Criminal Law: Expungement or Certificate of Relief

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Criminal Law: Expungement or Certificate of Relief

             A criminal record can cause considerable headache when applying for employment, housing, and college.  Even when a criminal charge is dismissed the original charge remains on the individual’s criminal record.  This is a common frustration for many of our clients.  In North Carolina, an expunction is the destruction of a criminal record by court order.  Upon receiving an expunction the individual may truthfully deny or refuse to acknowledge the criminal incident ever occurred.

 

             More recently expungements have become more difficult to qualify for, and for qualified individuals the process can be extremely confusing.  Criminal records eligible for expunction generally fall into three categories: first-time, nonviolent offense committed more than 15 years ago; first-time offense committed under age 18/22; or, a charge not resulting in conviction.  In total there are 12 different expunction statutes:

 

 

  • Juvenile Record                                  G.S. 7B-3200
  • Misdemeanors under age 18               G.S. 15A-145
  • Gang Offense under age 18                G.S. 15A-145.1
  • Controlled substance under age 22     G.S. 15A-145.2
  • Toxic vapors under age 22                  G.S. 15A-145.3
  • Nonviolent felony under age 18         G.S. 15A-145.4
  • Nonviolent offense (any age)             G.S. 15A-145.5
  • Prostitution offense                            G.S. 15A-145.6
  • Charge not resulting in conviction      G.S. 15A-146
  • Identity theft                                      G.S. 15A-147
  • DNA records                                      G.S. 15A-148
  • Pardon of Innocence                           G.S. 15A-149

             To successfully petition the Court for an expungement you will first need to obtain a complete and accurate criminal record.  This process can be tricky.  The easiest way is to go to the Clerk of Court in the county of the conviction and request a criminal record.  A certified copy will likely cost you $25.  To obtain a statewide criminal record you would need to request a copy for the NC State Bureau of Investigation (“SBI”).  The SBI will require you submit a Right to Review form along with a completed fingerprint card.  The Sheriff’s Office will likely complete a fingerprint card for $25 and the request to the SBI cost $14.

 

             After obtaining a complete and accurate criminal history the petitioner will need to identify the type of expunction he/she is eligible for and fill out the corresponding petition form.  Once the correct petition form is completed it will need to be filed in the county the charge or conviction sought to be expunged occurred and served on the District Attorney’s Office in that county.  Once this is done the Clerk of Court submits the petition to the SBI and Administrative Office of the Courts for review.  Once the petition is returned to the Clerk of Court it is submitted to the Judge for an order granting or denying the petition.  If the petition is granted it is ultimately returned to the SBI where the record is actually destroyed.  This process can take anywhere from 4-6 months.

 

             If you are ineligible for expunction, all hope is not lost; you may be eligible for a certificate of relief.  Though a certificate of relief does not remove a criminal charge or conviction from your record, it may lessen the collateral consequences other state agencies or employers may impose.  Collateral consequences from criminal convictions may include mandatory bar on occupational licensure or other discretionary penalties imposed.  Additionally, the certificate of relief shelters employers from negligent hiring lawsuits.  Lastly, and most importantly, the certificate acts as a judicial finding that you do not “pose an unreasonable risk to the safety or welfare of the public.”

 

             If you want to know if you are eligible for an expunction or certificate of relief contact our office so we may discuss your case with you.

 

About the Author

Preston Hilton

Preston Hilton is an attorney with Wright, Worley, Pope, Ekster & Moss, PLLC's Brunswick County, North Carolina office located in Supply.  He can be reached at 910-754-2816.