Restoration of Rights & Record Relief
Last updated: October 5, 2022
I. Loss & restoration of civil/firearms rights
A. Civil rights
Civil rights are lost upon conviction of a felony. N.C. Const. art. VI, § 2(3) (“No person adjudged guilty of a felony against this State or the United States, or adjudged guilty of a felony in another state that also would be a felony if it had been committed in this State, shall be permitted to vote unless that person shall be first restored to the rights of citizenship in the manner prescribed by law.); id. § 8 (office); N.C. Gen. Stat. § 9-3 (jury).
All rights are automatically restored upon “unconditional discharge” of sentence or unconditional pardon. N.C. Gen. Stat. § 13-1. This language has been interpreted to include payment of all court debt, a barrier to voting ruled unconstitutional under the State constitution in September, 2020, that is the subject of ongoing litigation.1 The agency releasing the prisoner (or probationer) must file a certificate evidencing unconditional discharge and restoration of the rights of citizenship with the court in the county of conviction (North Carolina state offenses) or the county of residence (for offenses under federal law or the law of another state). § 13-2.
People convicted of a felony may not possess firearms. N.C. Gen. Stat. § 14-415.1(a). Those convicted of antitrust violations, unfair trade practices, or restraints of trade are exempt from this prohibition. § 14-415.1(e). Firearms rights may be restored by a pardon. § 14-415.1(d). In addition, individuals who have lived in North Carolina for at least one year, who have a single non-violent felony conviction and no violent misdemeanors, may petition the court in their county of residence twenty years after their civil rights were restored for restoration of firearms rights under North Carolina state law. § 14-415.4.2 Persons with qualifying out-of-state or federal convictions may petition the court in the district where they reside “only if the person’s civil rights, including the right to possess a firearm, have been restored, pursuant to the law of the jurisdiction where the conviction occurred, for a period of at least 20 years.” Id.
People with North Carolina state convictions are also subject to the parallel firearms dispossession provision in federal law, 18 U.S.C. § 922(g)(1). The federal bar may be avoided if their convictions are pardoned, set-aside, or expunged, or if their civil rights have been restored, unless the relief “expressly provides” that they “may not” possess firearms. See 18 U.S.C. §§ 921(a)(20), (a)(33). Automatic restoration of civil rights is effective to remove federal gun dispossession, see Caron v. United States, 524 U.S. 308 (1998), but many other questions about the effect given state relief mechanisms under these two sections remain unresolved.3 The only relief available to people with federal convictions is a presidential pardon. See Beecham v. United States, 511 U.S. 368 (1994). For an overview of the relationship between state and federal firearms dispossession laws, see the 50-state comparison chart on Loss & Restoration of Civil/Firearms Rights, https://ccresourcecenter.org/state-restoration-profiles/chart-1-loss-and-restoration-of-civil-rights-and-firearms-privileges/.
C. Guides to state relief and collateral consequences
Professor John Rubin of the School of Government at the University of North Carolina has compiled a comprehensive guide to judicial and other relief mechanisms under state law. It includes specialized relief provisions applicable to sex offender registration and firearms, as well as drug and juvenile offenses. See Relief from a Criminal Conviction: A Digital Guide to Expunctions, Certificates of Relief, and Other Procedures in North Carolina (2021 edition), https://www.sog.unc.edu/resources/microsites/relief-criminal-conviction. See also Professor Rubin’s blog post about 2021 amendments to the expungement statutes. https://nccriminallaw.sog.unc.edu/2021-changes-to-north-carolinas-expunction-laws/. Professor Rubin is also principally responsible for North Carolina’s on-line compilation of collateral consequences, which like his Relief Guide is available at no cost to the public. See Collateral Consequences Assessment Tool (C-CAT), http://ccat.sog.unc.edu/.
