Bill Text: NC H207 | 2013-2014 | Regular Session | Amended

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Bill Title: Expunction of Drug Offenses

Spectrum: Partisan Bill (Democrat 9-0)

Status: (Introduced - Dead) 2013-03-05 - Ref to the Com on Judiciary Subcommittee B, if favorable, Appropriations [H207 Detail]

Download: North_Carolina-2013-H207-Amended.html

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GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2013

H                                                                                                                                                    1

HOUSE BILL 207

 

 

Short Title:        Expunction of Drug Offenses.		(Public)
Sponsors:	Representative Brandon (Primary Sponsor). For a complete list of Sponsors, refer to the North Carolina General Assembly Web Site.
Referred to:	Judiciary Subcommittee B, if favorable, Appropriations.

March 5, 2013

A BILL TO BE ENTITLED

AN ACT to allow the expunction of certain drug offenses.

The General Assembly of North Carolina enacts:

SECTION 1.  Article 5 of Chapter 15A of the General Statutes is amended by adding a new section to read:

"§  15A‑145.6.  Expunction of drug offenses.

(a)        The following definitions apply to this section:

(1)        Clean. – Free from drug addiction and any unlawful use of controlled substances.

(2)        Drug offense. – A conviction of any violation of G.S. 90‑95(a) through G.S. 90‑95(g). The term "drug offense" does not include any conviction for a violation of G.S. 90‑95(h).

(b)        Notwithstanding any other provision of law, if the person is convicted of more than one drug offense, then the multiple drug offense convictions shall be treated as one drug offense under this section, and the expunction order issued under this section shall provide that the multiple drug offense convictions shall be expunged from the person's record in accordance with this section. There is no requirement that the convictions have occurred in the same session of court.

(c)        A person may file a petition in the court where the person was convicted for expunction of a drug offense conviction from the person's criminal record if the person has no other misdemeanor or felony convictions, other than a traffic violation, was convicted of a drug offense that is eligible pursuant to subsection (b) of this section, and provides proof pursuant to subsection (d) of this section that the person is clean and has been clean for a period of at least one year prior to the date that the petition is filed. The petition shall not be filed earlier than 15 years after the date of the conviction or when any active sentence, period of probation, and post‑release supervision has been served, whichever occurs later. If the petition is to expunge multiple convictions, the petition shall not be filed earlier than 15 years after the date of the last conviction or when any active sentence, period of probation, and post‑release supervision has been served for the last conviction, whichever occurs later.

(d)        To establish that a person is clean and has been clean for a period of at least one year prior to the date that the petition is filed, a person shall provide proof that the person has been tested for drugs every 30 days for a period of at least one year immediately preceding the date that the petition is filed and tested clean at each testing, and shall also provide a drug evaluation for review by the court. The Administrative Office of the Courts, in cooperation with the Department of Health and Human Services, shall determine what type of documentation must be provided to the court regarding the required drug testing and evaluation and the format in which the documentation shall be presented to the court for review.

(e)        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 drug offense 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.

(6)        Documentation in a format approved by the Administrative Office of the Courts establishing that the petitioner is clean and has been clean for a period of at least one year prior to the date of the filing of the petition and a drug evaluation.

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 may 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 petitioner has not previously been granted an expunction under this section, the petitioner is clean, 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 drug offense at least 15 years prior to the filing of the petition, 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.

(f)         No person as to whom an order has been entered pursuant to subsection (e) of this section shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of that person's failure to recite or acknowledge the arrest, indictment, information, trial, or conviction. Persons pursuing certification under the provisions of Chapter 17C or 17E of the General Statutes, however, shall disclose any and all convictions to the certifying Commission, regardless of whether or not the convictions were expunged pursuant to the provisions of this section.

Persons required by State law to obtain a criminal history record check on a prospective employee shall not be deemed to have knowledge of any convictions expunged under this section.

(g)        The court shall also order that the conviction be expunged from the records of the court and direct all law enforcement agencies bearing record of the same 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.

(h)        Any other applicable State or local government agency shall expunge from its records entries made as a result of the conviction ordered expunged under this section upon receipt from the petitioner of an order entered pursuant to this section. The agency shall also reverse any administrative actions taken against a person whose record is expunged under this section as a result of the charges or convictions expunged. This subsection shall not apply to the Department of Justice for DNA records and samples stored in the State DNA Database and the State DNA Databank or to fingerprint records.

(i)         A person who files a petition for expunction of a criminal record under this section must pay the clerk of superior court a fee of one hundred seventy‑five dollars ($175.00) at the time the petition is filed. Fees collected under this subsection shall be deposited in the General Fund. This subsection does not apply to petitions filed by an indigent."

SECTION 2.  G.S. 15A‑145.5(a)(5) reads as rewritten:

"(a)       For purposes of this section, the term "nonviolent misdemeanor" or "nonviolent felony" means any misdemeanor or felony except the following:

…

(5)        Any felony offense in Chapter 90 of the General Statutes where the offense involves methamphetamines, heroin, or possession with intent to sell or deliver or sell and deliver cocaine.Statutes."

SECTION 3.  G.S. 15A‑151(a) reads as rewritten:

"(a)       The Administrative Office of the Courts shall maintain a confidential file containing the names of those people for whom it received a notice under G.S. 15A‑150. The information contained in the file may be disclosed only as follows:

(1)        To a judge of the General Court of Justice of North Carolina for the purpose of ascertaining whether a person charged with an offense has been previously granted a discharge or an expunction.

(2)        To a person requesting confirmation of the person's own discharge or expunction, as provided in G.S. 15A‑152.

(3)        To the General Court of Justice of North Carolina in response to a subpoena or other court order issued pursuant to a civil action under G.S. 15A‑152.

(4)        If the criminal record was expunged pursuant to G.S. 15A‑145.4 or G.S. 15A‑145.5, G.S. 15A‑145.4, 15A‑145.5, or 15A‑145.6 to State and local law enforcement agencies for employment purposes only.

(5)        If the criminal record was expunged pursuant to G.S. 15A‑145.4 or G.S. 15A‑145.5, G.S. 15A‑145.4, 15A‑145.5, or 15A‑145.6 to the North Carolina Criminal Justice Education and Training Standards Commission for certification purposes only.

(6)        If the criminal record was expunged pursuant to G.S. 15A‑145.4 or G.S. 15A‑145.5, G.S. 15A‑145.4, 15A‑145.5, or 15A‑145.6 to the North Carolina Sheriffs' Education and Training Standards Commission for certification purposes only."

SECTION 4.  G.S. 17C‑13(b) reads as rewritten:

"(b)      Notwithstanding G.S. 15A‑145.4 or G.S. 15A‑145.5, G.S. 15A‑145.4, 15A‑145.5, or 15A‑145.6 the Commission may gain access to a person's felony conviction records, including those maintained by the Administrative Office of the Courts in its confidential files containing the names of persons granted expunctions. The Commission may deny, suspend, or revoke a person's certification based solely on that person's felony conviction, whether or not that conviction was expunged."

SECTION 5.  G.S. 17E‑12(b) reads as rewritten:

"(b)      Notwithstanding G.S. 15A‑145.4 or G.S. 15A‑145.5, G.S. 15A‑145.4, 15A‑145.5, or 15A‑145.6 the Commission may gain access to a person's felony conviction records, including those maintained by the Administrative Office of the Courts in its confidential files containing the names of persons granted expunctions. The Commission may deny, suspend, or revoke a person's certification based solely on that person's felony conviction, whether or not that conviction was expunged."

SECTION 6.  This act becomes effective December 1, 2013.