Bill Summary for S 445 (2017-2018)

Summary date: 

Mar 29 2017

Bill Information:

View NCGA Bill Details2017-2018 Session
Senate Bill 445 (Public) Filed Tuesday, March 28, 2017
AN ACT TO STANDARDIZE THE FILING PROCEDURES FOR EXPUNGEMENTS, TO AUTHORIZE PROSECUTORS ACCESS TO CERTAIN RECORDS OF EXPUNGEMENT, TO ALLOW CERTAIN EXPUNGED CRIMINAL ACTS TO BE CONSIDERED IN CALCULATING PRIOR RECORD LEVELS DURING SENTENCING FOR SUBSEQUENT OFFENSES, AND TO MAKE OTHER MODIFICATIONS TO THE EXPUNGEMENT PROCESS.
Intro. by Tucker, Bryant, McKissick.

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Bill summary

Amends GS Chapter 15A, Article 5 (Expunction of Records), as follows.

Amends GS 15A-145 (Expunction of records for first offenders under the age of 18 at the time of conviction of misdemeanor; expunction of certain other misdemeanors), GS 15A-145.1 (Expunction of records for first offenders under the age of 18 at the time of conviction of certain gang offenses), GS 15A-145.2 (Expunction of records for first offenders not over 21 years of age at the time of the offense of certain drug offenses), GS 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), GS 15A-145.4 (Expunction of records for first offenders who are under 18 years of age at the time of the commission of a nonviolent felony), GS 15A-145.5 (Expunction of certain misdemeanors and felonies; no age limitation), and GS 15A-145.6 (Expunctions for certain defendants convicted of prostitution) to direct persons who seek expunction of criminal offenses under these statutes to file their petitions for expunction with the clerk of superior court of the county where they were convicted. Directs the clerk to obtain the authorizing signature of the judge then presiding, and to forward the application to the Department of Public Safety and the Administrative Office of the Courts. Provides that the protection against perjury for failing to disclose offenses expunged under these statute does not apply to sentencing hearings for subsequent criminal offenses.

Further amends GS 15A-145.2 (expunctions for certain drug offenses), and GS 15A-145.3 (expunctions for certain toxic vapors offenses) to direct that the documents listed in subsection (a) are to be attached to the petition for expunction, not the application. Deletes the provisions that make canceled judgments of conviction and expunged records under this section not considered a conviction for the purpose of additional penalties imposed for repeat offenses under the North Carolina Controlled Substances Act. Provides that such canceled convictions and expunged records are not to be deemed a conviction except as provided in GS 15A-151.5 (Confidential agency files; exceptions to expunction).

Further amends GS 15A-145.2 (expunctions for certain drug offenses) to direct the court to order the Department of Public Safety, instead of the Department of Correction, in addition to the other listed agencies, to expunge their records of conviction.

Further amends GS 15A-145.5 (certain misdemeanors and felonies; no age limitation) to allow a petition for expunction to be filed 10 years after the date of conviction for a nonviolent felony, and five years after the date of conviction for a nonviolent misdemeanor (currently, 15 years after for both). Provides that expunction under this statute restores a person to the status they occupied before such arrest or indictment or information, except as provided in GS 15A-151.5.

Amends GS 15A-146 (Expunction of records when charges are dismissed or there are findings of not guilty). Separates provisions concerning a person whose charges are dismissed and provisions concerning a person who is found not guilty or responsible into two different subsections. Provides that persons who are charged with crimes, and the charge is dismissed, or they are found not guilty or not responsible for the crimes, may file a petition with the clerk of superior court of the county where the charge was brought to expunge all official records of entries relating to apprehension or trial. Directs the court to hold a hearing on the petition, and to grant the petition if the petitioner has not previously been convicted of any felony. Provides that failure to disclose the charge may not be considered perjury or otherwise giving a false statement. Eliminates the provision requiring a person seeking expunction under this statute to have not previously received an expunction. Allows a person charged with multiple offenses where the charges are dismissed, or findings of not guilty or responsible are made, to petition to have each of the charges expunged, regardless of the timing between the offenses.

Further amends GS 145-146 (Expunction for dismissed charges or findings of not guilty), GS 15A-147 (Expunction of records when charges are dismissed or there are findings of not guilty as a result of identity theft or mistaken identity), and GS 15A-148 (Expunction of DNA records when charges are dismissed on appeal or pardon of innocence is granted). Directs applicants for expunction under these statutes to petition the clerk of superior court of the county where the charge was last pending. Directs that petitions for expunction under these statutes are to be on a form approved by the Administrative Office of Courts.

Amends GS 15A-149 (Expunction of records when pardon of innocence is granted). Directs applicants for expunction under this statute to do so by petitioning the clerk of superior court. Directs the clerk to forward the petition to the Administrative Office of the Courts.

Amends GS 15A-150 (Notification requirements). Directs the clerks of superior court to file petitions received under this Article and any orders of expunction with the Administrative Office of Courts as soon as practicable after each term of court. Directs the clerk to send a certified copy of expunction orders to the person receiving the expunction, the Department of Public Safety, Division of Adult Correction and Juvenile Justice, the North Carolina State Bureau of Investigation, and any other identified State or local agency identified by the petition as having records of the expunged offense in addition to those already requested to be notified. Directs agencies receiving an expunction order to purge (currently, expunge) records as currently provided. Directs the State Bureau of Investigation to forward the expunction order to the Federal Bureau of Investigation.

Amends GS 15A-151 (Confidential agency files; exceptions to expunction). Directs the Administrative Office of the Courts to maintain a confidential file for expungements containing the petitions granted under this Article. Amends the list of persons and agencies who may view the confidential files to include district attorneys in accordance with new GS 15A-151.5. Provides that the information in the file may only be disclosed to the currently authorized persons and entities upon their request. Authorizes a person to seek confirmation of their own discharge or expunction (was, in accordance with GS 15A-152).

Enacts new GS 1A-151.5 (Prosecutor access to expunged files). Directs the Administrative Office of the Courts to make all confidential files maintained under GS 15A-151 electronically available to all State prosecutors for criminal records expunged on or after December 1, 2017, under the following: (1)GS 15Aäóï145, expunction of records for first offenders under the age of 18 at the time of conviction of misdemeanor; expunction of certain other misdemeanors; (2) GS15Aäóï145.1, expunction of records for first offenders under the age of 18 at the time of conviction of certain gang offenses; (3) GS 15Aäóï145.2, expunction of records for first offenders not over 21 years of age at the time of the offense of certain drug offenses; (4) GS15Aäóï145.3, expunction of records for first offenders not over 21 years of age at the time of the offense of certain toxic vapors offenses; (5) GS15Aäóï145.4, expunction of records for first offenders who are under 18 years of age at the time of the commission of a nonviolent felony; (6) GS15Aäóï145.5, expunction of certain misdemeanors and felonies; no age limitation; (7) GS15Aäóï145.6, expunctions for certain defendants convicted of prostitution; (8) GS15Aäóï146(a), expunction of records when charges are dismissed or there are findings of not guilty; and (9) GS15Aäóï146(a1). Expunction of records when charges are dismissed or there are findings of not guilty.Provides that offenses expunged under certain listed expunction statutes may be used to calculate prior record levels if the named person is convicted of a subsequent criminal offense, and shall be prima facie evidence of the expunged conviction.

Effective December 1, 2017, and applies to petitions filed on or after that date.

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