II. Pardon policy & practice
The governor’s power is unlimited, subject only to regulations in the manner of applying. N.C. Const. art. III, § 5(6). The legislature has enacted only two procedural limitations on the governor’s power. See N.C. Gen. Stat. § 147-21 (all applications must be submitted to the governor in writing, and accompanied by a statement of reasons and a copy of the indictment, verdict, and judgment) and N.C. Gen. Stat. § 147–16(a)(1)(The governor is required to retain “[a] register of all applications for pardon, or for commutation of any sentence, with a list of the official signatures and recommendations in favor of such application.”). ” See News & Observer Publishing Co. v. Easley, 182 N.C. App. 146, 41 S.E. 2d 698 (N.C. App. 2007). The Post Release Supervision and Parole Commission has authority to assist the governor in exercising his pardon power and in his responsibility to perform such services as he requires in connection therewith. N.C. Gen. Stat. § 143B-720(a).
There is a five-year waiting period from the date of release from supervision, which may be reduced if a specific need is shown. Persons convicted under federal law or another state’s laws are not eligible to apply for a gubernatorial pardon. There is a three-year wait to reapply after denial.
According to the website of the Governor’s Clemency Office (Office of Executive Clemency or “OEC”), there are three types of pardon in North Carolina: pardon of forgiveness (“granted with certain conditions,” but useful in seeking employment); pardon of innocence (“granted when an individual has been convicted and the criminal charges are subsequently dismissed”); and unconditional pardon (“granted primarily to restore an individual’s right to own or possess a firearm”). See http://www.doc.state.nc.us/clemency/glossary.htm. A pardon does not expunge or erase a criminal record; however, a person who receives a pardon of innocence may petition the court in which he was convicted for an expunction of records pursuant to N.C. Gen. Stat. § 15A-149.
N.C. Gen. Stat. § 147-21 provides that all applications must be submitted to the governor in writing, and accompanied by a statement of reasons and a copy of the indictment, verdict, and judgment. The governor is also required to retain “[a] register of all applications for pardon, or for commutation of any sentence, with a list of the official signatures and recommendations in favor of such application.” N.C. Gen.Stat. § 147–16(a)(1). The OEC processes the requests, oversees and coordinates investigations by the Parole Commission, and prepares reports. All applicants for clemency, with details of their offense, are listed on OEC’s website: http://www.doc.state.nc.us/clemency/pardons.htm. By statute OEC must notify the victim that it is considering a grant of clemency; that the victim has the right to present a written statement that OEC will consider before clemency is granted; and of the decision that is made. N.C. Gen. Stat. § 15A-838. By executive order the DA in the county of conviction also must be notified of, and given the opportunity to comment upon, an application for clemency. For a further description of the process see http://www.cga.ct.gov/2009/rpt/2009-R-0201.htm.
E. Frequency of grants
Pardons in recent years have been rare – only sixteen pardons have been granted since 2001, all of which were granted for innocence.3 Pardon applications average about 150 annually. Recommendations are submitted by governor’s clemency staff to the governor’s legal counsel. In the past, governors granted pardons fairly regularly, but there have been no “forgiveness” pardons since 2001. Source: Governor’s Office of Executive Clemency.
Governor’s Clemency Office
III. Expungement, sealing & other record relief
NOTE: Professor John Rubin’s Guide to Relief Mechanisms, noted in Part I above, contains a wealth of current information about state expungement and sealing authorities. See Relief from a Criminal Conviction: A Digital Guide to Expunctions, Certificates of Relief, and Other Procedures in North Carolina (2021 edition), https://www.sog.unc.edu/resources/microsites/relief-criminal-conviction. This indispensable Guide catalogues and analyzes state expungement provisions, including specialized relief provisions applicable to sex offender registration and firearms, as well as drug and juvenile offenses. See also Prof. Rubin’s blog post about 2021 amendments to the expungement statutes. https://nccriminallaw.sog.unc.edu/2021-changes-to-north-carolinas-expunction-laws
A. Nonviolent felonies and misdemeanors
The 2020 Second Chance Act (S562) broadened North Carolina’s expungement law, authorizing for the first time expungement of more than one non-violent misdemeanor, and reducing misdemeanor waiting periods. A single non-violent felony is eligible after a 10-year waiting period running from completion of sentence, including any period of probation or parole (which includes payment of fines and other court costs); a single misdemeanor now becomes eligible five years after completion of sentence, and multiple misdemeanors become eligible seven years after completion of the last sentence. See N.C. Gen. Stat. § 15A-145.5(c).(These eligibility waiting periods were reduced from 15 years for both the felony and misdemeanor category effective December 1, 2017.) The waiting period begins again with each new conviction, even if it is one for which expungement is not sought. Multiple convictions in the same session of court shall be treated as one nonviolent felony or nonviolent misdemeanor conviction. Class A through G felonies and Class A-1 misdemeanors are not eligible, nor are DWI’s, a number of drug offenses, and certain other offenses. Id. § 15A-145.5(a). An applicant must have paid all restitution; have no pending charges; and must demonstrate his or her “good moral character” by filing two character affidavits by non-relatives. § 15A-145.5(c). There is a filing fee of $175.
