North Carolina § 90-113 - 14. Conditional discharge for first offenses.

§ 90-113. 14. Conditional discharge for first offenses.

Whenever any person who has not previously been convicted of any offense under this Article or under any statute of the United States or any state relating to those substances included in Article 5 or 5A or 5B of Chapter 90 pleads guilty to or is found guilty of inhaling or possessing any substance having the property of releasing toxic vapors or fumes in violation of Article 5A of Chapter 90, the court may, without entering a judgment of guilt and with the consent of such person, defer further proceedings and place him on probation upon such reasonable terms and conditions as it may require. Notwithstanding the provisions of G.S. 15A-1342(c) or any other statute or law, probation may be imposed under this section for an offense under this Article for which the prescribed punishment includes only a fine. To fulfill the terms and conditions of probation the court may allow the defendant to participate in a drug education program approved for this purpose by the Department of Health and Human Services. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge such person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime including the additional penalties imposed for second or subsequent convictions. Discharge and dismissal under this section or G.S. 90-96 may occur only once with respect to any person. Disposition of a case to determine discharge and dismissal under this section at the district court division of the General Court of Justice shall be final for the purpose of appeal. Prior to taking any action to discharge or dismiss under this section the court shall make a finding that the defendant has no record of previous convictions under the "North Carolina Toxic Vapors Act", Article 5A, Chapter 90, the "North Carolina Controlled Substances Act", Article 5, Chapter 90, or the "Drug Paraphernalia Act", Article 5B, Chapter 90. Upon the first conviction only of any offense included in G.S. 90-113.10 or 90-113.11 and subject to the provisions of this subsection (a1), the court may place defendant on probation under this section for an offense under this Article including an offense for which the prescribed punishment includes only a fine. The probation, if imposed, shall be for not less than one year and shall contain a minimum condition that the defendant who was found guilty or pleads guilty enroll in and successfully complete, within 150 days of the date of the imposition of said probation, the program of instruction at the drug education school approved by the Department of Health and Human Services pursuant to G.S. 90-96.01. The court may impose probation that does not contain a condition that defendant successfully complete the program of instruction at a drug education school if: There is no drug education school within a reasonable distance of the defendant's residence; or There are specific, extenuating circumstances which make it likely that defendant will not benefit from the program of instruction. Upon the dismissal of such person, and discharge of the proceedings against the person under subsection (a) or (a1) of this section, such person, if he or she was not over 21 years of age at the time of the offense, may be eligible to apply for expunction of certain records relating to the offense pursuant to G.S. 15A-145.3(a). The clerk of superior court in each county in North Carolina shall, as soon as practicable after each term of court in the clerk's county, file with the Commission, the names of all persons convicted under such Articles, together with the offense or offenses of which such persons were convicted. Whenever any person is charged with a misdemeanor under this Article or possessing drug paraphernalia as prohibited by G.S. 90-113.22 upon dismissal by the State of the charges against him or her or upon entry of a nolle prosequi or upon a finding of not guilty or other adjudication of innocence, the person may be eligible to apply for expunction of certain records relating to the offense pursuant to G.S. 15A-145.3(b). Whenever any person who has not previously been convicted of an offense under this Article or under any statute of the United States or any state relating to controlled substances included in any schedule of Article 5 of Chapter 90 of the General Statutes or to that paraphernalia included in Article 5B of Chapter 90 of the General Statutes pleads guilty to or has been found guilty of a misdemeanor under this Article, the person may be eligible to apply for cancellation of the judgment and expunction of certain records related to the offense pursuant to G.S. 15A-145.3(c). The court shall enter such specific findings in the record; provided that in the case of subsection (2) above, such findings shall include the specific, extenuating circumstances which make it likely that the defendant will not benefit from the program of instruction. Upon fulfillment of the terms and conditions of the probation, the court shall discharge such person and dismiss the proceedings against the person. For the purpose of determining whether the conviction is a first conviction or whether a person has already had discharge and dismissal, no prior offense occurring more than seven years before the date of the current offense shall be considered. In addition, convictions for violations of a provision of G.S. 90-95(a)(1) or 90-95(a)(2) or 90-95(a)(3), or 90-113.10, or 90-113.11, or 90-113.12, or 90-113.22 shall be considered previous convictions. Failure to complete