Legal Question in Criminal Law in North Carolina

I am 33 years old and live in Lenoir county NC. I have consulted with several attorneys in the Kinston area and have explained my unique situation. However, none of them that I have talked to seem confident that they can get all of my dismissed charges expunged from my criminal record. So if you can please take the time to offer your expertise I would appreciate it very much, for in the current state of the economy and unemployment rates, this arrest record is most certainly holding me back during the application process for employment. If only we lived in a society where people were actually treated innocent until proven guilty, but I'm sure any potential employer will jump to conclusion based on my arrest record. Although irrelevant from a legal standpoint for the purposes of obtaining this expunction, all of these dismissed charges stem from malicious intent of my manipulative sister and brother-inlaw who moved adjacent to me to "squat" in the family home after having no place else to go; my mother is reluctant to evict her grandchildren and they just refuse to pay rent.

Here are the facts: I have 14 dismissed charges beginning 1\21\10 that span to 4\25\13

I have not ever received an expungement.

I have not ever been arrested or convicted of any felony under the laws of the U.S.,this state or any other state.

The attorneys I have spoken to say that" all the charges have to be within a 12 month period" and reference me to the (lengthy and confusing)first sentence in subsection (a1) of 15a-146. My interpretation of that sentence is that "within the same 12 month period of time" is referring to findings of not guilty or not responsible and does not apply to dismissed charges. When I point this out to them they are willing to take my money but do not seem confident that they can get the expungement of all the charges. I realize that only one expungement is allowed per a lifetime in NC and it is important that I get this right the first time. So my Questions to you are: What do you think lawmakers intended? Are there any legal precedents that support my interpretation? If so could you please cite them in your reply so that I can bring this to an attorney's attention in an effort to minimize the fee that may be incurred from the attorney I hire. Also on side two of the petition under findings of fact no. 4 (which I do understand that is to be filled out by the judge) seems to coincide with my interpretation. I really can not afford an attorney so if my interpretation is correct and I decide to do this without an attorney would I just submit an addendum with the petition so that i could itemize all 14 "offenses" and just type see addendum in the space designated for the charges I wish to expunge?

Below are the links to the form and instructions necessary (AOC-CR-264) to file the petition as well as a link to the statute for your reference. Thank You in advance for any help you can offer.

http://nccourts.org/Forms/Documents/1202.pdf

http://nccourts.org/Forms/Documents/1206.pdf

http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_15A/GS_15A-146.html

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.

(b) The court may also order that the said entries, including civil revocations of drivers licenses as a result of the underlying charge, shall be expunged from the records of the court, and direct all law-enforcement agencies, the Division of Adult Correction of the Department of Public Safety, the Division of Motor Vehicles, and any other State or local government agencies identified by the petitioner as bearing record of the same to expunge their records of the entries, including civil revocations of drivers licenses as a result of the underlying charge being expunged. This subsection does not apply to civil or criminal charges based upon the civil revocation, or to civil revocations under G.S. 20-16.2. The clerk shall notify State and local agencies of the court's order as provided in G.S. 15A-150. The clerk shall forward a certified copy of the order to the Division of Motor Vehicles for the expunction of a civil revocation provided the underlying criminal charge is also expunged. The civil revocation of a drivers license shall not be expunged prior to a final disposition of any pending civil or criminal charge based upon the civil revocation. The costs of expunging the records, as required under G.S. 15A-150, shall not be taxed against the petitioner.

(b1) Any person entitled to expungement under this section may also apply to the court for an order expunging DNA records when the person's case has been dismissed by the trial court and the person's DNA record or profile has been included in the State DNA Database and the person's DNA sample is stored in the State DNA Databank. A copy of the application for expungement of the DNA record or DNA sample shall be served on the district attorney for the judicial district in which the felony charges were brought not less than 20 days prior to the date of the hearing on the application. If the application for expungement is granted, a certified copy of the trial court's order dismissing the charges shall be attached to an order of expungement. The order of expungement shall include the name and address of the defendant and the defendant's attorney and shall direct the SBI to send a letter documenting expungement as required by subsection (b2) of this section.

(b2) Upon receiving an order of expungement entered pursuant to subsection (b1) of this section, the SBI shall purge the DNA record and all other identifying information from the State DNA Database and the DNA sample stored in the State DNA Databank covered by the order, except that the order shall not apply to other offenses committed by the individual that qualify for inclusion in the State DNA Database and the State DNA Databank. A letter documenting expungement of the DNA record and destruction of the DNA sample shall be sent by the SBI to the defendant and the defendant's attorney at the address specified by the court in the order of expungement.

(c) The clerk shall notify State and local agencies of the court's order as provided in G.S. 15A-150. (1979, c. 61; 1985, c. 636, ss. 1-7; 1991, c. 326, s. 1; 1997-138, s. 1; 1999-406, s. 9; 2001-108, s. 2; 2001-282, s. 1; 2002-126, s. 29A.5(c); 2005-452, s. 1; 2007-509, s. 2; 2009-510, s. 5(a), (b); 2009-577, ss. 3.1, 8, 9; 2011-145, s. 19.1(h); 2012-191, s. 4.)

Asked on 8/21/13, 9:44 am

1 Answer from Attorneys

Kenneth Love Ken Love Law
0 users found helpful
0 attorneys agreed

Unfortunately, your interpretation is incorrect. The attorneys you have met with are correct. The 12 month limitation in the statute applies to the entire portion of (a1). I believe you were trying to separate the two based on the comma that appears after "charges are dismissed." Based on how statutes are read, the inclusion of "or" and the second comma after "findings of not guilty or not responsible are made" makes it clear that the 12 month period applies to charges that are dismissed.

I understand your frustration and it is unfortunate that the statute is so restrictive, but this is the current state of the law.

You can meet with these attorneys who will get an expungement for you for all charges within a 12 month period. Anything outside of the period will not typically be removed. What the attorneys may be giving you is the chance that a clerical error is made and they ask for all charges to be dismissed and it is missed and all of the charges are dismissed.

Unfortunately, the intent of the legislature will not help as well. The General Assembly does not keep legislative history as many other states do. This is a reporting/history of each bill that is proposed and passed into law sot hat the Courts could interpret what the legislature meant If the law is unclear...here we don't have the history to use and unfortunately, the law is pretty clear.

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8/22/13, 4:52 am

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