The Second Chance Law

On June 25, 2020, Governor Cooper signed into law the Second Chance bill which simplifies the procedure for getting an expunction. The law modifies the following expunction protocols: (1) when the petitioner is between 16-18 years of age, (2) cases where there was a dismissal or a finding of Not Guilty, and (3) cases involving a non-violent misdemeanor or felony conviction.

Expunction for persons between the ages of 16-18 (15A-145.8)
– any misdemeanor of Class H/I felony

– unless it is a DWI or any offense requiring sex registration

– The petition can be filed once probation has been completed and all fines/restitution paid.

– The defendant or the DA can file the petition. If the defendant files the petition, there is a $175 filing fee unless indigent and service to the DA.

-The petition is a specific form from the Administrative Office of Courts (AOC) website.

Expunction of Dismissed charges or findings of Not Guilty (15A-146)
-any misdemeanor, felony, or the purchase, possession, or consumption of alcohol by a 19 or 20-year old infraction.

-is applicable to multiple charges only some of which were dismissed; those dismissed charges can be expunged.

– the petition is an AOC form but there is no filing fee. There is no hearing before the court.

[After 12/1/21, these expunctions will occur automatically for dismissed/Not Guilty/Not Responsible charges]

Expunction of a nonviolent misdemeanor and felony convictions (15A-145.5)
-Can’t be an excluded offense:

a) Class A-G felony of A1 misdemeanor

b) No assault offenses

c) No charge requiring sex registration

d) No sex-related or stalking offense

e) No felony involving sales or intent to sell meth, heroin or cocaine

f) hate crimes

g) utilization of date-rape drugs

h) Breaking and Entering a dwelling house

i) A felony with the use of a commercial motor vehicle

j) An impaired driving offense

k) Any attempt of the above-listed offenses.

– When can the petition be filed?:

For a single misdemeanor, it is 5 years after probation has ended.

For multiple misdemeanors, it is seven years after the date of the petitioner’s last probationary period.

For a single felony, the petition can be filed ten years after probation has ended.

-Expunctions for convictions require that:

a) No expunctions were granted under this section prior to the date of the offense which is the subject of the petition,

b) The petitioner and two non-family members must submit affidavits that the petitioner is of good moral character,

c) The petitioner must affirm that there have been no additional convictions and all restitution orders have been paid and

d) A hearing is held and the victim and the probation officer may testify.

If you have a case to be expunged and the petitions are too intimidating, many counties (Durham:, Orange: and Wake: and Legal Aid ( have programs to provide assistance free of charge.

Holding Dealers Criminally Liable for Drug Deaths

According to the National Center for Health Statistics at the Center for Disease Control and Prevention, more than 70,200 Americans died from drug overdoses in 2017, which represented a two-fold increase in a decade. The sharpest increase occurred among deaths related to fentanyl and fentanyl analogs (other synthetic narcotics) with more than 28,400 overdose deaths.1

“Death by distribution” is the title of the new class C felony offense in North Carolina which holds sellers of illicit controlled substances criminally liable for any resulting deaths caused by the controlled substances. (G.S. 14-18.4(b))

“Malice” or the intent to do injury to another party is not required. So any illegal sale of a controlled substance which is the proximate cause of death can be prosecuted under this statute. This would include accidental overdoses as well as deaths resulting from toxic cutting agents.

The controlled substances include opiates, cocaine or methamphetamine and also “depressants.” The illegal sale of benzodiazepines such as Klonopin and Ativan, fall within the list of banned prescription controlled substances.

Class C felonies are punishable by a minimum of 44-182 months of incarceration. If the dealer has a prior narcotic conviction for sale, possession for sale or trafficking, then aggravated penalty of 94-393 months as a Class B-2 felony applies.

A person commits this offense if the following elements are satisfied:
• The person unlawfully sells at least one “certain controlled substance;”
• The ingestion of the certain controlled substance or substances causes the death of the user;
• The sale of the certain controlled substance is the proximate cause of the victim’s death; and
• The person did not act with malice.

A “certain controlled substance” is any of the following:
• Any opium, opiate, or opioid;
• Any synthetic or natural salt, compound, derivative, or preparation of opium, opiate, or opioid;
• Cocaine or any other substance described in G.S. 90-90(1)(d);
• Methamphetamine;
• A depressant described in G.S.90-92(a)(1); or
• A mixture of one or more of these substances. (G.S. 14-18.4(b))

1. 47,600 deaths were due to opioids including prescription opioids (and methadone), heroin and other synthetic narcotics (mainly fentanyl).
17,029 deaths were due to prescription opioids in combination with synthetic narcotics (mainly fentanyl)
15,482 deaths involved heroin alone and in combination with other synthetic narcotics (mainly fentanyl) and without other synthetic narcotics.
10,333 deaths involved methamphetamine and other psychostimulants.
13,942 deaths involved cocaine and any opioid, cocaine without any opioid, and cocaine and other synthetic narcotics.
11,537 deaths were due to benzodiazepines and any opioid, benzodiazepines without any opioid, and benzodiazepines and other synthetic narcotics.


