North Carolina § 90-96 - Conditional discharge for first offense.

§ 90-96. Conditional discharge for first offense.

Whenever any person who has not previously been convicted of (i) any felony offense under any state or federal laws; (ii) any offense under this Article; or (iii) an offense under any statute of the United States or any state relating to those substances included in Article 5 or 5A of Chapter 90 or to that paraphernalia included in Article 5B of Chapter 90 of the General Statutes pleads guilty to or is found guilty of (i) a misdemeanor under this Article by possessing a controlled substance included within Schedules I through VI of this Article or by possessing drug paraphernalia as prohibited by G.S. 90-113.22 or G.S. 90-113.22A or (ii) a felony under G.S. 90-95(a)(3), the court shall, without entering a judgment of guilt and with the consent of the person, defer further proceedings and place the person on probation upon such reasonable terms and conditions as it may require, unless the court determines with a written finding, and with the agreement of the District Attorney, that the offender is inappropriate for a conditional discharge for factors related to the offense. 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 or in the Treatment for Effective Community Supervision Program under Subpart B of Part 6 of Article 13 of Chapter 143B of the General Statutes. 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 the person and dismiss the proceedings. 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 under this Article. Discharge and dismissal under this section or G.S. 90-113.14 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 and dismiss under this section the court shall make a finding that the defendant has no record of previous convictions as provided in this subsection. Upon the first conviction only of any offense which qualifies under the provisions of subsection (a) of this section, and the provisions of this subsection, 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 discharge of such person, and dismissal 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-145.2(a). Repealed by Session Laws 2009-510, s. 8(b), effective October 1, 2010. Whenever any person is charged with a misdemeanor under this Article by possessing a controlled substance included within Schedules I through VI of this Article or a felony under G.S. 90-95(a)(3), upon dismissal by the State of the charges against such person, 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-145.2(b). Whenever any person who has not previously been convicted of (i) any felony offense under any state or federal laws; (ii) any offense under this Article; or (iii) an offense under any statute of the United States or any state relating to controlled substances included in any schedule of this Article or to that paraphernalia included in Article 5B of Chapter 90 of the General Statutes pleads guilty to or has been found guilty of (i) a misdemeanor under this Article by possessing a controlled substance included within Schedules I through VI of this Article, or by possessing drug paraphernalia as prohibited by G.S. 90-113.22 or G.S. 90-113.22A, or (ii) a felony under G.S. 90-95(a)(3), 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-145.2(c). Repealed by Session Laws 2009-577, s. 6, effective December 1, 2009, and applicable to petitions for expunctions filed on or after that date. The court shall enter such specific findings in the record; provided that in the case of subdivision (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 purposes 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, or 90-113.22A 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-145.2 . 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-145.2 . 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. 919, s. 1; 1973, c. 654, s. 2; c. 1066; 1977, 2nd Sess., c. 1147, s. 11B; 1979, c. 431, ss. 3, 4; c. 550; 1981, c. 922, ss. 1-4; 1994, Ex. Sess., c. 11, s. 1.1; 1997-443, s. 11A.118(a); 2002-126, s. 29A.5(d); 2009-510, s. 8(a)-(d); 2009-577, s. 6; 2010-174, ss. 10-12; 2011-192, s. 5(a); 2013-210, s. 1; 2017-102, s. 38.) Editor's Note. - Session Laws 2011-192, s. 9, provides: "This act shall be known as 'The Justice Reinvestment Act of 2011'." Session Laws 2013-210, s. 2, made the amendment to subsection (a) of this section by Session Laws 2013-210, s. 1, applicable to offenses committed on or after December 1, 2013. Effect of Amendments. - Session Laws 2009-510, s. 8, 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 first sentence of the introductory paragraph, and rewrote the last paragraph of the subsection; repealed subsection (c) pertaining to maintenance of a confidential file of persons granted conditional discharges; added the 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 second 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 canceled 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 canceled 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. 10 through 12, 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 , agencies, the Department of Correction, the Division of Motor Vehicles, and any other State or local government agencies identified by the petitioner as 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 , agencies, the Department of Correction, the Division of Motor Vehicles, and any other State or local government agency identified by the petitioner as notify State and local agencies of the court's order as provided in G.S. 15A-150." Session Laws 2011-192, s. 5(a), effective January 1, 2012, and applicable to persons entering a plea or who are found guilty of an offense on or after that date, rewrote subsection (a); in the first sentence of subsection (a1), substituted "any offense which qualifies under the provisions of subsection (a) of this section, and the provisions of this subsection" for "any offense included in G.S. 90-95(a)(3) or G.S. 90-113.22 and subject to the provisions of this subsection (a1)"; in subsection (d), substituted "Schedules I through VI" for "Schedules II through VI" and deleted "by possessing less than one gram of cocaine" following "G.S. 90-95(a)(3)"; and in subsection (e), substituted the language "Whenever any person who has not previously been convicted . . . relating to controlled substances" for "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" and "Schedules I through VI" for "Schedules II through VI," and deleted "by possessing less than one gram of cocaine" following "G.S. 90-95(a)(3)." Session Laws 2013-210, s. 1, effective December 1, 2013, added "unless the court determines with a written finding, and with the agreement of the District Attorney, that the offender is inappropriate for a conditional discharge for factors related to the offense" at the end of the first sentence in subsection (a). For applicability, see Editor's note. Session Laws 2017-102, s. 38, effective July 12, 2017, inserted references to "G.S. 90-113.22A" in subsections (a), (a1) and (e) and made minor stylistic changes. Legal Periodicals. - For article, "Prior Crimes as Evidence in Present Criminal Trials," see 1 Campbell L. Rev. 1 (1979).