GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2013

H                                                                                                                                                   D

HOUSE DRH20173-LH-239  (05/16)

 

 

 

Short Title:        Amend Expunction Laws.		(Public)
Sponsors:	Representatives Harrison and Adams (Primary Sponsors).
Referred to:

 

A BILL TO BE ENTITLED

AN ACT to amend the expunction laws to shorten the waiting period required to obtain some expunctions, to make some expunctions more available for certain persons dedicated to moving beyond their criminal records, and to appropriate funds to the department of justice to assist with the additional costs of criminal record checks.

The General Assembly of North Carolina enacts:

SECTION 1.  G.S 15A‑145.5(c) reads as rewritten:

"(c)       A person may file a petition, in the court where the person was convicted, for expunction of a nonviolent misdemeanor or nonviolent felony conviction from the person's criminal record if the person has no other misdemeanor or felony convictions, other than a traffic violation. The A petition for expunction of a nonviolent felony shall not be filed earlier than 15 years than (i) 10 years after the date of the conviction or when conviction or (ii) the completion of any active sentence, period of probation, and post‑release supervision has been served, whichever occurs later. A petition for expunction of a nonviolent misdemeanor shall not be filed earlier than (i) five years after the date of a conviction or (ii) the completion of any active sentence, period of probation, and post‑release supervision has been served, whichever occurs later. The petition shall contain, but not be limited to, the following:

(1)        An affidavit by the petitioner that the petitioner has been of good moral character since the date of conviction for the nonviolent misdemeanor or nonviolent felony and has not been convicted of any other felony or misdemeanor, other than a traffic violation, under the laws of the United States or the laws of this State or any other state.

(2)        Verified affidavits of two persons who are not related to the petitioner or to each other by blood or marriage, that they know the character and reputation of the petitioner in the community in which the petitioner lives and that the petitioner's character and reputation are good.

(3)        A statement that the petition is a motion in the cause in the case wherein the petitioner was convicted.

(4)        An application on a form approved by the Administrative Office of the Courts requesting and authorizing a name‑based State and national criminal history record check by the Department of Justice using any information required by the Administrative Office of the Courts to identify the individual, a search by the Department of Justice for any outstanding warrants on pending criminal cases, and a search of the confidential record of expunctions maintained by the Administrative Office of the Courts. The application shall be forwarded to the Department of Justice and to the Administrative Office of the Courts, which shall conduct the searches and report their findings to the court.

(5)        An affidavit by the petitioner that no restitution orders or civil judgments representing amounts ordered for restitution entered against the petitioner are outstanding.

Upon filing of the petition, the petition shall be served upon the district attorney of the court wherein the case was tried resulting in conviction. The district attorney shall have 30 days thereafter in which to file any objection thereto and shall be duly notified as to the date of the hearing of the petition. Upon good cause shown, the court may grant the district attorney an additional 30 days to file objection to the petition. The district attorney shall make his or her best efforts to contact the victim, if any, to notify the victim of the request for expunction prior to the date of the hearing.

The presiding judge is authorized to call upon a probation officer for any additional investigation or verification of the petitioner's conduct since the conviction. The court shall review any other information the court deems relevant, including, but not limited to, affidavits or other testimony provided by law enforcement officers, district attorneys, and victims of crimes committed by the petitioner.

If the court, after hearing, finds that The court may order an expunction and that the person be restored in the contemplation of the law to the status the person occupied before such arrest or indictment or information if the court finds all of the following: the petitioner has not previously been granted an expunction under this section, G.S. 15A‑145, 15A‑145.1, 15A‑145.2, 15A‑145.3, or 15A‑145.4; the petitioner has remained of good moral character; the petitioner has no outstanding warrants or pending criminal cases; the petitioner has no other felony or misdemeanor convictions other than a traffic violation; the petitioner has no outstanding restitution orders or civil judgments representing amounts ordered for restitution entered against the petitioner; and the petitioner was convicted of an offense eligible for expunction under this section and was convicted of, and completed any sentence received for, the nonviolent misdemeanor or nonviolent felony at least 15 years prior to the filing of the petition,section; and if convicted of a nonviolent felony, the petition was not filed any earlier than 10 years after the date of conviction or the completion of any active sentence, period of probation, and post‑release supervision, whichever occurs later, or if convicted of a nonviolent misdemeanor, the petition was not filed any earlier than five years after the date of conviction or the completion of any active sentence, period of probation, and post‑release supervision, whichever occurs later.  it may order that such person be restored, in the contemplation of the law, to the status the person occupied before such arrest or indictment or information. If the court denies the petition, the order shall include a finding as to the reason for the denial."

