According to the National Center for Transgender Equality (bit.ly/2RzzqCm), almost half of Black transgender people have been incarcerated at some point in their lives. And with new anti-LGBTQ laws being proposed every year, queer and gender nonconforming folks will continue to have disproportionate run-ins with the criminal legal system. North Carolina has several expunction statutes that allow folks to erase things from their criminal record. Thanks to efforts by coalitions like the N.C. Second Chance Alliance (ncsecondchance.org), our expunction laws continue to expand to provide relief for more people.
This is great news for the 25 percent of adults in our state with criminal records. That said, most folks don’t have the time or patience to wade through a bunch of statutes to figure out whether any of them apply to your specific situation.
Generally, the big categories of things you can get off your record are any charges that were dismissed or where you were found not guilty, a first-time conviction of a nonviolent felony and certain nonviolent misdemeanors.
Dismissed charges are pretty easy. Anything that shows up as dismissed or not guilty on your record can be removed. The judge has to grant your expunction if everything on your record falls into these categories. If you have a mix of dismissals/not guilty and convictions, the judge can decide whether to grant your expunction. Fill out the form called AOC-CR-287, and take it to the clerk of court in each county you have dismissed charges.
You can get one nonviolent felony conviction removed from your record. This means you can’t have been convicted of more than one felony. This includes anything you were convicted of outside of North Carolina. You also can’t have been convicted of any violent (generally* meaning A1) misdemeanors. Nonviolent felonies are generally* class H or I felonies, things like embezzlement and credit card fraud. Anything that involves assault, meth, heroin and possession with intent to sell or deliver cocaine are all considered violent. You have to wait 10 years from the end of your sentence to ask for an expunction.
The form you need to fill out is called AOC-CR-281. You also need to include two statements from people who aren’t related to you that say you are a good person. These statements have to be signed in front of a notary. You also have to write a statement saying that you are of good moral character, haven’t had any convictions other than traffic violations during the the 10-year waiting period, don’t have any outstanding restitution orders and that the “Petition is a motion in the cause”. You’ll need to sign this statement in front of a notary. There is a $175 fee to request this kind of expunction. If you can’t afford that, you can fill out form AOC-G-106 to ask to not pay.
Nonviolent misdemeanors include everything except class A1 misdemeanors. Anything that involves assault is considered violent. You have to wait five years from the end of your sentence, which includes probation and paying all your fines and fees. You can have multiple misdemeanors expunged if they were all taken care of at the same time. The waiting period for multiple misdemeanors is seven years.
The forms, additional statements and fee are the same as for nonviolent felonies. Unlike with felony convictions where the judge can decide whether to give you an expunction, once you’ve turned in all the correct forms, the judge is required to remove your misdemeanor convictions.
There are many other things you can get expunged based on very specific situations, particularly related to drug crimes and youthful offenses. There are also many little details related to each of the categories above. The N.C. Justice Center (bit.ly/33qkKZ0) has a very lengthy guide that covers everything you’d ever want to know about getting an expunction. The Southern Coalition for Social Justice also has a DIY toolkit (bit.ly/33tfIed) that’s written more for the general public.
*Lawyers are required to tell everyone who isn’t their client that we can only provide legal information, not advice, under threat that we might reveal secrets that put us out of a job. It is always a good idea to discuss your specific situation with a trusted professional and to not rely on information you read on the internet written by a stranger.
Ali Nininger-Finch is the lawyer behind Affirming Legal Services (affirminglegalservices.com). She believes in helping folks navigate the legal system to live their authentic lives. Her focus areas are name and gender marker changes, expunctions, and nonprofit and small business startup issues.
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