My law firm handles a lot of expungement work. If you have been charged with a crime (or if you know someone who was ever charged with a crime) you should understand the rules for expungements in North Carolina. There are two important types of expungements out there: (1) expungements for dismissed cases and (2) expungements for that one minor charge on your record that happened a long time ago.
My case was dismissed. Is there still a record?
Yes! Even if your case was dismissed a record remains visible for everyone to see forever unless it is expunged. There is no procedure to automatically expunge a dismissed case. The record stays visible forever. If you were charged with possession of marijuana (or any other charge imaginable) and the case was dismissed there will be a record visible to everyone that says essentially "possession of a schedule VI controlled substance - case dismissed." Anyone who sees your record will have immediate questions about why you were charged with possession of a controlled substance. In the employment context it makes for a horrible first impression for prospective employers.
How does it work to expunge a dismissed case?
Generally, everyone in North Carolina can have any dismissed case (or not guilty verdict) expunged once in their lifetime. You can pretty much get rid of anything you want as long as the case was dismissed or you were found not-guilty. You file a petition and after around six months the records are erased.
I just had that one stupid crime and it's been a long time...
If you pled guilty to one minor crime or were found guilty of one minor crime and it's been 15 years without another charge then you may be eligible to have the criminal record expunged. The North Carolina Legislature has essentially said that if you have one minor criminal charge on your record and have stayed out of trouble for fifteen years then you can apply for an expungement of that charge.
How does it work to get rid of that old conviction?
You need to provide some affidavits and affidavits from people who will attest to your good moral character in addition to the expungement petition. If you qualify for an expungement of that old criminal conviction there is a good possibility you can have the charge erased.
What is the effect of an expungement?
An order granting a petition for an expungement has two basic effects. One, it requires deletion of records about the case. Two, it seeks to restore the petitioner to the status he or she had before the criminal proceedings occurred. The deletion requirement applies to North Carolina's courts, state and local law enforcement agencies, other government agencies, and certain organizations in the business of providing criminal history information. The expunction statutes express in various ways the principle that an expunction restores a person's status as if the proceeding had not occurred. Most expunction statutes state this principle explicitly. Most also state that a person who receives an expunction may not thereafter be held under any provision of law to be guilty of perjury for failing to acknowledge the expunged criminal proceedings.
How do I move forward with an expungement?
There are dozens of other ways to have charges expunged. A lot of good options are available for charges that happened when the petitioner was 21 and younger. If you would like a free consultation about whether you qualify for an expungement or if you would like to know whether someone else qualifies for an expungement then please contact my law office at 919-585-1486. You can speak to an expungement lawyer who will walk you through the process and explain your options.
If you have been charged with a criminal offense in Wake County, North Carolina your number one concern may be whether or not you have to serve any time in jail or prison. A conviction itself, however, whether or not you are sentenced to any time in jail or prison, can come with a variety of unpleasant consequences. One of these consequences you may be concerned with is whether or not your case will become a part of your criminal record in Wake County, North Carolina.
Even if your case is dismissed or dropped today (or perhaps a not guilty verdict) thanks to a great criminal defense lawyer the record of your dismissed arrest or citation will be on your record forever unless it is expunged. As an example: If you are charged with assault in Wake County and the victim does not show up (or changes his story) and your case is dismissed there will be a record visible to anyone that shows you were charged with Assault and the case was dismissed. Any employer will certainly have serious questions about your prospective employment if they see that you were charged with assault.
A criminal conviction can negatively impact your ability to become approved for loans, apply for housing, or get the job you want. In North Carolina, you may be able eligible to have your criminal record expunged. In order to get your record expunged you will need to provide certain information about your criminal case to your attorney who will handle the expungement petition for you.
If your conviction is successfully expunged you may be able to answer “no” in many situations when asked if you have ever been convicted of a criminal offense.
Contact the Law Offices of Wiley Nickel today at (919) 585-1486 for a free consultation to discuss an expungement of your criminal record. Our office is located in Cary, North Carolina. You can also speak with an expungement lawyer by e-mailing Wiley Nickel at email@example.com any time.
Expungement Attorney Wiley Nickel helps people throughout Wake County, North Carolina and handles criminal and traffic offenses arising out of the following cities: Morrisville, New Hope, Apex, Knightdale, Raleigh, Rolesville, Holly Springs, Cary, Wake Forest, Garner, Wendell, Fuquay-Varina and Zebulon.
