§ 15A-145.2. Expunction of records for first offenders not over 21 years of age at the time of the offense of certain drug offenses.
§ 15A‑145.2. Expunctionof records for first offenders not over 21 years of age at the time of theoffense of certain drug offenses.
(a) Whenever a personis discharged, and the proceedings against the person dismissed, pursuant toG.S. 90‑96(a) or (a1), and the person was not over 21 years of age at thetime of the offense, the person may apply to the court for an order to expungefrom all official records (other than the confidential file to be retained bythe Administrative Office of the Courts under G.S. 90‑96(c)) allrecordation relating to his arrest, indictment or information, trial, findingof guilty, and dismissal and discharge pursuant to this section. The applicantshall attach to the application the following:
(1) An affidavit by theapplicant that he has been of good behavior during the period of probationsince the decision to defer further proceedings on the offense in question andhas not been convicted of any felony or misdemeanor other than a trafficviolation under the laws of the United States or the laws of this State or anyother state;
(2) Verified affidavitsby two persons who are not related to the applicant or to each other by bloodor marriage, that they know the character and reputation of the petitioner inthe community in which he lives, and that his character and reputation aregood;
(3) Affidavits of theclerk of superior court, chief of police, where appropriate, and sheriff of thecounty in which the petitioner was convicted, and, if different, the county ofwhich the petitioner is a resident, showing that the applicant has not beenconvicted of a felony or misdemeanor other than a traffic violation under thelaws of this State at any time prior to the conviction for the offense inquestion or during the period of probation following the decision to deferfurther proceedings on the offense in question.
The judge to whom the petitionis presented is authorized to call upon a probation officer for any additionalinvestigation or verification of the petitioner's conduct during the probationaryperiod deemed desirable.
If the court determines, afterhearing, that such person was discharged and the proceedings against himdismissed and that he was not over 21 years of age at the time of the offense,it shall enter such order. The effect of such order shall be to restore suchperson in the contemplation of the law to the status he occupied before sucharrest or indictment or information. No person as to whom such order wasentered shall be held thereafter under any provision of any law to be guilty ofperjury or otherwise giving a false statement by reason of his failures torecite or acknowledge such arrest, or indictment or information, or trial inresponse to any inquiry made of him for any purpose.
The court shall also orderthat said conviction and the records relating thereto be expunged from therecords of the court and direct all law enforcement agencies bearing records ofthe same to expunge their records of the conviction. The clerk shall forward acertified copy of the order to the sheriff, chief of police, or other arrestingagency, as appropriate, and the sheriff, chief of police, or other arrestingagency, as appropriate, shall forward such order to the State Bureau ofInvestigation with a form supplied by the State Bureau of Investigation. TheState Bureau of Investigation shall forward the court order in like manner tothe Federal Bureau of Investigation.
(b) Whenever any personis charged with a misdemeanor under Article 5 of Chapter 90 of the GeneralStatutes by possessing a controlled substance included within Schedules IIthrough VI of Article 5 of Chapter 90 of the General Statutes or a felony underG.S. 90‑95(a)(3) by possessing less than one gram of cocaine, upondismissal by the State of the charges against him, upon entry of a nolleprosequi, or upon a finding of not guilty or other adjudication of innocence,such person may apply to the court for an order to expunge from all officialrecords all recordation relating to his arrest, indictment or information, ortrial. If the court determines, after hearing, that such person was not over 21years of age at the time the offense for which the person was charged occurred,it shall enter such order. No person as to whom such order has been enteredshall be held thereafter under any provision of any law to be guilty of perjuryor otherwise giving a false statement by reason of his failures to recite oracknowledge such arrest, or indictment or information, or trial in response toany inquiry made of him for any purpose.
