GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2015
S 1
SENATE BILL 362
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Short Title: Amend Certain Expunction Laws. |
(Public) |
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Sponsors: |
Senators Hartsell (Primary Sponsor); J. Jackson, B. Jackson, and Waddell. |
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Referred to: |
Rules and Operations of the Senate. |
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March 24, 2015
A BILL TO BE ENTITLED
AN ACT to shorten the waiting period required to expunge nonviolent misdemeanor and felony convictions; to provide for expunction of all charges disposed "not guilty" or dismissed; and to allow district attorneys and law enforcement access to files expunged pursuant to second or subsequent petitions as provided by state law.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 15A‑145.5(c) reads as rewritten:
"(c) A person may file a petition, in the court where the person was convicted, for expunction of a nonviolent misdemeanor or nonviolent felony conviction from the person's criminal record if the person has no other misdemeanor or felony convictions, other than a traffic violation.
TheA petition for expunction of a nonviolent
felony shall not be filed earlier than 15 years (i) 10 years after
the date of the conviction or when (ii) the completion of any
active sentence, period of probation, and post‑release supervision has
been served, whichever occurs later.
A petition for expunction of a nonviolent misdemeanor shall not be filed earlier than (i) five years after the date of conviction or (ii) the completion of any active sentence, period of probation, and post‑release supervision has been served, whichever occurs later.
The petition shall contain, but not be limited to, the following:
(1) An affidavit by the petitioner that the petitioner has been of good moral character since the date of conviction for the nonviolent misdemeanor or nonviolent felony and has not been convicted of any other felony or misdemeanor, other than a traffic violation, under the laws of the United States or the laws of this State or any other state.
(2) Verified affidavits of two persons who are not related to the petitioner or to each other by blood or marriage, that they know the character and reputation of the petitioner in the community in which the petitioner lives and that the petitioner's character and reputation are good.
(3) A statement that the petition is a motion in the cause in the case wherein the petitioner was convicted.
(4) An application on a form approved by the Administrative Office of the Courts requesting and authorizing a name‑based State and national criminal history record check by the Department of Public Safety using any information required by the Administrative Office of the Courts to identify the individual, a search by the Department of Public Safety for any outstanding warrants on pending criminal cases, and a search of the confidential record of expunctions maintained by the Administrative Office of the Courts. The application shall be forwarded to the Department of Public Safety and to the Administrative Office of the Courts, which shall conduct the searches and report their findings to the court.
(5) An affidavit by the petitioner that no restitution orders or civil judgments representing amounts ordered for restitution entered against the petitioner are outstanding.
Upon filing of the petition, the petition shall be served upon the district attorney of the court wherein the case was tried resulting in conviction. The district attorney shall have 30 days thereafter in which to file any objection thereto and shall be duly notified as to the date of the hearing of the petition. Upon good cause shown, the court may grant the district attorney an additional 30 days to file objection to the petition. The district attorney shall make his or her best efforts to contact the victim, if any, to notify the victim of the request for expunction prior to the date of the hearing.
The presiding judge is authorized to call upon a probation officer for any additional investigation or verification of the petitioner's conduct since the conviction. The court shall review any other information the court deems relevant, including, but not limited to, affidavits or other testimony provided by law enforcement officers, district attorneys, and victims of crimes committed by the petitioner.
If the court, after hearing, finds that The court
may order that the person be restored in the contemplation of the law to the
status the person occupied before such arrest or indictment or information if
the court finds all of the following: the petitioner has not previously
been granted an expunction under this section, G.S. 15A‑145, 15A‑145.1,
15A‑145.2, 15A‑145.3, or 15A‑145.4; the petitioner has
remained of good moral character; the petitioner has no outstanding warrants or
pending criminal cases; the petitioner has no other felony or misdemeanor
convictions other than a traffic violation; the petitioner has no outstanding
restitution orders or civil judgments representing amounts ordered for
restitution entered against the petitioner; and the petitioner was
convicted of an offense eligible for expunction under this section and was
convicted of, and completed any sentence received for, the nonviolent
misdemeanor or nonviolent felony at least 15 years prior to the filing of the
petition, it may order that such person be restored, in the contemplation of
the law, to the status the person occupied before such arrest or indictment or
information. section; and if convicted of a nonviolent felony, the
petition was not filed any earlier than 10 years after the date of conviction or
the completion of any active sentence, period of probation, and post‑release
supervision, whichever occurs later, or if convicted of a nonviolent
misdemeanor, the petition was not filed any earlier than five years after the
date of conviction or the completion of any active sentence, period of
probation, and post‑release supervision, whichever occurs later. If
the court denies the petition, the order shall include a finding as to the
reason for the denial."
SECTION 2. G.S. 15A‑146 reads as rewritten:
"§ 15A‑146. Expunction of records when charges are dismissed or there are findings of not guilty.