A certificate of relief removes some of the civil disabilities that arise from a criminal conviction, especially in the employment context. Below is a brief description of the benefits, eligibility, procedures, and evidentiary standards for certificates of relief in North Carolina. If you need help getting a job and an expungement is not available then a Certificate of Relief Might Help. If you believe you are eligible for a certificate of relief, please call the law Offices of Wiley Nickel at 919-585-1486.
Transforms all automatic civil disabilities into discretionary civil disabilities, EXCEPT:
- Sex offender registration
- Possession of a firearm by a felon
- Motor vehicle license, revocation, or ineligibility
- Criminal Justice Officer and Sheriffs certification
- Employment as corrections or probation officer
- Employment as prosecutor or investigator in NCDOJ or District Attorney’s Office
- Any disability enacted by federal law or in the NC Constitution
- Considered favorably in discretionary decisions (ex. most occupational licensing decisions)
- Provides evidence of due care to private employers in negligent hiring lawsuits
- Demonstrates that the recipient is not an “unreasonable risk to the safety or welfare of the public”
Certificate of Relief is NOT an expunction or pardon
- An individual granted a certificate of relief still has a criminal conviction on their record that is visible to anyone.
- 1 misdemeanor or 1 Class G, H, or I felony conviction= eligible
- 2 misdemeanor or 2 Class G, H, or I felony convictions (convicted in same session of court)= eligible
- 2 or more convictions in different sessions= not eligible
- 1 Class A, B, C, D, E, or F felony conviction= not eligible
- A Petition and Order for a Certificate of Relief is filed with the court by our office.
- A district attorney may appear at the hearing; the victim of the underlying crime may also appear
- Petitioner must prove by a preponderance of the evidence (more likely than not):
- Twelve months have passed since the person completed his or her sentence
- The person is engaged in or is seeking to engage in a lawful occupation or activity
- The person has no criminal charges pending
- The person has complied with all requirements of the person’s sentence
- Granting the petition would not pose an unreasonable risk to the safety or welfare of the public or any individual
North Carolina Decriminalizes Low Level Misdemeanors including Marijuana Possession, Driving While License Revoked & Worthless Check charges.
Jail time is now off the table for many low level misdemeanors and a $200 fine is the only punishment available in many cases. For example a charge of marijuana possession for someone with up to three prior criminal convictions is now punishable by only a fine.
Marijuana Possession Punishment is now just a $200 fine for many!
Effective for all offenses committed on or after December 1, 2013, the General Assembly of North Carolina will “decriminalize” all class three misdemeanors for offenders with no more than three prior criminal convictions. The new law provides that (unless otherwise noted) the maximum punishment for a person who is convicted of a Class 3 misdemeanor, and who has no more than three prior convictions, shall be a $200 fine.
An attempt by North Carolina to save $$$$
This is an attempt to save the state money in court operating costs, payments to court-appointed lawyers, costs to place an offender on probation, and costs to house inmates in local jail facilities. The goal in enacting this legislation is presumably to keep low-level crimes and low-recidivist criminals out of the jail where local counties generally bear the financial burden of housing them, and order that these convicted offenders pay a fine. Also, the goal is to not have to pay for the offender’s court appointed counsel, which becomes a state burden. Court appointed attorneys are mandated if a defendant cannot afford their own attorney and if it is possible that the defendant will face a jail sentence. This law negates the need for a court appointed attorney for some offenders whom are charged with a class three misdemeanor.
What Crimes Are Included?
Class 3 Misdemeanors are the lowest level of misdemeanors, and, until this new law, were punishable by up to 20 days in jail, and a fine of $200.00. Typical Class 3 misdemeanors are second degree trespass or possession of less than ½ oz of marijuana. These are crimes for which judges typically would not punish with jail time, but judges often do place offenders on probation upon conviction for these types of crimes. Probation costs money to operate as well, and probation officers are often overwhelmed with a caseload full of much more serious offenders to worry about. If an offender violates probation he or she may be punished with jail time.
How does it work?
Starting soon for cases committed after December 1, 2013 when a defendant goes to a North Carolina court for his first appearance and asks for a court appointed attorney (assuming a class 3 misdemeanor) the Court will have to make a determination of that defendant’s prior record before knowing if he or she is eligible for a court appointed lawyer.
