§ 90-96. (Effective until October 1, 2010) Conditional discharge for first offense.
§ 90‑96. (Effectiveuntil October 1, 2010) Conditional discharge for first offense.
(a) Whenever any personwho has not previously been convicted of any offense under this Article orunder any statute of the United States or any state relating to those substancesincluded in Article 5 or 5A of Chapter 90 or to that paraphernalia included inArticle 5B of Chapter 90 pleads guilty to or is found guilty of (i) amisdemeanor under this Article by possessing a controlled substance includedwithin Schedules II through VI of this Article or by possessing drugparaphernalia 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, without entering a judgment of guilt and with the consent of such person,defer further proceedings and place him on probation upon such reasonable termsand conditions as it may require. Notwithstanding the provisions of G.S. 15A‑1342(c)or any other statute or law, probation may be imposed under this section for anoffense under this Article for which the prescribed punishment includes only afine. To fulfill the terms and conditions of probation the court may allow thedefendant to participate in a drug education program approved for this purposeby the Department of Health and Human Services. Upon violation of a term orcondition, the court may enter an adjudication of guilt and proceed asotherwise provided. Upon fulfillment of the terms and conditions, the courtshall discharge such person and dismiss the proceedings against him. Dischargeand dismissal under this section shall be without court adjudication of guiltand shall not be deemed a conviction for purposes of this section or forpurposes of disqualifications or disabilities imposed by law upon conviction ofa crime including the additional penalties imposed for second or subsequentconvictions under this Article. Discharge and dismissal under this section orG.S. 90‑113.14 may occur only once with respect to any person.Disposition of a case to determine discharge and dismissal under this sectionat the district court division of the General Court of Justice shall be finalfor the purpose of appeal. Prior to taking any action to discharge and dismissunder this section the court shall make a finding that the defendant has norecord of previous convictions under the "North Carolina ControlledSubstances Act", Article 5, Chapter 90, the "North Carolina ToxicVapors Act", Article 5A, Chapter 90, or the "Drug ParaphernaliaAct", Article 5B, Chapter 90.
(a1) Upon the firstconviction only of any offense included in G.S. 90‑95(a)(3) or G.S. 90‑113.22and subject to the provisions of this subsection (a1), the court may placedefendant on probation under this section for an offense under this Articleincluding an offense for which the prescribed punishment includes only a fine.The probation, if imposed, shall be for not less than one year and shallcontain a minimum condition that the defendant who was found guilty or pleadsguilty enroll in and successfully complete, within 150 days of the date of theimposition of said probation, the program of instruction at the drug educationschool approved by the Department of Health and Human Services pursuant to G.S.90‑96.01. The court may impose probation that does not contain acondition that defendant successfully complete the program of instruction at adrug education school if:
(1) There is no drugeducation school within a reasonable distance of the defendant's residence; or
(2) There are specific,extenuating circumstances which make it likely that defendant will not benefitfrom the program of instruction.
The court shall enter suchspecific findings in the record; provided that in the case of subdivision (2)above, such findings shall include the specific, extenuating circumstanceswhich make it likely that the defendant will not benefit from the program ofinstruction.
Upon fulfillment of the termsand conditions of the probation, the court shall discharge such person anddismiss the proceedings against the person.
For the purposes ofdetermining whether the conviction is a first conviction or whether a personhas already had discharge and dismissal, no prior offense occurring more thanseven years before the date of the current offense shall be considered. Inaddition, convictions for violations of a provision of G.S. 90‑95(a)(1)or 90‑95(a)(2) or 90‑95(a)(3), or 90‑113.10, or 90‑113.11,or 90‑113.12, or 90‑113.22 shall be considered previousconvictions.
Failure to completesuccessfully an approved program of instruction at a drug education schoolshall constitute grounds to revoke probation pursuant to this subsection anddeny application for expunction of all recordation of defendant's arrest,indictment, or information, trial, finding of guilty, and dismissal and dischargepursuant to G.S. 15A‑145.2. For purposes of this subsection, the phrase"failure to complete successfully the prescribed program of instruction ata drug education school" includes failure to attend scheduled classeswithout a valid excuse, failure to complete the course within 150 days ofimposition of probation, willful failure to pay the required fee for the courseas provided in G.S. 90‑96.01(b), or any other manner in which the personfails to complete the course successfully. The instructor of the course towhich a person is assigned shall report any failure of a person to completesuccessfully the program of instruction to the court which imposed probation.Upon receipt of the instructor's report that the person failed to complete theprogram successfully, the court shall revoke probation, shall not dischargesuch person, shall not dismiss the proceedings against the person, and shalldeny application for expunction of all recordation of defendant's arrest,indictment, or information, trial, finding of guilty, and dismissal anddischarge pursuant to G.S. 15A‑145.2. A person may obtain a hearingbefore the court of original jurisdiction prior to revocation of probation ordenial of application for expunction.