Your longtime girlfriend hooks up with your roommate and you are livid. In a moment of anger and heartbreak, you post a graphic video clip of the sex tape you and she made, label it “My Ex: the Back-Stabbing Bitch” and post it online.  This rash action can result in a civil and criminal case, confiscation of your phone and computer and arrest under the new “Revenge Porn” law. Posting “Revenge Porn” online will be a felony for adults and a misdemeanor for those under 18 years of age as of December 1, 2015 in the state of North Carolina.

Revenge Porn refers to the posting of intimate images (breasts with nipple visible, male and female genitalia/pubic area and anal area) for the purposes of harassment or humiliation when the poster of the material knows that the images were disclosed in the context of a personal relationship and with a reasonable expectation of privacy.

A “personal relationship” is defined as: current or former spouses; persons of opposite sex who live together or have lived together; persons who have a child in common; current or former household members and persons of the opposite sex who are in a dating relationship or have been in a dating relationship. For purposes of this subdivision, a dating relationship is one wherein the parties are romantically involved over time and on a continuous basis during the course of the relationship. A casual acquaintance or ordinary fraternization between persons in a business or social context is not a dating relationship. (NCGS 50B‑1(b).)

All the following elements must be proven:

“(1)     The person knowingly discloses an image of another person with the intent to do either of the following:

a. Coerce, harass, intimidate, demean, humiliate, or cause financial loss to the depicted person.

b. Cause others to coerce, harass, intimidate, demean, humiliate, or cause financial loss to the depicted person.

(2)      The depicted person is identifiable from the disclosed image itself or information offered in connection with the image.

(3)      The depicted person’s intimate parts are exposed or the depicted person is engaged in sexual conduct in the disclosed image.

(4)      The person discloses the image without the affirmative consent of the depicted person.

(5)     The person discloses the image under circumstances such that the person knew or should have known that the depicted person had a reasonable expectation of privacy.” (NCGS§ 14‑190.5A)

This is a complicated law and defenses exist under the First Amendment, statutory exceptions and qualifiers. Please contact me to discuss the specifics of your case.

NC License Restoration Act = good news if your driving privilege has been revoked/suspended

The North Carolina Drivers License Restoration Act, H 529, recently passed by General Assembly, should help people convicted of certain types of Driving while License Revoked (DWLR) charges from having additional years tacked on to their revocation period. Currently, whenever a person was trying to get their driving privilege reinstated but had to drive anyway (such as to work}, any additional convictions of No Operator’s License (NOL) or DWLR, would result in another one year extension before the person could qualify to apply for a valid license. A second conviction of DWLR would result in an additional two year revocation and a third conviction for driving while license revoked led to a permanent license revocation.

If the governor signs H 529, a person convicted of DWLR under G.S. 20-28(a) on or after December 1,2015, would no longer be subject to a mandatory additional period of license revocation. This is really significant. If your driving privilege has been revoked or suspended, contact me. Passage of H 529 is a big step in the direction of obtaining a valid driver’s license.

Registration of Mopeds Now Required, Insurance…2016

If you have/drive a moped, you must now get it registered before you can motor on highways or public vehicular areas.(G.S. 20-53.4, effective July 1, 2015)

A moped is defined as “[a] vehicle that has two or three wheels, no external shifting device, and a motor that does not exceed 50 cubic centimeters piston displacement and cannot propel the vehicle at a speed greater than 30 miles per hour on a level surface.” (G.S. 20-4.01(21a), see G.S. 105-164.3).

If you have a moped that can go faster than 30 mph, registration has already been required. G.S. 20-50(a).

To get your moped registered, you must have a manufacturer’s certificate of origin and the moped must be designed and manufactured for use on highways or public vehicular areas.

The fee for registering a moped is $18.00. But residents of Durham, Orange, Randolph, and Wake counties will have to pay additional county surcharges. G.S. 20-87(6).

If you get caught driving an unregistered moped on a street or highway, allowing a moped someone else to drive your unregistered moped or not displaying your registration, it is a Class 3 misdemeanor. G.S. 20-111(1).

Right now, moped insurance is not required but that won’t be the case for long. The General Assembly ratified a bill recently which amends the law (G.S. 20-309(a)) and requires owners of mopeds as of July 1, 2016 to have insurance.