Paying a $200 fine can haunt you for the rest of your life!
The problem with this change in the law is that a conviction for a class three misdemeanor can mean more than simply the $200 fine. Any conviction will stay on your criminal record for a lifetime unless it is expunged and most people will not qualify for an expungement. A criminal conviction on your record (even for just a class three misdemeanor) can have very serious consequences including loss of employment opportunities, loss of educational opportunities, loss of other benefits and rights. I’ve had countless people who have called my office because a prior criminal conviction is keeping them from getting a good job. These effects are life-long effects and can do serious damage to someone’s earning capacity.
Call Raleigh Criminal Defense Lawyer Wiley Nickel for a Free Consultation
If you find yourself charged with a class three misdemeanor in North Carolina, such as second degree trespass, DWLR, worthless check or possession of less than ½ oz of marijuana, you should still seek the advice of a criminal defense lawyer. Simply pleading guilty and paying a $200 fine can and will have serious effects on you in the years ahead The effect on your criminal record, potential for work or school, and other considerations, are important to understand. Most importantly, if you are already on probation or have other pending criminal matters you should always consult with an attorney before entering any plea in court. A $200 fine may feel like just a slap on the wrist today, but the consequences of a conviction will affect you for the rest of your life.
The Law Offices of Wiley Nickel can help!
If you are charged with any crime, please call the Law Offices of Wiley Nickel, PLLC today for a free consultation at 919-585-1486. We handle criminal cases in Wake County North Carolina and are located in Cary, NC.
Effective for offenses committed on or after December 1, 2013, § 18B.13.(a) of Session Law 2013-360 amends G.S. 15A-1340.23 to provide that, unless otherwise noted, the maximum punishment for a person who is convicted of a Class 3 misdemeanor and who has no more than three prior convictions shall be a $200 fine. Thus, unless otherwise noted, an indigent defendant who is charged with committing a Class 3 misdemeanor on or after that date and who has no more than three prior convictions will no longer be entitled to appointed counsel and IDS will no longer have authority to pay for appointed representation regardless of the defendant's indigency status.
So this means that pubic defenders and court appointed lawyers will not be made available to those who cannot afford an attorney.
It also means that a $200 fine is the maximum punishment for those charged with minor drug offenses.
The Justice Reinvestment Act (JRA) (S.L. 2011-192) has made several changes to areas of criminal law. Most notably for criminal law, the changes allow me to help first time offenders under North Carolina General Statute 90-96, which allows for a conditional discharge for certain drug offenders. As of January 1, 2012, the new statute allows a convicted defendant to consent to being placed on probation without the court actually entering judgment. If the person fulfills the terms and conditions of the probation, the statute reads that the court shall dismiss the charges against the defendant. If however, the person violates a term or condition of the probation, the court may enter an adjudication of guilt and sentence the defendant. Successful defendants may apply for an expunction of the dismissed charge which is one of the services we offer for clients who enter the first offender’s program.
The defendants that are eligible for the conditional discharge are those who have a clean criminal record and are charged with any misdemeanor or felony simple possession of controlled substances crime under G.S. 90-95(a)(3), regardless of the substance schedule or amount, and/ or possession of drug paraphernalia under G.S. 90-113.22. This is expansive, as the old statute would only allow a 90-96 to be used for defendants charged with possession of cocaine. We have placed clients charged with larceny into this program among other crimes charged. The program fee is $250 in addition to court costs around $188. You are also required to complete 75 hours of community service in Wake County. You are able to choose where you do the community service as well.
If you have any questions, or would like to see if a conditional discharge would be appropriate in your pending charges, please give us a call today at 919-585-1486 to speak with a Raleigh first offenders lawyer at the Law Offices of Wiley Nickel, PLLC. Our office is centrally located in Cary and you can reach us by e-mail for a free consultation at firstname.lastname@example.org.
At The Law offices of Wiley Nickel, PLLC our Cary Misdemeanors Attorney provides aggressive criminal defense of a wide range of charges. First time offenders are often eligible for the first offenders program in Wake County whereby community service is performed to earn a voluntary dismissal of the charge.
Criminal Defense Lawyer Wiley Nickel is a former prosecutor with years of experience in the criminal justice system. A strong fighter in defense of his clients, Wiley Nickel understands the lifelong impact that a misdemeanor conviction can have on your job prospects and reputation in the community. Please call us today at (919) 585-1486 to schedule your free consultation or contact us online.