This subsection issupplemental and in addition to existing law and shall not be construed so asto repeal any existing provision contained in the General Statutes of NorthCarolina.
(b) Upon the dischargeof such person, and dismissal of the proceedings against him under subsection(a) or (a1) of this section, such person, if he were not over 21 years of ageat the time of the offense, may be eligible to apply for expunction of certainrecords relating to the offense pursuant to G.S. 15A‑145.2(a).
(c) The clerk ofsuperior court in each county in North Carolina shall, as soon as practicableafter each term of court in his county, file with the Administrative Office ofthe Courts the names of those persons granted a conditional discharge under theprovisions of this Article, and the Administrative Office of the Courts shallmaintain a confidential file containing the names of persons grantedconditional discharges. The information contained in the file shall bedisclosed only to Judges of the General Court of Justice of North Carolina forthe purpose of ascertaining whether any person charged with an offense underthis Article has been previously granted a conditional discharge.
(d) Whenever any personis charged with a misdemeanor under this Article by possessing a controlledsubstance included within Schedules II through VI of this Article or a felonyunder G.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,the person may be eligible to apply for expunction of certain records relatingto the offense pursuant to G.S. 15A‑145.2(b).
(e) Whenever any personwho has not previously been convicted of an offense under this Article or underany statute of the United States or any state relating to controlled substancesincluded in any schedule of this Article 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 this Article by possessing a controlledsubstance included within Schedules II through VI of this Article, or bypossessing drug paraphernalia as prohibited by G.S. 90‑113.22 or (ii) afelony under G.S. 90‑95(a)(3) by possessing less than one gram ofcocaine, the person may be eligible to apply for cancellation of the judgmentand expunction of certain records related to the offense pursuant to G.S. 15A‑145.2(c).
(f) Repealed bySession Laws 2009‑577, s. 6, effective December 1, 2009, and applicableto petitions for expunctions filed on or after that date. (1971, c. 919, s. 1; 1973,c. 654, s. 2; c. 1066; 1977, 2nd Sess., c. 1147, s. 11B; 1979, c. 431, ss. 3,4; c. 550; 1981, c. 922, ss. 1‑4; 1994, Ex. Sess., c. 11, s. 1.1; 1997‑443,s. 11A.118(a); 2002‑126, s. 29A.5(d); 2009‑577, s. 6.)
§ 90‑96. (EffectiveOctober 1, 2010) Conditional discharge for first offense.
(a) Whenever any personwho has not previously been convicted of any offense under this Article orunder any statute of the United States or any state relating to thosesubstances included in Article 5 or 5A of Chapter 90 or to that paraphernaliaincluded in Article 5B of Chapter 90 pleads guilty to or is found guilty of (i)a misdemeanor under this Article by possessing a controlled substance includedwithin Schedules II through VI of this Article or by possessing drugparaphernalia 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, without entering a judgment of guilt and with the consent of such person,defer further proceedings and place him on probation upon such reasonable termsand conditions as it may require. Notwithstanding the provisions of G.S. 15A‑1342(c)or any other statute or law, probation may be imposed under this section for anoffense under this Article for which the prescribed punishment includes only afine. To fulfill the terms and conditions of probation the court may allow thedefendant to participate in a drug education program approved for this purposeby the Department of Health and Human Services. Upon violation of a term orcondition, the court may enter an adjudication of guilt and proceed asotherwise provided. Upon fulfillment of the terms and conditions, the court shalldischarge such person and dismiss the proceedings against him. Discharge anddismissal under this section shall be without court adjudication of guilt andshall not be deemed a conviction for purposes of this section or for purposesof disqualifications or disabilities imposed by law upon conviction of a crimeincluding the additional penalties imposed for second or subsequent convictionsunder this Article. Discharge and dismissal under this section or G.S. 90‑113.14may occur only once with respect to any person. Disposition of a case todetermine discharge and dismissal under this section at the district courtdivision of the General Court of Justice shall be final for the purpose ofappeal. Prior to taking any action to discharge and dismiss under this sectionthe court shall make a finding that the defendant has no record of previousconvictions under the "North Carolina Controlled Substances Act",Article 5, Chapter 90, the "North Carolina Toxic Vapors Act", Article5A, Chapter 90, or the "Drug Paraphernalia Act", Article 5B, Chapter90.
(a1) Upon the firstconviction only of any offense included in G.S. 90‑95(a)(3) or G.S. 90‑113.22and subject to the provisions of this subsection (a1), the court may placedefendant on probation under this section for an offense under this Articleincluding an offense for which the prescribed punishment includes only a fine.The probation, if imposed, shall be for not less than one year and shallcontain a minimum condition that the defendant who was found guilty or pleadsguilty enroll in and successfully complete, within 150 days of the date of theimposition of said probation, the program of instruction at the drug educationschool approved by the Department of Health and Human Services pursuant to G.S.90‑96.01. The court may impose probation that does not contain acondition that defendant successfully complete the program of instruction at adrug education school if:
(1) There is no drugeducation school within a reasonable distance of the defendant's residence; or
(2) There are specific,extenuating circumstances which make it likely that defendant will not benefitfrom the program of instruction.