SECTION 2.  G.S. 15A‑146 reads as rewritten:

"§ 15A‑146.  Expunction of records when charges are dismissed or there are findings of not guilty.

(a)        If any person is charged with a crime, either a misdemeanor or a felony, or was charged with an infraction under G.S. 18B‑302(i) prior to December 1, 1999, and the charge is dismissed, or a finding of not guilty or not responsible is entered, that person may apply to the court of the county where the charge was brought for an order to expunge from all official records any entries relating to his apprehension or trial. The court shall hold a hearing on the application and, upon finding that the person had not previously received an expungement under this section, G.S. 15A‑145, 15A‑145.1, 15A‑145.2, 15A‑145.3, 15A‑145.4, or 15A‑145.5, and that the person had not previously been convicted of any felony under the laws of the United States, this State, or any other state, application, and the court shall order the expunction. No person as to whom such an order has been entered shall be held thereafter under any provision of any law to be guilty of perjury, or to be guilty of otherwise giving a false statement or response to any inquiry made for any purpose, by reason of his failure to recite or acknowledge any expunged entries concerning apprehension or trial.

(a1)      Notwithstanding subsection (a) of this section, if a person is charged with multiple offenses and all the charges are dismissed, or findings of not guilty or not responsible are made, then a person may apply to have each of those charges expunged if the offenses occurred within the same 12‑month period of time or if the charges are dismissed or findings are made at the same term of court. expunged. Unless circumstances otherwise clearly provide, the phrase "term of court" shall mean one week for superior court and one day for district court. There is no requirement that the multiple offenses arise out of the same transaction or occurrence or that the multiple offenses were consolidated for judgment. The court shall hold a hearing on the application. If the court finds (i) that the person had not previously received an expungement under this subsection, or that any previous expungement received under this subsection occurred prior to October 1, 2005 and was for an offense that occurred within the same 12‑month period of time, or was dismissed or findings made at the same term of court, as the offenses that are the subject of the current application, (ii) that the person had not previously received an expungement under G.S. 15A‑145, 15A‑145.1, 15A‑145.2, 15A‑145.3, 15A‑145.4, or 15A‑145.5, and (iii) that the person had not previously been convicted of any felony under the laws of the United States, this State, or any other state, the court shall order the expunction. The court shall hold a hearing on the applications and shall order the expunctions. No person as to whom such an order has been entered shall be held thereafter under any provision of any law to be guilty of perjury, or to be guilty of otherwise giving a false statement or response to any inquiry made for any purpose, by reason of his failure to recite or acknowledge any expunged entries concerning apprehension or trial.

…."

SECTION 3.  G.S. 15A‑145.5(a)(5) is repealed.

SECTION 4.  G.S. 15A‑145.2(c) reads as rewritten:

