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04-07-2011, 10:31 AM
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2011
H D
HOUSE DRH50108-LH-10 (10/13)
Short Title: Amend Possession of Marijuana. (Public)
Sponsors: Representative K. Alexander.
Referred to:
*DRH50108-LH-10*
A BILL TO BE ENTITLED 1
AN ACT TO AMEND THE PENALTY IMPOSED FOR POSSESSION OF CERTAIN 2 QUANTITIES OF MARIJUANA AND TO PROVIDE FOR THE EXPUNCTION OF A 3 CLASS 3 MISDEMEANOR CONVICTION OF POSSESSION OF MARIJUANA THAT 4 OCCURRED PRIOR TO DECEMBER 1, 2011. 5
The General Assembly of North Carolina enacts: 6
SECTION 1. G.S. 90-95(d)(4) reads as rewritten: 7
"(d) Except as provided in subsections (h) and (i) of this section, any person who 8 violates G.S. 90-95(a)(3) with respect to: 9
â?¦ 10
(4) A controlled substance classified in Schedule VI shall be guilty of a Class 3 11 misdemeanor, but any sentence of imprisonment imposed must be suspended 12 and the judge may not require at the time of sentencing that the defendant 13 serve a period of imprisonment as a special condition of probation. If the 14 quantity of the controlled substance exceeds one-half of an ounce 15 (avoirdupois) of marijuana or one-twentieth of an ounce (avoirdupois) of the 16 extracted resin of marijuana, commonly known as hashish, the violation 17 shall be punishable as a Class 1 misdemeanor. If the quantity of the 18 controlled substance exceeds one and one-half ounces (avoirdupois) of 19 marijuana or three-twentieths of an ounce (avoirdupois) of the extracted 20 resin of marijuana, commonly known as hashish, or if the controlled 21 substance consists of any quantity of synthetic tetrahydrocannabinols or 22 tetrahydrocannabinols isolated from the resin of marijuana, the violation 23 shall be punishable as a Class I felony.punished as follows: 24
a. If the controlled substance is marijuana, the penalty is as follows: 25
1. If the quantity is less than one ounce (avoirdupois), the 26 violation is an infraction. 27
2. If the quantity is one ounce (avoirdupois) or more, but less 28 than one and one-half ounces (avoirdupois), the violation is a 29 Class 3 misdemeanor. However, any sentence of 30 imprisonment imposed must be suspended, and the judge may 31 not require at the time of sentencing that the defendant serve 32 a period of imprisonment as a special condition of probation. 33
General Assembly of North Carolina Session 2011
Page 2 H324 [Filed]
3. If the quantity is one and one-half ounces (avoirdupois) or 1 more, but less than two ounces (avoirdupois), the violation is 2 a Class 1 misdemeanor. 3
4. If the quantity is two ounces (avoirdupois) or more, the 4 violation is a Class I felony. 5
b. If the controlled substance is the extracted resin of marijuana, 6 commonly known as hashish, the penalty is as follows: 7
1. If the quantity is one-twentieth of an ounce (avoirdupois) or 8 less, the violation is a Class 3 misdemeanor. However, any 9 sentence of imprisonment imposed must be suspended, and 10 the judge may not require at the time of sentencing that the 11 defendant serve a period of imprisonment as a special 12 condition of probation. 13
2. If the quantity is three-twentieths of an ounce (avoirdupois) 14 or less, but more than one-twentieth of an ounce 15 (avoirdupois), the violation is a Class 1 misdemeanor. 16
3. If the quantity is more than three-twentieths of an ounce 17 (avoirdupois), the violation is a Class I felony. 18
c. If the controlled substance consists of any quantity of synthetic 19 tetrahydrocannabinols or tetrahydrocannabinols isolated from the 20 resin of marijuana, the violation is a Class I felony." 21
SECTION 2. Article 5 of Chapter 15A of the General Statutes is amended by 22 adding a new section to read: 23
"§ 15A-145.4. Expunction of certain possession of marijuana offenses. 24
(a) A person who was convicted of a Class 3 misdemeanor under G.S. 90-95(d)(4) for 25 possession of marijuana before December 1, 2011, and who has not previously been convicted 26 of any felony or misdemeanor other than a traffic violation under the laws of the United States 27 or the laws of this State or any other state may, in the court where the person was convicted, 28 file a petition for expunction of the offense from the person's criminal record. The petition 29 cannot be filed earlier than (i) two years after the date of the conviction or (ii) the completion of 30 any period of probation, whichever occurs later. 31
(b) The petition shall contain, but not be limited to, the following: 32
