§ 15A-145.3. Expunction of records for first offenders not over 21 years of age at the time of the offense of certain toxic vapors offenses. - North Carolina Statutes

§ 15A‑145.3.  Expunctionof records for first offenders not over 21 years of age at the time of theoffense of certain toxic vapors offenses.

(a)        Whenever a personis discharged and the proceedings against the person dismissed under G.S. 90‑113.14(a)or (a1), such person, if he was not over 21 years of age at the time of theoffense, may apply to the court for an order to expunge from all officialrecords (other than the confidential file to be retained by the AdministrativeOffice of the Courts under G.S. 90‑113.14(c)) all recordation relating tohis arrest, indictment or information, trial, finding of guilty, and dismissaland discharge pursuant to this section. The applicant shall attach to theapplication the following:

(1)        An affidavit by theapplicant that he has been of good behavior during the period of probationsince the decision to defer further proceedings on the misdemeanor in questionand has not been convicted of any felony or misdemeanor other than a trafficviolation under the laws of the United States or the laws of this State or anyother state;

(2)        Verified affidavitsby two persons who are not related to the applicant or to each other by bloodor marriage, that they know the character and reputation of the petitioner inthe community in which he lives, and that his character and reputation aregood;

(3)        Affidavits of theclerk of superior court, chief of police, where appropriate, and sheriff of thecounty in which the petitioner was convicted, and, if different, the county ofwhich the petitioner is a resident, showing that the applicant has not beenconvicted of a felony or misdemeanor other than a traffic violation under thelaws of this State at any time prior to the conviction for the misdemeanor inquestion or during the period of probation following the decision to deferfurther proceedings on the misdemeanor in question.

The judge to whom the petitionis presented is authorized to call upon a probation officer for any additionalinvestigation or verification of the petitioner's conduct during theprobationary period deemed desirable.

If the court determines, afterhearing, that such person was discharged and the proceedings against himdismissed and that he was not over 21 years of age at the time of the offense,it shall enter such order. The effect of such order shall be to restore suchperson in the contemplation of the law to the status he occupied before sucharrest or indictment or information. No person as to whom such order wasentered shall be held thereafter under any provision of any law to be guilty ofperjury or otherwise giving a false statement by reason of his failures torecite or acknowledge such arrest, or indictment or information, or trial inresponse to any inquiry made of him for any purpose.

The court shall also orderthat said conviction and the records relating thereto be expunged from therecords of the court and direct all law enforcement agencies bearing records ofthe same to expunge their records of the conviction. The clerk shall forward acertified copy of the order to the sheriff, chief of police, or other arrestingagency, as appropriate, and the sheriff, chief of police, or other arrestingagency, as appropriate, shall forward such order to the State Bureau ofInvestigation with a form supplied by the State Bureau of Investigation. TheState Bureau of Investigation shall forward the court order in like manner tothe Federal Bureau of Investigation.

(b)        Whenever any personis charged with a misdemeanor under Article 5A of Chapter 90 of the GeneralStatutes or possessing drug paraphernalia as prohibited by G.S. 90‑113.22,upon dismissal by the State of the charges against him or upon entry of a nolleprosequi or upon a finding of not guilty or other adjudication of innocence,such person may apply to the court for an order to expunge from all officialrecords all recordation relating to his arrest, indictment or information, andtrial. If the court determines, after hearing that such person was not over 21years of age at the time the offense for which the person was charged occurred,it shall enter such order. No person as to whom such order has been enteredshall be held thereafter under any provision of any law to be guilty of perjuryor otherwise giving a false statement by reason of his failures to recite oracknowledge such arrest, or indictment or information, or trial in response toany inquiry made of him for any purpose.

(c)        Whenever any personwho has not previously been convicted of an offense under Article 5 or 5A ofChapter 90 of the General Statutes or under any statute of the United States orany state relating to controlled substances included in any schedule of Article5 of Chapter 90 of the General Statutes or to that paraphernalia included inArticle 5B of Chapter 90 of the General Statutes pleads guilty to or has beenfound guilty of a misdemeanor under Article 5A of Chapter 90 of the GeneralStatutes, the court may, upon application of the person not sooner than 12months after conviction, order cancellation of the judgment of conviction andexpunction of the records of his arrest, indictment or information, trial, andconviction. A conviction in which the judgment of conviction has been cancelledand the records expunged pursuant to this subsection shall not be thereafterdeemed a conviction for purposes of this subsection or for purposes ofdisqualifications or liabilities imposed by law upon conviction of a crime,including the additional penalties imposed for second or subsequent convictionsof violation of Article 5A of Chapter 90 of the General Statutes. Cancellationand expunction under this subsection may occur only once with respect to anyperson. Disposition of a case under this subsection at the district courtdivision of the General Court of Justice shall be final for the purpose ofappeal.

The granting of an applicationfiled under this subsection shall cause the issue of an order to expunge fromall official records (other than the confidential file to be retained by theAdministrative Office of the Courts under G.S. 90‑113.14(c)) allrecordation relating to his arrest, indictment or information, trial, findingof guilty, judgment of conviction, cancellation of the judgment, and expunctionof records pursuant to this subsection.

The judge to whom the petitionis presented is authorized to call upon a probation officer for additionalinvestigation or verification of the petitioner's conduct since conviction. Ifthe court determines that the petitioner was convicted of a misdemeanor underArticle 5A of Chapter 90 of the General Statutes, or for possessing drugparaphernalia as prohibited by G.S. 90‑113.22, that he was not over 21years of age at the time of the offense, that he has been of good behaviorsince his conviction, that he has successfully completed a drug educationprogram approved for this purpose by the Department of Health and HumanServices, and that he has not been convicted of a felony or misdemeanor otherthan a traffic violation under the laws of this State at any time prior to orsince the conviction for the misdemeanor in question, it shall enter an orderof expunction of the petitioner's court record. The effect of such order shallbe to restore the petitioner in the contemplation of the law to the status heoccupied before such arrest or indictment or information or conviction. Noperson as to whom such order was entered shall be held thereafter under anyprovision of any law to be guilty of perjury or otherwise giving a falsestatement by reason of his failures to recite or acknowledge such arrest, orindictment or information, or conviction, or trial in response to any inquirymade of him for any purpose. The judge may waive the condition that thepetitioner attend the drug education school if the judge makes a specificfinding that there was no drug education school within a reasonable distance ofthe defendant's residence or that there were specific extenuating circumstanceswhich made it likely that the petitioner would not benefit from the program ofinstruction.

The court shall also order alllaw enforcement agencies bearing records of the conviction and records relatingthereto to expunge their records of the conviction. The clerk shall forward acertified copy of the order to the sheriff, chief of police, or other arrestingagency, as appropriate, and the arresting agency shall forward the order to theState Bureau of Investigation with a form supplied by the State Bureau ofInvestigation. The State Bureau of Investigation shall forward the court orderin like manner to the Federal Bureau of Investigation.

The clerk of superior court ineach county in North Carolina shall, as soon as practicable after each term ofcourt in his county, file with the Administrative Office of the Courts thenames of those persons whose judgments of convictions have been cancelled andexpunged under the provisions of this subsection, and the Administrative Officeof the Courts shall maintain a confidential file containing the names ofpersons whose judgments of convictions have been cancelled and expunged. Theinformation contained in the file shall be disclosed only to judges of theGeneral Court of Justice of North Carolina for the purpose of ascertainingwhether any person charged with an offense under Article 5A of Chapter 90 ofthe General Statutes has been previously granted cancellation and expunction ofa judgment of conviction pursuant to the terms of this subsection.  (2009‑577, s. 3.)