In 2021, eligibility criteria were again broadened to permit expungement of two or three non-violent felonies “20 years after the date of the most recent conviction listed in the petition, or 20 years after any active sentence, period of probation, or post-release supervision, related to a conviction listed in the petition, has been
served, whichever occurs later.” See SB301, amending § 15A-145.5(c)(2).
Under the 2020 law, a person previously granted an expungement under § 15A-145.5(c) “is not eligible for relief under this section for any offense committed after the date of the previous order for expunction.” The 2021 law makes provision for staged expungement relief where multiple convictions have different waiting periods. A person granted relief for one or more misdemeanors may not later seek relief for additional misdemeanors, and a person granted relief for one or more felonies may not later seek relief for additional felonies. However, a person granted relief for one or more misdemeanors may later apply to expunge a prior felony conviction or convictions when the longer eligibility waiting period expires, and a person granted felony relief may later apply to expunge misdemeanors occurring after the felony conviction. § 15A-145.5(c).
A petition must be filed in the court of conviction, and the district attorney must be given an opportunity to object. Id. The court must find that the applicant has had no convictions during the waiting period, and no prior violent convictions that are ineligible. In addition, a person seeking relief for a felony conviction must have had no other felony conviction. §§ 15A-145.5(c2)(4) and (6), (c3)(6). Those interested in additional detail should consult Professor Rubin’s Guide, supra.
For most expungements, the petitioner must file a petition with the appropriate state court and show that he or she meets the criteria. While a demonstration of eligibility generally creates a presumption that relief is warranted, since enactment of the 2020 law courts have discretion to deny expungement on the merits for felonies only. See State v. Neira, 840 S.E.2d 890 (2020) (recognizing under previous version of statute that use of term “may” in §15A-145.5, language that continues under the 2020 act to apply to felony convictions, gives judge discretion to deny expungement and opining in dicta that circumstances of offense in that case – felonious speeding to elude arrest – would have supported discretionary denial).
B. Effect of expungement
If granted, the effect of expungement is that the person is “restored, in the contemplation of the law, to the status he occupied before such arrest or indictment or information.” N.C. Gen. Stat. § 15A-145.5(c). However, a conviction expunged on or after July 1, 2018, may be treated as a predicate offense for the purpose of calculating “prior record level” in subsequent prosecutions and sentencing. See § 15A‑151.5 (enacted by SB-445 (2017)). Under the 2020 law, prosecutors may use expunged matters for additional purposes in subsequent criminal proceedings. See SB 562, revising G.S. 15A-145.5.
No person as to whom an order has been entered pursuant to subsection (c) of this section shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of that person’s failure to recite or acknowledge the arrest, indictment, information, trial, or conviction. This subsection shall not apply to a sentencing hearing when the person has been convicted of a subsequent criminal offense.
15A-145.5(d). The “non-acknowledgement” provision above does not apply when an individual is seeking law enforcement employment or certification. § 15A-145.5(d1).
After granting expungement, the court will order that the case record be removed from the records of the court, law enforcement agencies, and other state and local government agencies. §§ 15A-145.5(e), (f). Pursuant to N.C. Gen. Stat. § 15A-151(a), the Administrative Office of the Courts maintains a confidential file relating to expunged records, the contents of which may be disclosed to state court judges and other specified state agencies for certain specified purposes: e.g., to a judge “for the purpose of ascertaining whether a person charged with an offense has been previously granted a discharge or an [expungement],” and to law enforcement agencies for employment and certification purposes. See the detailed provisions on “Effect opf Expungement” fro m,Professor Rubin’s Relief guide, supra, at https://www.sog.unc.edu/resources/microsites/relief-criminal-conviction/effect-expunction.