(a) If any person is charged with a crime, either a
misdemeanor or a felony, or was charged with an infraction under G.S. 18B‑302(i)
prior to December 1, 1999, and the charge is dismissed, or a finding of not
guilty or not responsible is entered, that person may apply to the court of the
county where the charge was brought for an order to expunge from all official
records any entries relating to his apprehension or trial. The court shall hold
a hearing on the application and, upon finding that the person had not
previously received an expungement under this section, G.S. 15A‑145,
15A‑145.1, 15A‑145.2, 15A‑145.3, 15A‑145.4, or 15A‑145.5,
and that the person had not previously been convicted of any felony under
the laws of the United States, this State, or any other state, the court shall
order the expunction. No person as to whom such an order has been entered shall
be held thereafter under any provision of any law to be guilty of perjury, or
to be guilty of otherwise giving a false statement or response to any inquiry
made for any purpose, by reason of his failure to recite or acknowledge any
expunged entries concerning apprehension or trial.
(a1) Notwithstanding subsection (a) of this section, if
a person is charged with multiple offenses and all the charges are dismissed,
or findings of not guilty or not responsible are made, then a person may apply
to have each of those charges expunged if the offenses occurred within the same
12‑month period of time or if the charges are dismissed or findings are
made at the same term of court. Unless circumstances otherwise clearly provide,
the phrase "term of court" shall mean one week for superior court and
one day for district court. There is no requirement that the multiple offenses
arise out of the same transaction or occurrence or that the multiple offenses
were consolidated for judgment. The court shall hold a hearing on the
application. If the court finds (i) that the person had not previously
received an expungement under this subsection, or that any previous expungement
received under this subsection occurred prior to October 1, 2005 and was for an
offense that occurred within the same 12‑month period of time, or was
dismissed or findings made at the same term of court, as the offenses that are
the subject of the current application, (ii) that the person had not previously
received an expungement under G.S. 15A‑145, 15A‑145.1, 15A‑145.2,
15A‑145.3, 15A‑145.4, or 15A‑145.5, and (iii) that the
person had not previously been convicted of any felony under the laws of the
United States, this State, or any other state, the court shall order the
expunction. No person as to whom such an order has been entered shall be held
thereafter under any provision of any law to be guilty of perjury, or to be
guilty of otherwise giving a false statement or response to any inquiry made
for any purpose, by reason of his failure to recite or acknowledge any expunged
entries concerning apprehension or trial.
…
(d) A person charged with a crime that is dismissed
pursuant to compliance with a deferred prosecution agreement or the terms of a
conditional discharge and who files a petition for expunction of a criminal
record under this section section, or a person who files a petition
for a second or subsequent expungement under this section, must pay the
clerk of superior court a fee of one hundred seventy‑five dollars
($175.00) at the time the petition is filed. Fees collected under this
subsection are payable to the Administrative Office of the Courts. The clerk of
superior court shall remit one hundred twenty‑two dollars and fifty cents
($122.50) of each fee to the North Carolina Department of Public Safety for the
costs of criminal record checks performed in connection with processing
petitions for expunctions under this section. The remaining fifty‑two
dollars and fifty cents ($52.50) of each fee shall be retained by the
Administrative Office of the Courts and used to pay the costs of processing
petitions for expunctions under this section. This subsection does not apply to
petitions filed by an indigent."
SECTION 3. G.S. 15A‑151 reads as rewritten:
"§ 15A‑151. Confidential agency files; exceptions to expunction.
(a) The Administrative Office of the Courts shall maintain a confidential file containing the names of those people for whom it received a notice under G.S. 15A‑150. The information contained in the file may be disclosed only as follows:
(1) To a judge of the General Court of Justice of North Carolina for the purpose of ascertaining whether a person charged with an offense has been previously granted a discharge or an expunction.
(2) To a person requesting confirmation of the person's own discharge or expunction, as provided in G.S. 15A‑152.
(3) To the General Court of Justice of North Carolina in response to a subpoena or other court order issued pursuant to a civil action under G.S. 15A‑152.
(4) If the criminal record was expunged pursuant to G.S. 15A‑145.4 or G.S. 15A‑145.5, to State and local law enforcement agencies for employment purposes only.
(5) If the criminal record was expunged pursuant to G.S. 15A‑145.4, 15A‑145.5, or [15A‑]145.6, to the North Carolina Criminal Justice Education and Training Standards Commission for certification purposes only.
(6) If the criminal record was expunged pursuant to G.S. 15A‑145.4, 15A‑145.5, or 15A‑145.6, to the North Carolina Sheriffs' Education and Training Standards Commission for certification purposes only.
(7) If the criminal record was expunged pursuant to a second or subsequent petition under G.S. 15A‑146, to local law enforcement agencies.
(8) If the criminal record was expunged pursuant to a second or subsequent petition under G.S. 15A‑146, to offices of the district attorney.
…."
SECTION 4. This act becomes effective December 1, 2015, and applies to petitions filed on or after that date.