The court shall enter suchspecific findings in the record; provided that in the case of subdivision (2)above, such findings shall include the specific, extenuating circumstanceswhich make it likely that the defendant will not benefit from the program ofinstruction.
Upon fulfillment of the termsand conditions of the probation, the court shall discharge such person anddismiss the proceedings against the person.
For the purposes ofdetermining whether the conviction is a first conviction or whether a personhas already had discharge and dismissal, no prior offense occurring more thanseven years before the date of the current offense shall be considered. Inaddition, convictions for violations of a provision of G.S. 90‑95(a)(1)or 90‑95(a)(2) or 90‑95(a)(3), or 90‑113.10, or 90‑113.11,or 90‑113.12, or 90‑113.22 shall be considered previousconvictions.
Failure to completesuccessfully an approved program of instruction at a drug education schoolshall constitute grounds to revoke probation pursuant to this subsection anddeny application for expunction of all recordation of defendant's arrest,indictment, or information, trial, finding of guilty, and dismissal anddischarge pursuant to G.S. 15A‑145.2. For purposes of this subsection,the phrase "failure to complete successfully the prescribed program ofinstruction at a drug education school" includes failure to attend scheduledclasses without a valid excuse, failure to complete the course within 150 daysof imposition of probation, willful failure to pay the required fee for thecourse as provided in G.S. 90‑96.01(b), or any other manner in which theperson fails to complete the course successfully. The instructor of the courseto which a person is assigned shall report any failure of a person to completesuccessfully the program of instruction to the court which imposed probation.Upon receipt of the instructor's report that the person failed to complete theprogram successfully, the court shall revoke probation, shall not dischargesuch person, shall not dismiss the proceedings against the person, and shalldeny application for expunction of all recordation of defendant's arrest,indictment, or information, trial, finding of guilty, and dismissal anddischarge pursuant to G.S. 15A‑145.2. A person may obtain a hearingbefore the court of original jurisdiction prior to revocation of probation ordenial of application for expunction.
This subsection issupplemental and in addition to existing law and shall not be construed so asto repeal any existing provision contained in the General Statutes of NorthCarolina.
(b) Upon the dischargeof such person, and dismissal of the proceedings against him under subsection(a) or (a1) of this section, such person, if he were not over 21 years of ageat the time of the offense, may be eligible to apply for expunction of certainrecords relating to the offense pursuant to G.S. 15A‑145.2(a).
other than the confidentialfile retained by the Administrative Office of the Courts under G.S. 15A‑151,agencies, the Department of Correction, the Division of Motor Vehicles, and anyother State or local government agencies identified by the petitioner as notifyState and local agencies of the court's order as provided in G.S. 15A‑150.
(c) Repealed by SessionLaws 2009‑510, s. 8(b), effective October 1, 2010.
(d) Whenever any personis charged with a misdemeanor under this Article by possessing a controlledsubstance included within Schedules II through VI of this Article or a felonyunder G.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,the person may be eligible to apply for expunction of certain records relatingto the offense pursuant to G.S. 15A‑145.2(b). The clerk shall notifyState and local agencies of the court's order as provided in G.S. 15A‑150.
(e) Whenever any personwho has not previously been convicted of an offense under this Article or underany statute of the United States or any state relating to controlled substancesincluded in any schedule of this Article 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 this Article by possessing a controlledsubstance included within Schedules II through VI of this Article, 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 personmay be eligible to apply for cancellation of the judgment and expunction ofcertain records related to the offense pursuant to G.S. 15A‑145.2(c).
other than the confidentialfile retained by the Administrative Office of the Courts under G.S. 15A‑151,agencies, the Department of Correction, the Division of Motor Vehicles, and anyother State or local government agency identified by the petitioner as notifyState and local agencies of the court's order as provided in G.S. 15A‑150.
(f) Repealed bySession Laws 2009‑577, s. 6, effective December 1, 2009, and applicableto petitions for expunctions filed on or after that date. (1971, c. 919, s. 1; 1973,c. 654, s. 2; c. 1066; 1977, 2nd Sess., c. 1147, s. 11B; 1979, c. 431, ss. 3,4; c. 550; 1981, c. 922, ss. 1‑4; 1994, Ex. Sess., c. 11, s. 1.1; 1997‑443,s. 11A.118(a); 2002‑126, s. 29A.5(d); 2009‑510, s. 8(a)‑(d);2009‑577, s. 6.)