not have had any other criminal convictions.
  3. The person show good moral character.

The process will not be a slow one. Already, the state’s Administrative Office of the Courts and local county clerks have been overwhelmed with the current volume of expungements under existing law. In some cases, it can take 6 to 10 months for an expungement to be returned.

Expungements for Low Level North Carolina Felonies

The North Carolina General Assembly has passed a measure – now headed to Governor Perdue’s desk – that would allow certain individuals to apply for and be granted expungements in cases where they may have received a low level felony earlier in their lives.

The new expungement bill, if signed into law, will allow individuals convicted of a single Class H or Class I felony – Felony Larceny, Felony PWISD, Felony Possession of Cocaine, Felony Embezzlement (under $100,000) among other North Carolina crimes – to petition a court for an expungement after 15 years have passed since the end of any imposed sentence and upon a showing of good character.

I would expect, assuming the law goes into effect at the end of 2012, that there will be a large number of people applying.

Note that this law does not apply to cases involving multiple felony convictions, or even felony convictions followed by misdemeanor convictions. A court will also need proof of your good character, so even if you’ve never been convicted again of a crime, a person who has been subsequently charged may find it hard to convince a judge to permit an expungement.

A bill was signed into law last year that allowed non-violent offenders who were under the age of 18 at the time of the crime to apply for an expungement. That was a good first step.

Also enacted last year was something called a Certificate of Relief. The Certificate of Relief – N.C.G.S. 15A-173.1 – allows people convicted of a Class G, Class H, or Class I felony to apply for a special determination that relieves them of certain kinds of “collateral” sanctions imposed as a consequence of the felony conviction.

A collateral sanction is a sanction that is imposed not by virtue of the criminal judgment, but by some other legislative requirement. The most common kind of collateral sanction is a licensing sanction that forbids someone to work in a certain field after the person has been convicted of a felony. Talk to a Raleigh criminal attorney about whether you are eligible for a Certificate of Relief, or whether the Certificate of Relief will help you do what you want to do with your life. Certain collateral consequences, including immigration consequences, are not resolved by a Certificate of Relief.

North Carolina Expungements

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.

How can I get a misdemeanor larceny off my record?

In North Carolina, you can only remove a misdemeanor conviction for larceny from your record if the offense was committed prior to your 18th birthday. If you were convicted of the misdemeanor larceny, and were older than 18 years at the time of the offense, then you can apply for an expungement, but must wait 15 years and have no intervening criminal convictions.

If the charge was dismissed, then you can have it removed through expunction regardless of your age, understanding that you only get one expunction in your life.

In certain circumstances, you can file a Motion for Appropriate Relief to re-open a closed criminal case to try to get it dismissed. This requires a very skilled and knowledgeable Raleigh criminal lawyer.

Criminal Background Checks in North Carolina

Are you interested in checking the criminal background of someone you’re about to hire? Or do you have concerns about someone who works at your home?  Or someone who babysits your children?

In North Carolina, criminal convictions are public records.  While there may be laws that prevent you from using that information for certain purposes – for instance, you can’t harass someone because you’ve found out they have a criminal record – citizens have a right to ask for criminal background checks.

One easy online database is the North Carolina Department of Corrections’ (DOC) Offender Search.  This is an online database of both active (currently serving sentences) and inactive (people who have served and been released) individuals who have been convicted of crimes and processed by the DOC.  The search is free and takes a few minutes of your time.

One other way of checking criminal records is a bit more complicated, but still cheap and easy. You can visit your local courthouse (in Wake County the courthouse is at 316 S. Fayetteville Street in Raleigh) where you can go to the clerk’s office and request a background check.  It’ll cost you $15.

If you don’t have time to go to the courthouse, you can print out this form (Adobe PDF) and mail it in with a $15 certified or cashier’s check (no personal checks) and the background check will be mailed to you.

There are a lot of services on the web that claim to allow you to do a background check, and maybe they work, but there’s no need to pay $50 or $100 to do a check when you can do it the easy and simple way through your courthouse clerk’s office.

Finally, you can do a search of all registered sex offenders in the state by visiting the NC Sex Offender Search website.

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