"(c)       Whenever any person who has not previously been convicted of (i) any felony offense under any state or federal laws; (ii) any offense under Chapter 90 of the General Statutes; or (iii) an offense under any statute of the United States or any state relating to controlled substances included in any schedule of Chapter 90 of the General Statutes or to that paraphernalia included in Article 5B of Chapter 90 of the General Statutes, pleads guilty to or has been found guilty of a misdemeanor under Article 5 of Chapter 90 of the General Statutes by possessing a controlled substance included within Schedules I through VI of Chapter 90, or by possessing drug paraphernalia as prohibited by G.S. 90‑113.22 or pleads guilty to or has been found guilty of a felony under G.S. 90‑95(a)(3), the court may, upon application of the person not sooner than 12 months after conviction, order cancellation of the judgment of conviction and expunction of the records of the person's arrest, indictment or information, trial, and conviction. A conviction in which the judgment of conviction has been canceled and the records expunged pursuant to this subsection shall not be thereafter deemed a conviction for purposes of this subsection or for purposes of disqualifications or liabilities imposed by law upon conviction of a crime, including the additional penalties imposed for second or subsequent convictions of Article 5 of Chapter 90 of the General Statutes. Cancellation and expunction under this subsection may occur only once with respect to any person. Disposition of a case under this subsection at the district court division of the General Court of Justice shall be final for the purpose of appeal.

The granting of an application filed under this subsection shall cause the issue of an order to expunge from all official records, other than the confidential files retained under G.S. 15A‑151, all recordation relating to the petitioner's arrest, indictment or information, trial, finding of guilty, judgment of conviction, cancellation of the judgment, and expunction of records pursuant to this subsection.

The judge to whom the petition is presented is authorized to call upon a probation officer for additional investigation or verification of the petitioner's conduct since conviction. If the court determines that the petitioner was convicted of (i) a misdemeanor under Article 5 of Chapter 90 of the General Statutes for possessing a controlled substance included within Schedules I through VI of Article 5 of Chapter 90 of the General Statutes or for possessing drug paraphernalia as prohibited in G.S. 90‑113.22 or (ii) a felony under G.S. 90‑95(a)(3), that the petitioner has no disqualifying previous convictions as set forth in this subsection, that the petitioner was not over 21 years of age at the time of the offense, that the petitioner has been of good behavior since his or her conviction, that the petitioner has successfully completed a drug education program approved for this purpose by the Department of Health and Human Services, and that the petitioner has not been convicted of a felony or misdemeanor other than a traffic violation under the laws of this State at any time prior to or since the conviction for the offense in question, it shall enter an order of expunction of the petitioner's court record. The effect of such order shall be to restore the petitioner in the contemplation of the law to the status the petitioner occupied before arrest or indictment or information or conviction. No person as to whom such order was entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of the person's failures to recite or acknowledge such arrest, or indictment or information, or conviction, or trial in response to any inquiry made of him or her for any purpose. The judge may waive the condition that the petitioner attend the drug education school if the judge makes a specific finding that there was no drug education school within a reasonable distance of the defendant's residence or that there were specific extenuating circumstances which made it likely that the petitioner would not benefit from the program of instruction.

The court shall also order all law enforcement agencies, the Department of Correction, the Division of Motor Vehicles, and any other State or local agencies identified by the petitioner as bearing records of the conviction and records relating thereto to expunge their records of the conviction. The clerk shall notify State and local agencies of the court's order as provided in G.S. 15A‑150.

The provisions of this subsection shall apply retroactively."

SECTION 5.  G.S. 15A‑173.2(a) reads as rewritten:

"(a)       An individual who is convicted of no more than two Class G, H, or I felonies or misdemeanors in one session of court, and who has no other convictions for a felony or misdemeanor other than a traffic violation,felony, may petition the court where the individual was convicted for a Certificate of Relief relieving collateral consequences as permitted by this Article. Except as otherwise provided in this subsection, the petition shall be heard by the senior resident superior court judge if the convictions were in superior court, or the chief district court judge if the convictions were in district court. The senior resident superior court judge and chief district court judge in each district may delegate their authority to hold hearings and issue, modify, or revoke Certificates of Relief to judges, clerks, or magistrates in that district."

SECTION 6.  There is appropriated from the General Fund to the Department of Justice the sum of two hundred fifty thousand dollars ($250,000) for the 2014‑2015 fiscal year to be used to assist with the additional costs of criminal record checks.

SECTION 7.  Sections 6 and 7 of this act become effective July 1, 2014. The remainder of this act becomes effective December 1, 2014.