Prosecutors’ investigative files have been held to be exempt from any requirement to delete records of a dismissed case. See State v. Jacobs,128 N.C. App. 559 (1998). Under the 2020 Second Chance Act (S562), prosecutors and law enforcement agencies are given enhanced access to expunged records. A detailed description of the 2020 law prepared by John Rubin for the CCRC website describes these new provisions.
Background screening companies are required by law to destroy expunged records if they have received notice of the expungement, but there appears to be no requirement that they be notified unless they have a licensing agreement with the State for bulk extracts of data. § 15A-150(d). In addition, some recently-enacted expunction statutes specifically state that “persons required by State law to obtain a criminal history record check on a prospective employee shall not be deemed to have knowledge of any convictions expunged under this section.” § 15A-145.5(d1) (nonviolent felony and misdemeanor convictions); 15A-145.9(g) (offenses by human trafficking victims).
C. Diversion and deferred adjudication
Deferred Prosecution & Conditional Discharge:
N.C. Gen. Stat §§ 15A-1341(a1). Prosecuting attorneys may move the court to place a defendant charged with Class H or I felonies and misdemeanors into either program if the court makes certain findings, including that the defendant has no prior conviction for a felony or misdemeanor involving moral turpitude and has not previously been placed on probation. Both programs may also be used for purpose of drug treatment and for those charged with prostitution. If program of probation is successfully completed, charged are dismissed and record may be expunged under § 15A-146. It is unclear whether automatic expungement applies to these dispositions.
Drug possession charges:
A person with no previous felony or drug-related convictions who pleads or is found guilty on a charge of drug possession may be placed on probation. If probation is successfully completed (including any treatment ordered), the court will discharge the person and dismiss the proceedings without an adjudication of guilt. No conviction results, including for predicate offense purposes. N.C. Gen. Stat §§ 90-96(a); 90-113.14(a) (relating to toxic vapors offenses). If the offense is committed at or under age 21, the person may apply for expunction of records under N.C. Gen Stat. §§ 15A-145.2(a) or 15A-145.3(a) (relating to toxic vapors offenses). Sections 15A-145.2 and 15A-145.3 also provide for the expunction of certain first-time drug convictions.
D. Youthful offenses
A “first offender” who committed certain specified nonviolent felonies when under 18 may petition for expungement after four years. See N.C. Gen. Stat. § 15A-145.4. Misdemeanors committed under age 18 (except for traffic violations) and first offender alcohol-possession misdemeanors committed under age 21 are eligible for expungement two years after the date of conviction or after completion of any period of probation, whichever is later. See § 15A-145. The petition must be filed in the court of conviction, and it must include affidavits of good character. The petitioner must agree to perform a minimum of 100 hours of community service and complete high school or earn a GED. If the court grants the expungement petition, the individual is not required to acknowledge the criminal records on any application, except for certain state certifications.
E. Non-violent convictions for victims of human trafficking
Vacatur is also available for prostitution offenses committed by trafficking victims. §§ 15A-1416.1; 1415(b)(10). Presumably, the record may then be expunged as a non-conviction record.
Under a 2019 expansion of this law, expungement was authorized for victims of human trafficking convicted of most nonviolent misdemeanors or low-level felonies “if the court finds that the person was coerced or deceived into committing the offense as a direct result of having been a trafficking victim.” N.C. Gen. Stat. § 15A-145.9. No waiting period or eligibility requirements related to prior record.
F. Non-conviction records
Automatic expungement: In 2020, as part of its Second Chance Act, North Carolina made expungement of most non-conviction records automatic prospectively. See N.C. Gen Stat. §15A-146(a4), enacted by S562. The pre-existing provision for expungement by petition was retained, and must be used for some non-convictions (see below). The petition-based provisions also offer somewhat greater benefits than the automatic provisions, for example in allowing expungement of unconvicted charges in cases where some charges resulted in conviction. A detailed description of the law has been prepared by John Rubin for the CCRC website. Below is a summary of the new law. Those interested in greater detail are referred to Professor Rubin’s Guide to Relief Mechanisms, supra.