(1) An affidavit by the petitioner that the petitioner has been of good behavior 33 for the period since the date of conviction of the misdemeanor in question or 34 since the completion of any period of probation, whichever occurs later, and 35 has not been convicted of any felony or misdemeanor other than a traffic 36 violation under the laws of the United States or the laws of this State or any 37 other state. 38
(2) Verified affidavits of two persons who are not related to the petitioner or to 39 each other by blood or marriage, that they know the character and reputation 40 of the petitioner in the community in which the petitioner lives and that the 41 petitioner's character and reputation are good. 42
(3) A statement that the petition is a motion in the cause in the case wherein the 43 petitioner was convicted. 44
(4) An application on a form approved by the Administrative Office of the 45 Courts requesting and authorizing a name-based State and national criminal 46 history record check by the Department of Justice using any information 47 required by the Administrative Office of the Courts to identify the individual 48 and a search of the confidential record of expunctions maintained by the 49 Administrative Office of the Courts. The application shall be forwarded to 50
General Assembly of North Carolina Session 2011
H324 [Filed] Page 3
the Department of Justice and to the Administrative Office of the Courts, 1 which shall conduct the searches and report their findings to the court. 2
(5) An affidavit by the petitioner that no restitution orders or civil judgments 3 representing amounts ordered for restitution entered against the petitioner 4 are outstanding. 5
(c) The petition shall be served upon the district attorney of the court wherein the case 6 was tried resulting in conviction. The district attorney shall have 10 days thereafter in which to 7 file any objection thereto and shall be duly notified as to the date of the hearing of the petition. 8
(d) The judge to whom the petition is presented may call upon a probation officer for 9 any additional investigation or verification of the petitioner's conduct during the time period 10 that has lapsed since the date of the conviction or completion of probation that the judge deems 11 desirable. 12
(e) If the court, after hearing, finds that the petitioner has remained of good behavior 13 and been free of conviction of any felony or misdemeanor, other than a traffic violation, for the 14 period of time from the date of conviction of the misdemeanor in question or the completion of 15 any period of probation, as appropriate, and the petitioner has no outstanding restitution orders 16 or civil judgments representing amounts ordered for restitution entered against the petitioner, 17 the court shall order that the petitioner be restored, in the contemplation of the law, to the status 18 the petitioner occupied before such arrest or indictment or information. 19
No person as to whom such order has been entered shall be held thereafter under any 20 provision of any laws to be guilty of perjury or otherwise giving a false statement by reason of 21 the person's failure to recite or acknowledge such arrest, or indictment, information, or trial, or 22 response to any inquiry made of the person for any purpose. 23
(f) The court shall also order that the misdemeanor conviction be expunged from the 24 records of the court. The court shall direct all law enforcement agencies, the Department of 25 Correction, the Division of Motor Vehicles, and any other State or local government agencies 26 identified by the petitioner as bearing record of the same to expunge their records of the 27 petitioner's conviction or a civil revocation of a drivers license as the result of a criminal 28 charge. This subsection does not apply to civil or criminal charges based upon the civil 29 revocation, or to civil revocations under G.S. 20-16.2. The clerk shall notify State and local 30 agencies of the court's order as provided in G.S. 15A-150. The clerk shall forward a certified 31 copy of the order to the Division of Motor Vehicles for the expunction of a civil revocation, 32 provided the underlying criminal charge is also expunged. 33
(g) A person who files a petition for expunction of a criminal record under this section 34 must pay the clerk of superior court a fee of one hundred twenty-five dollars ($125.00) at the 35 time the petition is filed. Fees collected under this subsection shall be deposited in the General 36 Fund. This subsection does not apply to petitions filed by an indigent." 37
SECTION 3. This act becomes effective December 1, 2011. 38
SESSION 2011
H D
HOUSE DRH50108-LH-10 (10/13)
Short Title: Amend Possession of Marijuana. (Public)
Sponsors: Representative K. Alexander.