Finally, a requirement that a person in custody be able to clear outstanding warrants

A new NC law requires that when someone is in jail on one case and the person has outstanding warrants on unrelated matters, the Department of Corrections and each court where the defendant appears must identify all outstanding warrants so that the incarcerated person can clear up these burdensome and expensive warrants while they are in custody.
This may not seem like a big deal but it is. Clearing up outstanding warrants:unpaid traffic tickets, cases when the person failed to appear etc. not only deprives the incarcerated person of concurrent jail time but subjects them to future arrest and keeps the system clogged with warrants.
In the legal world, the phrase is “judicial economy’ but in the real world, it is called “efficiency” and/or “killing two birds with one stone.” In California, where I practiced previously, when a person was incarcerated on one case, the computer would generate a list of all their outstanding warrants from any county in the state. Then that person would “make the rounds.” All the arrest warrants issued for unpaid tickets, failures to appear and violations of probations would be resolved expeditiously. Minor traffic and misdemeanor cases would typically either be dismissed or the defendant would received a time served sentence which would run concurrently (at the same time) as the charge for which the person was in jail in the first place.
Now when a person gets out of jail, that person will have cleaned up all outstanding warrants and need not need to fear arrest for warrants which had been in the system but not flagged.The law also states that the Department of Adult Correction, the police, the prosecutors and the courts must develop a process to identify and resolve all outstanding warrants while the person is in jail.
If you or a loved one is in jail and they have outstanding warrants, this law is tasked with forcing the system to help the incarcerated person clean up cases so when they are released, they can be unencumbered by the past and can focus on their future.
The new law is S.L. 2015-48 (H 570): Duty to identify outstanding arrest warrants. Amended G.S. 15A-301.1 creates the requirement that the custodial law enforcement agency must attempt to identify all outstanding warrants and notify appropriate law enforcement agencies of the person’s location. The same duty is imposed on a court before entering any court order in a criminal case. Newly enacted G.S. 148-10.5 requires the Division of Adult Correction of the Department of Public Safety to work with law enforcement, district attorneys’ offices, and courts to develop a process at intake and before release to identify all outstanding warrants for an inmate and to resolve them while he or she is in custody, if feasible. The inmate must be notified of the outstanding warrant and any right to counsel. [This session law is effective October 1, 2015]

New NC Laws: Deferrals for misdemeanors/ Class H or I felonies and reduced penalty for marijuana paraphernalia

1) Misdemeanor and Felony Deferrals- Amended G.S. 15A-1341 (probation), effective December 1, 2014, provides that when a defendant pleads guilty or is found guilty of a Class H or I felony or a misdemeanor, the court may, on the joint motion of the defendant and the prosecutor, defer further proceedings for the possibility of conditional discharge. The court must make certain findings (defendant has not been convicted of a felony or a misdemeanor involving moral turpitude, not previously placed on probation, etc.) without entering a judgment of guilt and place the defendant on probation to allow the defendant to demonstrate good conduct. Another conditional discharge provision provides that when a defendant is eligible for the drug treatment court program, a court may, without entering a judgment of guilt and with the defendant’s consent, defer proceedings and place the defendant on probation to allow participation in and completion of the drug treatment court program.On fulfillment of the terms and conditions of a conditional discharge, a plea or finding of guilt previously entered must be withdrawn and the court must discharge the defendant and dismiss the proceedings. However, if there is a violation of a term or condition of conditional discharge, the court may enter an adjudication of guilt and proceed as otherwise provided.
2) Reduced punishment if defendant possesses marijuana paraphernalia. New G.S. 90-113.22A
creates the Class 3 misdemeanor of possession of marijuana paraphernalia, and marijuana is removed from the current Class 1 misdemeanor of possession of drug paraphernalia in G.S. 90-113.22. Also, the new Class 3 misdemeanor is made a lesser-included offense of the Class 1 misdemeanor. These changes are effective for offenses committed on or after December 1, 2014.
S.L. 2014-119 (H 369)

No E-cigarettes for those under 18

The opportunity to smoke electronic cigarettes (those with a nicotine vapor) if you are under 18, has come and gone. Effective August 1, 2013, N.C.G.S. 14-313 adds the e-cigarette to the list of tobacco derived products that are banned for those under 18 years old. I KNOW they are targeted to the youth market with the flavored vapors etc. but now they are illegal. E-cigarettes are only slightly cooler than the candy cigarettes that we played with as kids back, way back…in the day. But those did not infuse your body with nicotine.

Reprieve from possessing a needle

N.C.G.S. 90-113.22 provides that if an officer asks you if you have a hypodermic needle or other sharp object which could cut or puncture the officer before a search and you admit that you do, you will not be cited for possession of drug paraphernalia (for this object). This law takes effect 12/1/13 and is based upon officer’s safety issues. It applies to a search of one’s person or vehicle.

New Legistlation

If you are under 21, have consumed alcohol and see a dangerously intoxicated person, do not hesitate to call 911 to get immediate medical assistance for this person. A new law will protect you from being arrested for being a minor possessing or consuming alcohol. N.C.G.S. 18B-­‐302.2 provides that a minor shall not be prosecuted for possession or consumption of alcohol if the only reason the police become aware of the alcohol is if that person is seeking medical assistance for another person. You must believe you are the first to call for medical assistance, use your true name and remain with that person until help arrives. So be the good Samaritan; you will not be punished.