Effective for charges disposed of on or after December 1, 2021, new §15A-146(a4) provides for automatic expungement of dismissals and acquittals if all charges in the case are dismissed by the prosecutor without leave (for charges that may be dismissed with “leave,” see §15A-932); all charges are dismissed by the court; or all charges result in a finding of not guilty. The new automatic expungement statute imposes no other preconditions—no waiting period, no limit on the number of expungements, and no disqualification based on prior convictions, whether for a felony or misdemeanor. This last circumstance is particularly significant. Previously, a person could not obtain an expungement of a dismissal if they had a prior felony conviction.
A felony charge dismissed pursuant to a plea agreement may be expunged but only by petition. Infractions may be automatically expunged but are not eligible for expungement by petition.
Automatic expungements are not reported to law enforcement and other state agencies by the clerk of court, though expungements by petition are and the Administrative Office of the Courts may report automatic expungements. See §15A-150(b).
Expungement by petition has also eliminated many of the barriers to access that existed under prior law: there is no waiting period, no limit on the number of expungements, no disqualification based on prior convictions. (While there was no waiting period in prior law, in practice the FBI background check required to ascertain a person’s prior record meant that expunction was generally not ordered at the time of disposition.) There is no requirement of notice to the alleged victim. As under current law, there is no filing fee except for dismissals pursuant to a deferred prosecution agreement or a conditional discharge. See §15A-146(d). Effective June 25, 2020, a judge may grant a petition for an expungement of a dismissal or acquittal without a hearing. See §15A-146(a6). Expungement is mandatory where all charges in a case are dismissed, and where the defendant has been acquitted of some or all charges.
Redacted charges: Expungement is discretionary where the court is asked to redact dismissed charges in cases resulting in conviction. §§ 15A-146(a) and (a1). (Since 2017, courts in N.C. have had specific authority to redact conviction records to expunge dismissed charges, § 15A-146(a1) (as amended by SB-445 (2017)). Section 15A-146(a5) states that in all these instances an arresting agency may maintain its investigative records related to an expunged charge.
See also §§ 15A-147(a)-(b) (expungement in case of identity theft); § 15A-149 (expungement where pardon of innocence granted); § 15A-145.8 (expungement where case remanded for adjudication under Raise the Age law).
As with expunged convictions, prosecutors and law enforcement agencies are given new access to expunged records by the Second Chance Act. See John Rubin’s analysis, supra.
G. Juvenile record sealing
The court may order the sealing of a juvenile court record. N.C. Gen. Stat. § 7B-3000(c). Sealed court records may only be viewed with a court order. Id.
A juvenile adjudicated undisciplined may petition the court for expunction upon turning age 18. N.C. Gen. Stat. § 7B-3200(a). A juvenile adjudication, with exceptions for certain classes of felonies, is eligible for expunction if the petitioner is at least age 18 and at least 18 months has elapsed since the adjudication. § 7B-3200(b). The petitioner must demonstrate good behavior and no subsequent adjudications or convictions. § 7B-3200(c). Juveniles do not need to report expunged proceedings. § 7B-3201(a). Certain gang crimes and cyber-bullying offenses committed under age 18 may be expunged as provided in N.C. Gen. Stat. §§ 15A-145.1 and 14-458.1(c).
Expunction for “Raise the Age” cases: Records of cases filed in district court and remanded for adjudication pursuant to the 2019 “Raise the Age” law shall be expunged under § 15A-145.8. In addition, in 2020 records of misdemeanors and low-level felony convictions obtained prior to enactment of the Raise the Age law (excluding traffic offenses) may also be expunged. § 15A-145.8A.
