Key Concepts

  • If the defendant meets the statutory eligibility requirements, he or she may petition the court to have all records of a charge (and in some cases, even a conviction) expunged.
  • The defendant (“petitioner”) is responsible for filing all appropriate paperwork and supporting documentation with the court; the state may be entitled to service of a copy of the petition, or notice of the hearing on the petition, or both.
  • Many expunction statutes direct that the court “shall” grant the petition if the defendant qualifies, but when a statute says that the court “may” grant the petition, or when it depends upon a finding such as “good behavior” since the offense, the state may have valid reasons for opposing the petition.

Eligibility Overview

“Expunction” refers to the process of having the records of court proceedings against a person removed or erased. This type of relief must be specifically authorized by statute, and it is only available in particular circumstances. A comprehensive discussion of the topic is beyond the scope of this entry, since the responsibility for seeking an expunction falls largely on the defendant and/or defense counsel, but a general overview of the topic is presented here for prosecutors’ reference. More detailed information can be found in the section on “Expunctions” in Relief from a Criminal Conviction (2020 edition).
There are five main categories of expunction:

  1. Age-Related
    This may refer to either the age of the defendant at the time of the offense (see also: expunction of juvenile delinquency charges), or the age of the offense itself (i.e., the amount of time that has passed since conviction). This typically applies to convictions which occurred before the defendant turned either 18 or 21, and to certain non-violent convictions that occurred 5, 10, or 15 years ago.
  2. Dismissals, Diversions, Non-convictions
    For a case that ends without a conviction, whether because of a finding of not guilty or through some other means such as a dismissal by the state or successful completion of a deferral program, the defendant may be eligible to have all records of his or her apprehension and charges expunged.
  3. Drug Offenses
    Similar to category #2 above, when a defendant charged with a controlled substance offense successfully completes a conditional discharge under G.S. 90-96(a) or similar deferral arrangement, or otherwise has the charges discharged or dismissed, he or she may be eligible to have all records of the proceedings expunged.
  4. "Lesser Culpability” Offenses
    Some statutes allow for expunction even after a conviction for certain offenses like prostitution or gang activity. In order to qualify for this relief, the defendant may need to satisfy additional eligibility requirements, such as establishing that his or her participation in prostitution resulted from human trafficking, or providing affidavits which verify that the defendant has shown good character since the gang offense.
  5. Identity Theft or Mistaken Identity
    A defendant may also seek to have his or her record expunged (or have a conviction set aside) if the charges resulted from identity theft or mistaken identity.

Procedure Overview

Although the specific steps will vary based on the controlling statutes and the type of expunction sought, the basic process is the same for all expunctions. The defendant (or “petitioner”) must file a petition and any required supporting documentation with the appropriate court, showing that he or she meets the eligibility criteria. The relevant statutes will dictate which court is the “appropriate court” for filing, but usually it is the same court where the case was originally charged, convicted, or dismissed. The defendant will likely have to pay a fee (unless he or she is indigent), and consent to a record search to verify that he or she is indeed eligible (no prior expunctions, no subsequent convictions, etc.). If the defendant qualifies and the court grants the petition, the judge will enter an order directing the relevant government agencies to expunge their records.

Prosecutor’s Role

  1. Receiving Service or Notice of Petition
    Many of the expunction statutes require that the petitioner serve a copy of the petition, affidavits, and other supporting materials on the district attorney. See G.S. 15A-145(a) (Expunction for first offenders under age 18; certain other misdemeanors); G.S. 15A-145.1(a) (Expunction for first offenders under age 18; certain gang offenses); G.S. 15A-145.4(d) (Expunction for first offenders under age 18; nonviolent felony); G.S. 15A-145.5(c) (Expunction of certain misdemeanors and felonies; no age limit); G.S. 15A-145.6(d) (Expunction for certain defendants convicted of prostitution).
    The statute covering petitions for expunctions based on dismissed charges, identity theft, or mistaken identity (G.S. 15A-146) does not mandate service of the petition upon the district attorney; however, G.S. 15A-147(a) still requires that the court give “notice” to the district attorney before holding a hearing on the petition.
  2. Opposing the Petition
    In most cases, the statutes indicate that if the defendant meets all the eligibility criteria, then the court “shall” grant the expunction. Obviously this leaves little room (or need) for the state to advocate against a valid and qualifying petition. However, there are two expunction statutes which only state that the court “may” grant the petition. See G.S. 15A-145.4 (first offender, nonviolent felony) and G.S. 15A-145.5 (first offender, older nonviolent misdemeanors and felonies). Therefore, if the state has a reasonable basis to oppose a petition submitted under those statutes (evidence of continuing gang involvement, subject of an active drug investigation, etc.), the prosecutor may want to be heard and present arguments against the petition at the hearing.
    Additionally, some expunction statutes impose “good conduct” eligibility requirements on the defendant, but do not clearly define those terms. See, e.g., G.S. 15A-145 (requiring “good behavior” for two years after conviction); G.S. 15A-145.6 (requiring “good moral character” since conviction). Again, if the state has reason to believe that the defendant does not satisfy those criteria, then the prosecutor may need to argue to the judge that the defendant is not eligible for the expunction.
Practice Pointer

Filing objections
If a prosecutor intends to oppose a petition for expunction, he or she needs to be aware that the various statutes set time limits for filing an “objection” after receiving a petition. Depending on the type of expunction sought, these time limits typically range from 10 days (G.S. 15A-145) to 30 days (G.S. 15A-145.6). It will not always be possible to complete a criminal history check and evaluate defendant’s eligibility within such a short amount of time.
If the objection deadline passes but the prosecutor still wishes to oppose the petition at the hearing, the prosecutor may be able to argue to the court that: (i) the need to research the defendant’s record and investigate the petition constituted good cause for allowing additional time; and (ii) the deadline for filing "objections" does not necessarily mean the state is barred from simply making arguments or presenting contrary evidence at the hearing. See also G.S. 15A-173.4 (state is entitled to receive notice from the court “at least three weeks before any hearing” on a certificate of relief).

If the court grants the expunction despite the prosecutor's opposition, the state does not have a statutory right to appeal; therefore, the only avenue for the state to seek appellate review of the expunction order is through a writ of certiorari. State v. J.C., 372 N.C. 203 (2019) ("The statute governing defendant’s expunction, N.C.G.S. § 15A-145.5, allows for the State to object to a petition for an expunction before the hearing takes place; however, the statute does not afford the State the right to appeal an expunction order" but "the State may seek review of an expunction order by writ of certiorari").

Portions of this entry were excerpted from “Expunctions,” Relief from a Criminal Conviction (2017 edition) by John Rubin.