Duncan A. McMillan

DWI/Traffic Cases

Expunction of Records

Generally speaking, a person may not expunge the records of a criminal conviction. A conviction remains on the records of the individual forever. It is only in those cases that are specifically enumerated in the statutes that an expunction is permitted under North Carolina law.

Criminal records may be expunged only in limited circumstances. A person who is under the age of 18 and is convicted of a misdemeanor (other than a traffic violation) may have the record of his conviction expunged by following the procedure set out in NCGS 15A-145.

Likewise, a person who is 18, 19, or 20 years old who is convicted of misdemeanor possession of alcohol may file a petition for an expungement if he/she meets the criteria set out in NCGS 15A-145. The petition for an expunction of records of a conviction under these circumstances requires the petitioner to provide an affidavit that he has been of good behavior for two years following the date of conviction, and has not been convicted of any other criminal offense other than a traffic violation since the original conviction. The petition must also provide affidavits from two other persons as to the petitioner’s character, as well as affidavits from the Clerk of Superior Court, Chief of Police, and Sheriff of the county in which the petitioner was convicted and any county in which he has resided since the date of conviction verifying that the petitioner has not had any criminal conviction since the date of the conviction sought to be expunged.

Criminal records may also be expunged if an individual is found not guilty or if the charges against him are dismissed. NCGS 15A-146 provides the statutory authority for such an expungement. NCGS 15A-147 authorizes the expunction of records where charges are dismissed or there is a finding of not guilty as a result of identity fraud or theft.

There are several provisions in the North Carolina Controlled Substances Act that authorize expunction of records in certain cases involving drug violations. NCGS 90-96 provides a mechanism for a deferred prosecution in certain misdemeanor and felony drug cases. Whether or not an individual is eligible to participate in such a program depends on the prior record of the individual, the particular drug offense involved, and the discretion of the presiding Judge.

In Wake County North Carolina there is a separate felony drug diversion program, which is authorized by the District Attorney’s office in certain cases.

If an individual qualifies for and successfully completes a deferred prosecution program authorized under NCGS 90-96, upon his discharge from the deferred prosecution, he may apply for an expunction of his records. NCGS 90-113.14 provides a mechanism by which individuals who are discharged and whose cases are dismissed pursuant to that section may apply for an expunction if they were under the age of 21 at the time of the offense.