Our Misdemeanors Attorney Defends Against:
Shoplifting and Misdemeanor Larceny - shoplifting, or concealment of merchandise, is a class 3 misdemeanor punishable by up to 20 days in jail and is often charged when items are concealed while still on store property. First time offenders are eligible for a diversion program to earn a dismissal of the charge.
Misdemeanor larceny, a class 1 misdemeanor punishable by up to 120 days in jail, is charged where the item taken is valued at less than $1000, is not the result of a breaking and entering, and the individual has exhibited the intent to deprive the owner permanently of its use. For first time offenders, Wake County offers a diversion program upon completion of community service in order to earn a voluntary dismissal.
Resist, Delay or Obstruct a law enforcement officer – A class 2 misdemeanor punishable by up to 60 days in jail where the offender interferes with an official duty being carried out by law enforcement. This can include running or resisting the police during an arrest, lying to an officer about your name or the whereabouts of an individual when an arrest warrant is being served, or interfering with an officer who is carrying out an official duty.
Damage or Injury to Personal Property and Real Property – Includes damage or destruction to buildings, land, or personal property such as vehicles, and punishable as a class 1 or class 2 misdemeanor.
Trespassing – Defined as remaining on property after being notified not to enter or remain on the premises, and punishable as either a class 2 or 3 misdemeanor.
Disorderly Conduct and Public Disturbance – Charged as a class 2 misdemeanor, these offenses involve public fighting, the public use of abusive language or gestures, blocking entry to a public building, disrupting the education of students in a public or private school or disruption of a religious service.
Simple Assault and Simple Affray – Both class 2 misdemeanors, simple assault is any offensive contact or the apprehension of harmful physical contact by another person. Simple Affray is defined as engaging in fighting in a public place.
Communicating Threats, Stalking, Cyberstalking, and Harassing Phone Calls – Can include threats of harm to another where it is reasonable to believe the threat could be carried out, as well as repeated contact with another in person, by phone, text or email where the purpose is to harass, threaten, or annoy the alleged victim.
Many people who seek to have records of their charges expunged do not fit into the narrow categories available to have their charges expunged. If a criminal conviction is preventing you from gaining employment or hurting you in some other way a "certificate of relief" could be the thing to get you moving forward with your life. Call to speak with an attorney at the law offices of Wiley Nickel at 919-585-486 for a free consultation to see if a certificate of relief can help where an expungement cannot help.
The basic requirements for relief, contained in new G.S. 15A-173.2 for a "certificate of relief" are as follows:
- The person must have been convicted of no more than two Class G, H, or I felonies or misdemeanors in one session of court and have no other convictions for a felony or misdemeanor other than a traffic violation.
- The person must petition the court in which the convictions occurred (District or Superior Court)
- The person must establish certain matters by a preponderance of the evidence, including that twelve months have passed since the person completed his or her sentence, that the person is engaged in or is seeking to engage in a lawful occupation or activity, and that the person has no charges pending.
If granted, a certificate of relief applies to two types of collateral consequences: “collateral sanctions,” defined as a penalty, disability, or disqualification imposed by operation of law, such as a mandatory bar on obtaining a license for a particular occupation; and “disqualifications,” defined as a penalty that an agency, official, or court may impose based on the conviction, such as a discretionary bar on an occupational license. A certificate of relief relieves the person of all automatic “collateral sanctions” except for those listed in new G.S. 15A-173.3 (for example, sex offender registration requirements and firearm disqualifications); those imposed by the North Carolina Constitution or federal law (for example, the state constitutional ban on holding the office of sheriff if previously convicted of a felony and the federal bans on federally-assisted housing and food stamp benefits for certain convictions); and those specifically excluded in the certificate. A certificate of relief does not bar an entity from imposing a discretionary “disqualification” based on the conviction, but the entity may consider the certificate favorably in deciding whether to impose the disqualification. A certificate of relief also does not result in an expunction or pardon of the conviction; a person must use other mechanisms, if available for the conviction in question, to obtain those forms of relief.