Referred to:
*DRH50108-LH-10*
A BILL TO BE ENTITLED 1
AN ACT TO AMEND THE PENALTY IMPOSED FOR POSSESSION OF CERTAIN 2 QUANTITIES OF MARIJUANA AND TO PROVIDE FOR THE EXPUNCTION OF A 3 CLASS 3 MISDEMEANOR CONVICTION OF POSSESSION OF MARIJUANA THAT 4 OCCURRED PRIOR TO DECEMBER 1, 2011. 5
The General Assembly of North Carolina enacts: 6
SECTION 1. G.S. 90-95(d)(4) reads as rewritten: 7
"(d) Except as provided in subsections (h) and (i) of this section, any person who 8 violates G.S. 90-95(a)(3) with respect to: 9
â?¦ 10
(4) A controlled substance classified in Schedule VI shall be guilty of a Class 3 11 misdemeanor, but any sentence of imprisonment imposed must be suspended 12 and the judge may not require at the time of sentencing that the defendant 13 serve a period of imprisonment as a special condition of probation. If the 14 quantity of the controlled substance exceeds one-half of an ounce 15 (avoirdupois) of marijuana or one-twentieth of an ounce (avoirdupois) of the 16 extracted resin of marijuana, commonly known as hashish, the violation 17 shall be punishable as a Class 1 misdemeanor. If the quantity of the 18 controlled substance exceeds one and one-half ounces (avoirdupois) of 19 marijuana or three-twentieths of an ounce (avoirdupois) of the extracted 20 resin of marijuana, commonly known as hashish, or if the controlled 21 substance consists of any quantity of synthetic tetrahydrocannabinols or 22 tetrahydrocannabinols isolated from the resin of marijuana, the violation 23 shall be punishable as a Class I felony.punished as follows: 24
a. If the controlled substance is marijuana, the penalty is as follows: 25
1. If the quantity is less than one ounce (avoirdupois), the 26 violation is an infraction. 27
2. If the quantity is one ounce (avoirdupois) or more, but less 28 than one and one-half ounces (avoirdupois), the violation is a 29 Class 3 misdemeanor. However, any sentence of 30 imprisonment imposed must be suspended, and the judge may 31 not require at the time of sentencing that the defendant serve 32 a period of imprisonment as a special condition of probation. 33
General Assembly of North Carolina Session 2011
Page 2 H324 [Filed]
3. If the quantity is one and one-half ounces (avoirdupois) or 1 more, but less than two ounces (avoirdupois), the violation is 2 a Class 1 misdemeanor. 3
4. If the quantity is two ounces (avoirdupois) or more, the 4 violation is a Class I felony. 5
b. If the controlled substance is the extracted resin of marijuana, 6 commonly known as hashish, the penalty is as follows: 7
1. If the quantity is one-twentieth of an ounce (avoirdupois) or 8 less, the violation is a Class 3 misdemeanor. However, any 9 sentence of imprisonment imposed must be suspended, and 10 the judge may not require at the time of sentencing that the 11 defendant serve a period of imprisonment as a special 12 condition of probation. 13
2. If the quantity is three-twentieths of an ounce (avoirdupois) 14 or less, but more than one-twentieth of an ounce 15 (avoirdupois), the violation is a Class 1 misdemeanor. 16
3. If the quantity is more than three-twentieths of an ounce 17 (avoirdupois), the violation is a Class I felony. 18
c. If the controlled substance consists of any quantity of synthetic 19 tetrahydrocannabinols or tetrahydrocannabinols isolated from the 20 resin of marijuana, the violation is a Class I felony." 21
SECTION 2. Article 5 of Chapter 15A of the General Statutes is amended by 22 adding a new section to read: 23
"§ 15A-145.4. Expunction of certain possession of marijuana offenses. 24
(a) A person who was convicted of a Class 3 misdemeanor under G.S. 90-95(d)(4) for 25 possession of marijuana before December 1, 2011, and who has not previously been convicted 26 of any felony or misdemeanor other than a traffic violation under the laws of the United States 27 or the laws of this State or any other state may, in the court where the person was convicted, 28 file a petition for expunction of the offense from the person's criminal record. The petition 29 cannot be filed earlier than (i) two years after the date of the conviction or (ii) the completion of 30 any period of probation, whichever occurs later. 31
(b) The petition shall contain, but not be limited to, the following: 32
