The most common question I get during criminal consults is “Will this charge be on my record?” or, “Can I expunge my criminal charge?” There is a common misconception that a charge, even if dismissed, does not appear on a criminal record check. As a result, I often explain the process of removing criminal charges from someone’s record, also known as an expunction (or expungement), during my initial client consultations.
The short answer is: if you receive a criminal charge, it appears on your criminal record, even if it was dismissed by the district attorney. The main difference is the outcome listed under the verdict; whether you plead guilty, were found not guilty, or the case was dismissed.
The most common way to remove the charge from your criminal record is to get it expunged. An expunction is a legal process where the charge is cleared from the government systems. The process and eligibility is governed through statute, and only certain charges and outcomes are eligible. In North Carolina there are 17 different avenues for expunctions. Each avenue applies to different charges and has different requirements. The most common types of expungements I have filed are: (1) Misdemeanor Conviction Under 18 (N.C.G.S. 15A-145) and (2) Charges Not Resulting in Conviction (N.C.G.S. 15A-146).
First, eligibility under North Carolina General Statute 15A-145 requires:
- A applicant who has a misdemeanor conviction before the age of 18 or conviction of misdemeanor possession of alcohol committed before the age of 21;
- Has no previous misdemeanor or felony convictions, other than traffic violations,
- No subsequent misdemeanor or felony convictions, other than traffic violation with a two year waiting period,
- At least two years have passed since the date of conviction, and
- The applicant has fully completed his or her sentence.
Additional requirements include $175 filing fee and an affidavit of good behavior from the applicant and two other individuals not related to the applicant. If all requirements are met, the petition must be granted and the eligible charges are expunged. To view the full statute, click here.
Second, to be eligible under North Carolina General Statute 15A-146 the following requirements must be met:
- The felony or misdemeanor charge was disposed of by a dismissal, finding of not guilty, or not responsibility,
- Applicant has not been convicted of a felony, and
- Applicant has not otherwise received an expunction listed in the statue.
If the applicant meets the aforementioned requirements the court must grant the petition. There is not a filing fee unless the dismissal occurred as a result of a deferred prosecution or other conditional discharge program. To view this full statute, click here.
The petition for expunction must be filed in the county in which the charges were disposed of. The expunction process is not immediate and generally takes anywhere from six months to a year to take effect. Additionally, the petition must be served on the District Attorney and notice must be given to the arresting offices. Thus, it is important to speak with an attorney in the county in which the charges occurred to make sure the proper procedure is followed and the paperwork is completed correctly.