If you're a first time offender in Wake County there are some great deferral programs if you're charged with "possess marijuana up to 1/2 Oz." My law firm handles a lot of these cases and can help you evaluate whether or not a deferral program makes sense in your case. Often you could have some great legal reasons why you're not guilty (i.e. arresting officer did not have probable cause to detain you). We handle marijuana and other drug cases in Wake County from our office located in Cary.
A Motion for Appropriate Relief (also called a MAR Motion) is a motion that can be filed on behalf of the defendant after the Judge or Jury's Verdict. The motion re-opens the case (much like an appeal) but the case stays at the District or Superior Court trial level. The basis for the motion depends on when it is filed. MAR's filed within 10 days of the verdict can assert more errors than MAR's made beyond ten days. A MAR Motion is often a better idea than an appeal and in some cases can be filed even if the Defendant has appealed the verdict. Errors that can be asserted within the 10 day window include:
- Any error of law
- A verdict that is contrary to the weight of the evidence
- The defendant did not receive a fair or impartial trial
- The sentence was not supported by the evidence presented
Outside the 10 day window there are nine (9) errors that can be the basis for a MAR Motion.
- Acts that Do Not constitute a Violation of Law
- Examples include when the statute proscribing the crime for which the defendant was convicted was repealed before he or she committed the offense at issue or when the defendant was convicted of sale of a controlled substance in violation of G.S. 90-95(a)(1), but the substance that the defendant sold was not a controlled substance.
- Trial Court Lacked Jurisdiction
- Examples include an assertion that an indictment was fatally defective or an allegation that an unreasonable period of time elapsed between the entry of a prayer for judgment continued (PJC) and the entry of judgment.
- Unconstitutional Conviction
- Examples include an ineffective assistance of counsel claim or a claim asserting that a guilty plea was not knowingly, voluntarily, and intelligently entered.
- Unconstitutional Statute
- This includes situations where the defendant was convicted or sentenced under a statute that violated the United States or North Carolina constitutions. An example would be asserting that a habitual felon statute violates the double jeopardy clause.
- Constitutionally Protected Conduct
- This could include situations where the conduct leading to a disorderly conduct conviction was protected by the Free Speech Clause of the First Amendment or where the defendant was convicted of a crime against nature for private consensual homosexual sex between adults and alleges a violation of due process rights.
- Retroactive Change in Law
- In some situations a defendant can assert a claim that there has been a significant change in law (either substantive or procedural) applied in the proceedings leading to the defendant’s conviction or sentence, and retroactive application of the changed legal standard is required. The change in law could be the result of an appellate case or from new legislation from the North Carolina General Assembly.
- Sentence was Unauthorized, Illegal or Invalid
- An example of an error of law with regard to the sentencing would be when the trial judge sentences the defendant under the Fair Sentencing Act but the applicable law is in the Structured Sentencing Act.
- Sentence Fully Served
- This could apply where the defendant is in jail and is entitled to release because the sentence has been fully served. It could also apply when the Department of Correction (DOC) has not complied with a judge’s ruling ordering credit for time served - and if such credit was given then the defendant would be entitled to be released from jail.
- Claim of Newly Discovered Evidence
- This is a more complex area of the law but could include the discovery of new evidence that was unknown or unavailable at the time of trial and could not with due diligence have been discovered or made available at trial, including recanted testimony.
If you think that you have been unfairly convicted, and would like to see if it’s possible to re-open your North Carolina District or Superior Court case by using a Motion for Appropriate Relief (MAR) please contact the Law Offices of Wiley Nickel, PLLC. We serve Wake County, Chatham County, Durham County & Orange County and offer free initial consultations.
In the North Carolina court system, a post-conviction challenege to your conviction or sentence, whether after a jury trial or a guilty plea, involves filing a motion for appropriate relief (MAR). With this type of litigation we request for whatever relief you need. This can include a dismissal of all charges, a new trial, or a new sentencing hearing. However, litigating a motion for appropriate relief (MAR) is not easy. It requires a review of all previous pleadings and hearings, interviews of various witnesses, research into key legal issues, preparing affidavits and supporting documents, and coming up with a persuasive and convincing motion.
The Law Offices of Wiley Nickel can help fight your conviction with a MAR. . We can tackle the tough issues often raised in these situations, including ineffective assistance of counsel and prosecutorial misconduct. We can help assemble any newly discovered evidence that may exist, including recanted testimony by alleged victims and other witnesses. We fight hard for our clients in this type of litigation.