H. Certificate of Relief
Effective December 1, 2011, individuals with misdemeanor and minor felony conviction records were authorized to “petition the court where the individual was convicted for a Certificate of Relief relieving collateral consequences[.]” N.C. Gen. Stat. § 15A‑173.2(a).4 Petitions are heard by “the senior resident superior court judge if the convictions were in superior court, or the chief district court judge if the convictions were in district court.” Id. The court may issue the certificate one year after the individual has completed his sentence (including any period of probation, post-release supervision, and parole), if he has complied with all requirements of his sentence, if he “is engaged in, or seeking to engage in, a lawful occupation or activity, including employment, training, education, or rehabilitative programs, or . . . otherwise has a lawful source of support,” if no criminal charges are pending against him, and if granting the petition “would not pose an unreasonable risk to the safety or welfare of the public or any individual.” § 15A-173.2(b)(1) through (6).
A Certificate of Relief “relieves all collateral sanctions, except those listed in [N.C. Gen. Stat.] § 15A-173.3, those sanctions imposed by the North Carolina Constitution or federal law, and any others specifically excluded in the certificate. A Certificate of Relief does not automatically relieve a disqualification; however, an administrative agency, governmental official, or court in a civil proceeding may consider, and an occupational licensing agency shall consider, a Certificate of Relief favorably in determining whether a conviction should result in disqualification.” § 15A-173.2(d). A Certificate of Relief does not result in “the expunction of any criminal history record information, nor does it constitute a pardon.” § 15A-173.2(e).
A Certificate of Relief “shall not be issued to relieve” the collateral sanctions relating to: sex offender registration; prohibition on firearm possession; driver’s license suspension, revocation, limitation or ineligibility; ineligibility for certification as a criminal justice officer or justice officer; and ineligibility for employment as a corrections or probation officer, or a prosecutor or investigator in either the Department of Justice or in the office of a district attorney. N.C. Gen. Stat. § 15A-173.3(1) – (5).
Procedures for issuance, modification and revocation are set forth in N.C. Gen. Stat. § 15A‑173.4 and include the following provisions:
- The court must provide notice of the petition to the District Attorney, who may appear and be heard at any proceeding relating to the issuance, modification, or revocation of a Certificate of Relief. § 15A‑173.4(a), (c). Victims may also be heard. § 15A‑173.6.
- The issuance, modification, and revocation of Certificates of Relief shall be a public record. § 15A‑173.4(e).
- The court may modify or revoke a Certificate of Relief for just cause, which includes subsequent conviction of a felony or misdemeanor other than a traffic violation or a material misrepresentation in the petition. § 15A‑173.4(b)
- In addition, N.C. Gen. Stat. § 15A-173.2(g) provides that the denial of a petition for a Certificate of Relief “shall state the reasons for the denial, and the petitioner may file a subsequent petition 12 months from the denial and shall demonstrate that the petitioner has remedied the defects in the previous petition and has complied with any conditions for reapplication set by the court . . . in order to have the petition granted.”
Certificate as evidence of due care
N.C. Gen. Stat. § 15A-173.5 provides:
“In a judicial or administrative proceeding alleging negligence, a Certificate of Relief is a bar to any action alleging lack of due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise transacting business or engaging in activity with the individual to whom the Certificate of Relief was issued, if the person against whom the judicial or administrative proceeding is brought knew of the Certificate of Relief at the time of the alleged negligence.”
IV. Criminal record in employment & licensing
North Carolina law does not provide any general fair employment protections. However, as noted above, employment based upon an individual’s having been awarded a Certificate of Relief “shall be evidence of due care” in any suit for N.C. Gen. Stat. § 15A-173.5.
Public employment: In addition, in August 2020, Governor Roy Cooper issued Executive Order 158 directing all state agencies to remove questions about criminal record from employment application forms, and to defer inquiries until “the completion of the initial job interview.” The order further prohibited agencies from considering the following: (i) expunged or pardoned convictions, (ii) charges or convictions that do not relate to the underlying employment matter, (iii) arrests not resulting in a conviction, or (iv) charges resulting in dismissal or not guilty. Executive Order ¶ 3(b). State employment decisions “shall not be based on the criminal history of an individual unless that criminal history is demonstrably job-related and consistent with business necessity associated with the position, or if state or federal law prohibits hiring an individual with certain criminal convictions for a particular position.”¶ 3(d)
B. Occupational Licensing
North Carolina’s general licensing non-discrimination law, enacted in 2013, prohibited occupational licensing boards from automatically disqualifying an individual based on a criminal record unless the board is otherwise authorized by law to do so. This law was substantially amended in 2019 to enhance both substantive and procedural protections for people with a record, and to extend its provisions to “state agency licensing boards” as well as “occupational licensing boards.” HB770 amends N.C. Gen. Stat. § 93B-8.1 to impose a “direct relationship standard” for all licenses; to require a board to consider certain factors that before were discretionary, giving effect for the first time to a drug treatment program and a Certificate of Relief (see above); and to exempt only licenses governed by federal law. § 93B-8.1(b)-(b3).
