What is Considered a Non-Violent Offense Under North Carolina’s Second Chance Act?

When a person files for and is granted an expungement, they can erase an arrest, criminal charge, and conviction from the public record. In North Carolina, all charges that are expunged become private. When an arrest, criminal charge, or conviction is expunged in North Carolina, a person does not need to disclose it when applying for a job, admission to a university, or an apartment. Expungement, called expunction under North Carolina law, is an important tool to fight the stigma of having a criminal record.

North Carolina’s General Assembly passed SB 562, the Second Chance Act. This law expanded the eligibility for who can apply for expungement, what types of crimes can be expunged, and the number of convictions that may be expunged in North Carolina. The legislation expands the opportunity for a person to expunge older convictions of “nonviolence” felonies who meet other eligibility conditions.

The Second Chance Act has authorized the expunction of older convictions of “nonviolent” offenses, defined as charges that do not fall into several named categories. This may seem simple, but the change requires some explanation. A nonviolent offense does not include a Class A through G felony or a Class A1 misdemeanor. Additionally, a nonviolent offense does not include one of several listed offenses, including impaired driving.

Including impaired driving in the list of excluded offenses created an unexpected barrier in 2020 when the General Assembly expanded the relief available under the Second Chance Act by expanding expunctions for misdemeanor convictions from different court sessions.

Previously, an individual could only expunge multiple misdemeanor convictions from the same court session. By making this change, the legislature added a provision denying expunctions of misdemeanor convictions from different court sessions when the individual has any other convictions that were not nonviolent.

The legislature also disqualified this type of conviction for the existing opportunity to expunge a single “nonviolent” felony conviction. Consequently, a person with an impaired driving conviction could not expunge other convictions because the impaired driving conviction was not nonviolent.

No, the Second Chance Act specifically states that impaired driving is not considered a nonviolent offense. The legislature included a new subsection (a1), stating that an impaired driving offense (DWI) is not eligible for an expunction in North Carolina. As a result, a conviction for impaired driving still cannot be expunged. The law also states that an impaired driving conviction is categorized within the “traffic offense” exception to prior convictions prohibiting a person from obtaining an expunction of other convictions.

The new requirements for expunging multiple felony convictions are even more complicated. The law allows for the expunction of a conviction of a single nonviolent felony. Previously, North Carolina law allowed the expunction of up to three convictions of nonviolent felonies from different court sessions. However, a person must wait 10 years to expunge a single nonviolent felony conviction. The 10-year waiting period started on the later of the conviction date or the date of completing an active sentence, probation, or post-release supervision.

Under the new provisions of the Second Chance Act, a person must wait 20 years to expunge two or three convictions for nonviolent felonies. The waiting time starts on the later date of the most recent conviction or the completion date of an active sentence, probation, or post-release supervision for the convictions.

To expunge a single nonviolent felony conviction, a person may not have a misdemeanor conviction other than for a traffic offense that occurred during the five years before filing the petition for expunction. This is a new provision; previously, a person could not have a misdemeanor conviction other than a traffic offense during the entire 10-year waiting period. Other types of convictions can count as disqualification.

A person may not have any convictions, during or after the waiting period, for a misdemeanor that is not classified as nonviolent or for any other type of felony charge. Likewise, to expunge two or three nonviolent felony convictions, an individual must not have a misdemeanor conviction other than for a traffic offense during the five years before the petition.

If you have questions about whether you have a right to an expunction in North Carolina, do not hesitate to contact Arnold & Smith, PLLC, to schedule a complimentary case evaluation.