(1) An affidavit by the petitioner that the petitioner has been of good behavior 33 for the period since the date of conviction of the misdemeanor in question or 34 since the completion of any period of probation, whichever occurs later, and 35 has not been convicted of any felony or misdemeanor other than a traffic 36 violation under the laws of the United States or the laws of this State or any 37 other state. 38
(2) Verified affidavits of two persons who are not related to the petitioner or to 39 each other by blood or marriage, that they know the character and reputation 40 of the petitioner in the community in which the petitioner lives and that the 41 petitioner's character and reputation are good. 42
(3) A statement that the petition is a motion in the cause in the case wherein the 43 petitioner was convicted. 44
(4) An application on a form approved by the Administrative Office of the 45 Courts requesting and authorizing a name-based State and national criminal 46 history record check by the Department of Justice using any information 47 required by the Administrative Office of the Courts to identify the individual 48 and a search of the confidential record of expunctions maintained by the 49 Administrative Office of the Courts. The application shall be forwarded to 50
General Assembly of North Carolina Session 2011
H324 [Filed] Page 3
the Department of Justice and to the Administrative Office of the Courts, 1 which shall conduct the searches and report their findings to the court. 2
(5) An affidavit by the petitioner that no restitution orders or civil judgments 3 representing amounts ordered for restitution entered against the petitioner 4 are outstanding. 5
(c) The petition shall be served upon the district attorney of the court wherein the case 6 was tried resulting in conviction. The district attorney shall have 10 days thereafter in which to 7 file any objection thereto and shall be duly notified as to the date of the hearing of the petition. 8
(d) The judge to whom the petition is presented may call upon a probation officer for 9 any additional investigation or verification of the petitioner's conduct during the time period 10 that has lapsed since the date of the conviction or completion of probation that the judge deems 11 desirable. 12
(e) If the court, after hearing, finds that the petitioner has remained of good behavior 13 and been free of conviction of any felony or misdemeanor, other than a traffic violation, for the 14 period of time from the date of conviction of the misdemeanor in question or the completion of 15 any period of probation, as appropriate, and the petitioner has no outstanding restitution orders 16 or civil judgments representing amounts ordered for restitution entered against the petitioner, 17 the court shall order that the petitioner be restored, in the contemplation of the law, to the status 18 the petitioner occupied before such arrest or indictment or information. 19
No person as to whom such order has been entered shall be held thereafter under any 20 provision of any laws to be guilty of perjury or otherwise giving a false statement by reason of 21 the person's failure to recite or acknowledge such arrest, or indictment, information, or trial, or 22 response to any inquiry made of the person for any purpose. 23
(f) The court shall also order that the misdemeanor conviction be expunged from the 24 records of the court. The court shall direct all law enforcement agencies, the Department of 25 Correction, the Division of Motor Vehicles, and any other State or local government agencies 26 identified by the petitioner as bearing record of the same to expunge their records of the 27 petitioner's conviction or a civil revocation of a drivers license as the result of a criminal 28 charge. This subsection does not apply to civil or criminal charges based upon the civil 29 revocation, or to civil revocations under G.S. 20-16.2. The clerk shall notify State and local 30 agencies of the court's order as provided in G.S. 15A-150. The clerk shall forward a certified 31 copy of the order to the Division of Motor Vehicles for the expunction of a civil revocation, 32 provided the underlying criminal charge is also expunged. 33
(g) A person who files a petition for expunction of a criminal record under this section 34 must pay the clerk of superior court a fee of one hundred twenty-five dollars ($125.00) at the 35 time the petition is filed. Fees collected under this subsection shall be deposited in the General 36 Fund. This subsection does not apply to petitions filed by an indigent." 37
SECTION 3. This act becomes effective December 1, 2011. 38