It also provides for robust procedural protections for applicants, including written reasons in the event of a denial and an appeal procedure. § 93B-1(b4)-(b5). It also specifies that individuals may at any time apply for a “predetermination” as to whether their record is “likely” to be disqualifying, a determination that is “binding” on the board in the event of a subsequent application. § 93B-8.1(b6) though (b7).
Finally, it amends § 93B-2(a) to require each board to report annually to the legislature and to the State Attorney General on how many applications it has received from people with a record, and how many were granted and denied.
This law is significant and worth quoting more fully:
Unless federal law governing a particular board provides otherwise, a board may deny an applicant on the basis of a conviction of a crime only if the board finds that the applicant’s criminal conviction history is directly related to the duties and responsibilities for the licensed occupation or the conviction is for a crime that is violent or sexual in nature. Notwithstanding any other provision of law, a board shall not automatically deny licensure on the basis of an applicant’s criminal history, and no board may deny an applicant a license based on a determination that a conviction is for a crime of moral turpitude. The board shall make its determination based on the factors specified in subsection (b1).
(b1) Before a board may deny an applicant a license due to a criminal conviction under
subsection (b) of this section, the board must specifically consider all of the following factors:
(1) The level and seriousness of the crime.
(2) The date of the crime.
(3) The age of the person at the time of the crime.
(4) The circumstances surrounding the commission of the crime, if known.
(5) The nexus between the criminal conduct and the prospective duties of the
applicant as a licensee.
(6) The prison, jail, probation, parole, rehabilitation, and employment records of
the applicant since the date the crime was committed.
(6a) The completion of, or active participation in, rehabilitative drug or alcohol
(6b) A Certificate of Relief granted pursuant to G.S. 15A-173.2.
(7) The subsequent commission of a crime by the applicant.
(8) Any affidavits or other written documents, including character references.
(b2) If the board denies an applicant a license under this section, the board shall:
(1) Make written findings specifying the factors in subsection (b1) of this section
the board deemed relevant to the applicant and explaining the reason for the
denial. The board’s presiding officer must sign the findings.
(2) Provide or serve a signed copy of the written findings to the applicant within
60 days of the denial.
(3) Retain a signed copy of the written findings for no less than five years.
(b3) Each board shall include in its application for licensure and on its public Web site all
of the following information:
(1) Whether the board requires applicants to consent to a criminal history record
(2) The factors under subsection (b1) of this section which the board shall
consider when making a determination of licensure.
(3) The appeals process pursuant to Chapter 150B of the General Statutes if the
board denies an applicant licensure in whole or in part because of a criminal
Procedural protections for applicants:
(b4) If a board requires an applicant to submit a criminal history record, the board shall require the provider of the criminal history record to provide the applicant with access to the applicant’s criminal history record or otherwise deliver a copy of the criminal history record to the applicant. If an applicant’s criminal history includes matters that will or may prevent the board from issuing a license to the applicant, the board shall notify the applicant in writing of the specific issues in sufficient time for the applicant to provide additional documentation supporting the application for consideration by the board prior to any final decision to deny the application. After being notified of any potential issue with licensure due to criminal conviction(s), an applicant shall have 30 days to respond by either correcting any inaccuracy in the criminal history record or submitting evidence of mitigation or rehabilitation for consideration by the board.
(b5) If, following a hearing, a board denies an application for licensure, the board’s written order shall include specific reference to any criminal conviction(s) considered as part or all of any basis for the denial and the rationale for the denial, as well as a reference to the appeal process and the applicant’s ability to reapply. No applicant shall be restricted from reapplying for licensure for more than two years from the date of the most recent application.
