Bill Text: NC H1115 | 2015-2016 | Regular Session | Amended
Bill Title: Automatic Expunction/Wrongful Conviction
Spectrum: Strong Partisan Bill (Democrat 21-2)
Status: (Introduced - Dead) 2016-05-11 - Ref to the Com on Judiciary IV, if favorable, Appropriations [H1115 Detail]
Download: North_Carolina-2015-H1115-Amended.html
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2015
H 1
HOUSE BILL 1115
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Short Title: Automatic Expunction/Wrongful Conviction. |
(Public) |
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Sponsors: |
Representatives Hanes and Bryan (Primary Sponsors). For a complete list of sponsors, refer to the North Carolina General Assembly web site. |
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Referred to: |
Judiciary IV, if favorable, Appropriations |
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May 11, 2016
A BILL TO BE ENTITLED
AN ACT to provide for the automatic expunction of a person's record if the person is wrongly convicted, incarcerated, and later cleared of the charge or if the charges against a person are dismissed or there are findings of not guilty AND TO APPROPRIATE FUNDS TO THE ADMINISTRATIVE OFFICE OF THE COURTS TO HELP IMPLEMENT THIS ACT.
The General Assembly of North Carolina enacts:
SECTION 1. Article 5 of Chapter 15A of the General Statutes is amended by adding a new section to read:
"§ 15A‑149A. Expunction of records when person is wrongly convicted and later cleared.
(a) If any person is wrongly convicted and incarcerated, but later is discharged from prison as a result of a successful appeal, motion for appropriate relief, or writ of habeas corpus, the reviewing court that determined the person was wrongfully convicted and ordered the person be discharged from prison shall also enter an order to expunge from all official records any entries relating to the person's apprehension, charge, or trial as provided by this section.
(b) If any person is wrongly convicted and incarcerated, but later is discharged from prison as a result of a determination by the North Carolina Innocence Inquiry Commission that the person is innocent, the three‑judge panel that determined the person's innocence and entered the dismissal of the charges shall also enter an order to expunge from all official records any entries relating to the person's apprehension, charge, or trial as provided by this section.
(c) The order of expunction shall include an instruction that any entries relating to the person's apprehension, charge, or trial 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, or any other State or local government agencies identified by the petitioner as bearing record of the same to expunge their records of the entries. The clerk shall notify State and local agencies of the court's order as provided in G.S. 15A‑150. The expunction shall be automatic and the person shall not be required to file a petition for the expunction. The costs of expunging the records, as required under G.S. 15A‑150, shall not be taxed against the petitioner.
(d) No person as to whom such an order has been entered under this section 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 the person's failure to recite or acknowledge any expunged entries concerning apprehension, charge, or trial."
SECTION 2. G.S. 15A‑146 reads as rewritten:
"§ 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 the
court entering the dismissal, or finding of not guilty or not responsible shall
also enter an order to expunge from all official records any entries
relating to his the person's 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 shall
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 When a person
entitled to expungement under this section has his or her case 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. Databank, the court shall also
enter an order to expunge the DNA record and DNA sample. The order of
expungement shall include the name and address of the defendant and the
defendant's attorney and shall direct the North Carolina State Crime Laboratory
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 North Carolina State Crime Laboratory 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 North Carolina State Crime Laboratory 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.
(d) A The court
shall also automatically enter an order for expunction under this section for a
person charged with a crime that is dismissed pursuant to compliance with a
deferred prosecution agreement or the terms of a conditional discharge and
who files a petition for expunction of a criminal record under this section
must pay the clerk of superior court a fee of one hundred seventy‑five
dollars ($175.00) at the time the petition is filed. Fees collected under this
subsection are payable to the Administrative Office of the Courts. The clerk of
superior court shall remit one hundred twenty‑two dollars and fifty cents
($122.50) of each fee to the North Carolina Department of Public Safety for the
costs of criminal record checks performed in connection with processing
petitions for expunctions under this section. The remaining fifty‑two
dollars and fifty cents ($52.50) of each fee shall be retained by the
Administrative Office of the Courts and used to pay the costs of processing
petitions for expunctions under this section. This subsection does not apply to
petitions filed by an indigent.discharge.
(e) Notwithstanding any other provision of this section, the arrest records of a person charged with any of the following offenses shall not be expunged even though the case may be dismissed or a finding of not guilty or not responsible is entered on behalf of the defendant:
(1) An offense under Article 7B of Chapter 14 of the General Statutes.
(2) An offense under G.S. 50B‑4.1(d)."
SECTION 3. There is appropriated from the General Fund to the Judicial Department to be allocated to the Administrative Office of the Courts the sum of ten thousand dollars ($10,000) to assist with the cost of implementing this act.
SECTION 4. Sections 3 and 4 of this act become effective July 1, 2016. The remainder of this act becomes effective December 1, 2016.