successfully an approved program of instruction at a drug education school shall constitute grounds to revoke probation pursuant to this subsection and deny application for expunction of all recordation of defendant's arrest, indictment, or information, trial, finding of guilty, and dismissal and discharge pursuant to G.S. 15A-145.3 . For purposes of this subsection, the phrase "failure to complete successfully the prescribed program of instruction at a drug education school" includes failure to attend scheduled classes without a valid excuse, failure to complete the course within 150 days of imposition of probation, willful failure to pay the required fee for the course as provided in G.S. 90-96.01(b) , or any other manner in which the person fails to complete the course successfully. The instructor of the course to which a person is assigned shall report any failure of a person to complete successfully the program of instruction to the court which imposed probation. Upon receipt of the instructor's report that the person failed to complete the program successfully, the court shall revoke probation, shall not discharge such person, shall not dismiss the proceedings against the person, and shall deny application for expunction of all recordation of defendant's arrest, indictment, or information, trial, finding of guilty, and dismissal and discharge pursuant to G.S. 15A-145.3 . A person may obtain a hearing before the court of original jurisdiction prior to revocation of probation or denial of application for expunction. This subsection is supplemental and in addition to existing law and shall not be construed so as to repeal any existing provision contained in the General Statutes of North Carolina. History (1971, c. 1078; 1975, c. 650, ss. 3, 4; 1977, c. 642, s. 3; 1979, c. 431, ss. 3, 4; 1981, c. 51, s. 11; c. 922, ss. 5-7; 1997-443, s. 11A.118(a); 2009-510, s. 9(a)-(d); 2009-577, s. 7; 2010-174, ss. 13-15.) Editor's Note. - This section was amended by Session Laws 2009-510, s. 9(a)-(d) and by Session Laws 2009-577, s. 7 in the coded bill drafting format provided by G.S. 120-20.1 . Session Laws 2009-510 did not account for the extensive changes made to the section by Session Laws 2009-577, and subsections (b), (c), (d), and (e) have been set out in the form above at the direction of the Revisor of Statutes. Session Laws 2010-174, ss. 13 and 15 corrected the problem. Effect of Amendments. - Session Laws 2009-510, s. 9, effective October 1, 2010, in subsection (b), substituted "other than the confidential file retained by the Administrative Office of the Courts under G.S. 15A-151 ," for "(other than the confidential file to be retained by the Administrative Office of the Courts under subsection (c))" in the introductory paragraph and rewrote the last paragraph; in subsection (c), deleted the former second and third sentences in subsection (c), which read: "The clerk shall also file with the Administrative Office of the Courts the names of those persons granted a conditional discharge under the provisions of this Article, and the Administrative Office of the Court shall maintain a confidential file containing the names of persons granted conditional discharges. The information contained in such file shall be disclosed only to judges of the General Court of Justice of North Carolina for the purpose of ascertaining whether any person charged with an offense under Article 5 or 5A has been previously granted a conditional discharge.", and made a gender neutral change; added the present third sentence in subsection (d); and, in subsection (e), substituted "other than the confidential file retained by the Administrative Office of the Courts under G.S. 15A-151 ," for "(other than the confidential file to be retained by the Administrative Office of the Courts under subsection (c))" in the first paragraph, rewrote the present last paragraph and deleted the former last paragraph, which read: "The clerk of superior court in each county in North Carolina shall, as soon as practicable after each term of court in his county, file with the Administrative Office of the Courts the names of those persons whose judgments of convictions have been cancelled and expunged under the provisions of this Article, and the Administrative Office of the Courts shall maintain a confidential file containing the names of persons whose judgments of convictions have been cancelled and expunged. The information contained in the file shall be disclosed only to judges of the General Court of Justice of North Carolina for the purpose of ascertaining whether any person charged with an offense under this Article has been previously granted cancellation and expunction of a judgment of conviction pursuant to the terms of this Article." Session Laws 2010-174, ss. 13 through 15, effective October 1, 2010, and applicable to petitions for expunctions filed on or after that date, in subsection (b), deleted "other than the confidential file retained by the Administrative Office of the Courts under G.S. 15A-151 , notify State and local agencies of the court's order as provided in G.S. 15A-150 " at the end, and made minor stylistic changes; in subsection (d), deleted the former last sentence, which read: "The clerk shall notify State and local agencies of the court's order as provided in G.S. 15A-150 " and made a minor stylistic change; and, at the end of subsection (e), deleted "other than the confidential file retained by the Administrative Office of the Courts under G.S. 15A-151 , notify State and local agencies of the court's order as provided in G.S. 15A-150."