Predetermination: HB770 also provides that an individual with a criminal history may apply to a licensing board for a “predetermination” at any time, including before the individual starts or completes any mandatory education or training requirements, as to whether the individual’s criminal history “will likely disqualify the individual from obtaining a license.” The board shall inform the individual of the board’s determination within 45 days of receiving the petition from the individual, and charge no more than $45 to recoup its expenses. § 93B-1(b6) through (b8). If the board determines an applicant would likely be denied licensure based on their criminal history, the board shall notify the individual in writing of the following:
(1) The grounds and reasons for the predetermination.
(2) That the petitioner has the right to complete any requirements for licensure
and apply to the board and have their application considered by the board
under its application process.
(3) That further evidence of rehabilitation will be considered upon application.
Significantly, a predetermination that a petitioner is eligible for a license “shall be binding if the petitioner applies for licensure and fulfills all other requirements for the occupational license and the applicant’s submitted criminal history was correct and remains unchanged at the time of application for a license.” § 93B-1(b8).
- See Community Success Initiative v. Moore, No. 19-cv-15941 (N.C. Super. Ct. Sept. 4, 2020). A trial court panel of three judges ruled, after observing that “unconditional discharge” can be delayed for up to eight years because of unpaid restitution and other financial obligations, that conditioning the vote on payment of money violates the state constitution’s guarantee of equal protection and ban on property qualifications in voting. The court issued a summary judgment order and preliminary injunction requiring the state to allow individuals to register to vote immediately if: (1) their “only remaining barrier to obtaining a ‘unconditional discharge’ other than regular conditions of probation…is the payment of a monetary amount”; or (2) they have been discharged from probation and owed a monetary amount upon termination of probation, including if the amount was reduced to a civil lien. On August 27, 2021, the panel, by a 2-1 vote also restored voting rights to individuals who are on parole, probation or supervised release for a felony conviction, but the North Carolina Court of Appeals stayed the decision on Sept. 3, 2021, pending appeal. The North Carolina Supreme Court declined to lift the stay but ruled that those who had registered between Aug. 23 and Sept. 3 under the trial court’s order can remain legal registered voters for the time being. On March 28, 2022, a majority of the three-judge panel issued a final judgment and order consistent with the preliminary injunction. The order provides, “For the avoidance of doubt, under this injunction, if a person otherwise eligible to vote is not in jail or prison for a felony conviction, they may lawfully register and vote in North Carolina.” On July 27, 2022, after an appellate court ruling, the state began allowing people to register to vote in accordance with the trial court’s decision. See https://www.ncsbe.gov/news/press-releases/2022/07/26/north-carolinians-serving-felony-sentences-who-are-not-jail-or-prison-may-register-vote-starting. The state has appealed the trial court’s decision, and the North Carolina Supreme Court will hear arguments in early 2023.
- This exception, enacted in July 2010, is responsive to the North Carolina Supreme Court’s decision in Britt v. State, 681 S.E.2d 320 (N.C. 2009), which held that the right to bear arms in the state constitution precluded applying to the plaintiff, who had been convicted in 1979, had his rights restored in 1987 and whose rehabilitation was well established, the 2004 amendment to N.C. Gen. Stat. § 14-415.1 by which its ban on the possession of firearms by a convicted felon first became absolute, thereby requiring the plaintiff to relinquish firearms of which his ownership had been lawful under the previous version of the statute.
- Ten of the sixteen pardons were granted by Governor Beverly Perdue (2009-2013) to the so-called “Wilmington 10” based on convictions stemming from the same incident. See Anne Blythe, Perdue pardons Wilmington 10, News and Observer (Jan. 1, 2013) http://www.newsobserver.com/2013/01/01/2576074/governor-pardons-wilmington-10.html.
- As originally enacted, Certificates were available only to individuals convicted of “no more than two Class G, H, or I felonies or misdemeanors in one session of court,” and who have no other convictions for a felony or misdemeanor other than a traffic violation. In 2018, eligibility was expanded to include multiple misdemeanors, but contracted to remove Class G felonies from eligibility.