(c) Whenever any personwho has not previously been convicted of an offense under Article 5 of Chapter90 of the General Statutes or under any statute of the United States or anystate relating to controlled substances included in any schedule of Article 5of Chapter 90 of the General Statutes or to that paraphernalia included inArticle 5B of Chapter 90 of the General Statutes pleads guilty to or has beenfound guilty of (i) a misdemeanor under Article 5 of Chapter 90 of the GeneralStatutes by possessing a controlled substance included within Schedules IIthrough VI of Article 5 of Chapter 90 of the General Statutes or by possessingdrug paraphernalia as prohibited by G.S. 90‑113.22 or (ii) a felony underG.S. 90‑95(a)(3) by possessing less than one gram of cocaine, the courtmay, upon application of the person not sooner than 12 months after conviction,order cancellation of the judgment of conviction and expunction of the recordsof his arrest, indictment or information, trial, and conviction. A conviction inwhich the judgment of conviction has been canceled and the records expungedpursuant to this subsection shall not be thereafter deemed a conviction forpurposes of this subsection or for purposes of disqualifications or liabilitiesimposed by law upon conviction of a crime, including the additional penaltiesimposed for second or subsequent convictions of Article 5 of Chapter 90 of theGeneral Statutes. Cancellation and expunction under this subsection may occuronly once with respect to any person. Disposition of a case under thissubsection at the district court division of the General Court of Justice shallbe final for the purpose of appeal.
The granting of an applicationfiled under this subsection shall cause the issue of an order to expunge fromall official records (other than the confidential file to be retained by theAdministrative Office of the Courts under G.S. 90‑96(c)) all recordationrelating to the petitioner's arrest, indictment or information, trial, findingof guilty, judgment of conviction, cancellation of the judgment, and expunctionof records pursuant to this subsection.
The judge to whom the petitionis presented is authorized to call upon a probation officer for additionalinvestigation or verification of the petitioner's conduct since conviction. Ifthe court determines that the petitioner was convicted of (i) a misdemeanorunder Article 5 of Chapter 90 of the General Statutes for possessing acontrolled substance included within Schedules II through VI of Article 5 ofChapter 90 of the General Statutes or for possessing drug paraphernalia asprohibited in G.S. 90‑113.22 or (ii) a felony under G.S. 90‑95(a)(3)for possession of less than one gram of cocaine, that he was not over 21 yearsof age at the time of the offense, that he has been of good behavior since hisconviction, that he has successfully completed a drug education programapproved for this purpose by the Department of Health and Human Services, andthat he has not been convicted of a felony or misdemeanor other than a trafficviolation under the laws of this State at any time prior to or since theconviction for the offense in question, it shall enter an order of expunctionof the petitioner's court record. The effect of such order shall be to restorethe petitioner in the contemplation of the law to the status he occupied beforearrest or indictment or information or conviction. No person as to whom suchorder was entered shall be held thereafter under any provision of any law to beguilty of perjury or otherwise giving a false statement by reason of hisfailures to recite or acknowledge such arrest, or indictment or information, orconviction, or trial in response to any inquiry made of him for any purpose.The judge may waive the condition that the petitioner attend the drug educationschool if the judge makes a specific finding that there was no drug educationschool within a reasonable distance of the defendant's residence or that therewere specific extenuating circumstances which made it likely that thepetitioner would not benefit from the program of instruction.
The court shall also order alllaw enforcement agencies bearing records of the conviction and records relatingthereto to expunge their records of the conviction. The clerk shall forward acertified copy of the order to the sheriff, chief of police, or other arrestingagency, as appropriate, and the arresting agency shall forward the order to theState Bureau of Investigation with a form supplied by the State Bureau ofInvestigation. The State Bureau of Investigation shall forward the court orderin like manner to the Federal Bureau of Investigation.
The clerk of superior court ineach county in North Carolina shall, as soon as practicable after each term ofcourt in his county, file with the Administrative Office of the Courts thenames of those persons whose judgments of convictions have been canceled andexpunged under the provisions of this subsection, and the Administrative Officeof the Courts shall maintain a confidential file containing the names of personswhose judgments of convictions have been canceled and expunged. The informationcontained in the file shall be disclosed only to judges of the General Court ofJustice of North Carolina for the purpose of ascertaining whether any personcharged with an offense under Article 5 of Chapter 90 of the General Statuteshas been previously granted cancellation and expunction of a judgment ofconviction pursuant to the terms of this subsection.
(d) A person who filesa petition for expunction of a criminal record under this section must pay theclerk of superior court a fee of sixty‑five dollars ($65.00) at the timethe petition is filed. Fees collected under this subsection shall be depositedin the General Fund. This subsection does not apply to petitions filed by anindigent. (2009‑577,s. 2.)