In North Carolina, it is possible to get your record cleaned by petitioning the court for an expungement. But the act of getting your record cleaned is a bit more complicated than just petitioning the court. Below we answer 9 common questions regarding expungement in NC.
What is an expungement?
An expungement is when a judge orders a record sealed so the public cannot see it. The purpose of the expungement is to seal a record as if the charge or conviction had never occurred. While the SBI, and soon prosecutors, can see it, the public cannot.
Will an expungement in NC remove all trace of criminal charges from the internet?
No. The NC expungement process orders that government agencies remove the records from their databases. But you must be diligent if you want it removed from private databases.
Court records are open to the public. So, many private companies download the data to maintain their own records without keeping them updated. Thus, when you get your record expunged under North Carolina law, the court orders a purge of the state system. Yet, the private companies who have the old charges in their database many times do not update their records.
Normally, the specific agency who sold the data to the private company will have an agreement to make the private company update their data under § 15A-152.
But it is hard to track this, and we have had some clients tell us that a private company still showed the record months later.
The expungement attorneys at Dummit Fradin recommend taking some extra steps if you want the extra confidence that the records will not haunt you.
There is no complete solution to this problem of third parties maintaining inaccurate records of your old records. To be as certain as possible that the outdated data is removed from the private databases you can run a background check on yourself and see if anything comes up. Reputable companies will remove arrest and conviction information in a timely manner. Companies that refuse to do so expose themselves to civil and criminal penalties under NCGS § 15A-152.
Can I claim I was never charged after my record is expunged?
Yes. Under North Carolina expungement law, you can state that you have never been charged.
Our statute reads: “No person as to whom an order of expunction has been entered pursuant to this Article shall be held thereafter under any provision of any laws to be guilty of perjury or otherwise giving a false statement by reason of that person’s failure to recite or acknowledge any expunged arrest, apprehension, charge, indictment, information, trial, or conviction in response to any inquiry made of him or her for any purpose other than as provided in subsection (e)… (pursuing a criminal justice certificate)”
How long does it take to expunge my criminal record?
Each expungement request under North Carolina Law must first be submitted to a Judge who will make a special request to the SBI to search their records to confirm that the client does qualify for the expungement and to confirm that the client has never had an expungement before. The time it will take to expunge or seal your criminal record, or rap sheet, largely depends on how quickly the SBI returned their review to the Judge. In many cases, this is taking 3 to 6 months.
The recent changes to the expungement statutes neither the AOC nor the SBI checks are required for expungements, as they used to be, under these statutes. However, under N.C.G.S. §15A-146 (dealing with straight dismissals or Deferred Dismissals) there is still a requirement “upon finding 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.”
We here at Dummit Fradin are pushing to get our client’s expungements done faster. Under the most recent changes, N.C.G.S. §15A-146 alone has a requirement that the court make a finding of no prior felonies. While courts are used to the old AOC forms, and while this court finding could be accomplished by an SBI check, we are now pushing that the court’s finding can now be based upon a verified affidavit from the defendant as the legislature’s recent changes removed the SBI check as a requirement.
Our Firm is working on streamlining the courts’ old process and attempting to get faster expungements. It is our expungement attorneys opinion that an affidavit can now be filed with the petition and the matter could be handled with one appearance rather than two (and the 3-4 month delay waiting on the SBI) and imposing upon the Clerk’s office to track sealed record checks. We will see how the courts treat this in 2019.
Is an expungement in NC guaranteed?
No. It is impossible to guarantee the final decision a Judge will make. But being fully honest with your attorney about any prior record and giving accurate information about your past record can help the process. The expungement attorneys at Dummit Fradin will then be better able to determine your likelihood of success. Even after the court expunges your official record, it may take some time for the data to be removed from private databases.
Can the prosecutor still hold a charge against me if it has been expunged?
Yes, in most cases. While the legislature has made many more charges expungable in recent years, the legislature has also granted the prosecutor much great latitude in viewing and using charges which have been expunged.
Under NCGS § 15A-151.5 after July 1, 2018, the Administrative Office of the Courts shall make all confidential files of expungements electronically available to all prosecutors across North Carolina for a range of charges ranging from Expunction of records for first offenders under the age of 18 at the time of conviction of misdemeanor, and Expunction under G.S. 15A-145.5. of certain misdemeanors and felonies without any age limitation. The prosecutors are even able to see expunction of records when charges are dismissed under G.S. 15A-146(a) and (a1). In many situations, these expunged charges can add points to your record at future sentencing hearings if you commit new crimes.
I was told I could get something removed from my record. Is anything able to be removed?
Too many attorneys have no experience in this area of the law and can give bad advice. Make certain that you pull a copy of your criminal record before you meet with an attorney to help determine if you qualify for very specific different types of expungement in NC. North Carolina has changed its laws multiple times in just the last few years. You need an attorney who stays up to date on these matters.
Who determines the expungement laws in NC?
The North Carolina Legislature makes and passes the laws. If you are concerned that they need to be changed then contact your Representative or Senator. While North Carolina has made some progress in helping make this process more inclusive, we still need the laws to be made more inclusive.
Is an expungement the same as a pardon?
No. To expunge a criminal record and to get a pardon are two completely separate things. A pardon (sometimes called clemency) can only be granted by the Governor. An expungement can be granted only by a Judge.
Have more questions? Meet with an Expungement Attorney in the Triad
Our criminal defense attorneys have experience handling expungement cases since 1990. Discussing your case with our experienced attorneys is an important first step for your future. Call today to schedule your personal case review.