State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_90 > GS_90-113_14

§ 90‑113.14.  (Effectiveuntil October 1, 2010) Conditional discharge for first offenses.

(a)        Whenever any personwho has not previously been convicted of any offense under this Article orunder any statute of the United States or any state relating to thosesubstances included in Article 5 or 5A or 5B of Chapter 90 pleads guilty to oris found guilty of inhaling or possessing any substance having the property ofreleasing toxic vapors or fumes in violation of Article 5A of Chapter 90, thecourt may, without entering a judgment of guilt and with the consent of suchperson, defer further proceedings and place him on probation upon suchreasonable terms and conditions as it may require. Notwithstanding theprovisions of G.S. 15A‑1342(c) or any other statute or law, probation maybe imposed under this section for an offense under this Article for which theprescribed punishment includes only a fine. To fulfill the terms and conditionsof probation the court may allow the defendant to participate in a drug educationprogram approved for this purpose by the Department of Health and HumanServices. Upon violation of a term or condition, the court may enter anadjudication of guilt and proceed as otherwise provided. Upon fulfillment ofthe terms and conditions, the court shall discharge such person and dismiss theproceedings against him. Discharge and dismissal under this section shall bewithout court adjudication of guilt and shall not be deemed a conviction forpurposes of this section or for purposes of disqualifications or disabilitiesimposed by law upon conviction of a crime including the additional penaltiesimposed for second or subsequent convictions. Discharge and dismissal underthis section or G.S. 90‑96 may occur only once with respect to anyperson. Disposition of a case to determine discharge and dismissal under thissection at the district court division of the General Court of Justice shall befinal for the purpose of appeal. Prior to taking any action to discharge ordismiss under this section the court shall make a finding that the defendanthas no record of previous convictions under the "North Carolina ToxicVapors Act", Article 5A, Chapter 90, the "North Carolina ControlledSubstances Act", Article 5, Chapter 90, or the "Drug ParaphernaliaAct", Article 5B, Chapter 90.

(a1)      Upon the firstconviction only of any offense included in G.S. 90‑113.10 or 90‑113.11and subject to the provisions of this subsection (a1), the court may placedefendant on probation under this section for an offense under this Articleincluding an offense for which the prescribed punishment includes only a fine.The probation, if imposed, shall be for not less than one year and shallcontain a minimum condition that the defendant who was found guilty or pleadsguilty enroll in and successfully complete, within 150 days of the date of theimposition of said probation, the program of instruction at the drug educationschool 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 acondition that defendant successfully complete the program of instruction at adrug education school if:

(1)        There is no drugeducation school within a reasonable distance of the defendant's residence; or

(2)        There are specific,extenuating circumstances which make it likely that defendant will not benefitfrom the program of instruction.

The court shall enter suchspecific findings in the record; provided that in the case of subsection (2)above, such findings shall include the specific, extenuating circumstanceswhich make it likely that the defendant will not benefit from the program ofinstruction.

Upon fulfillment of the termsand conditions of the probation, the court shall discharge such person anddismiss the proceedings against the person.

For the purpose of determiningwhether the conviction is a first conviction or whether a person has alreadyhad discharge and dismissal, no prior offense occurring more than seven yearsbefore 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 completesuccessfully an approved program of instruction at a drug education schoolshall constitute grounds to revoke probation pursuant to this subsection anddeny application for expunction of all recordation of defendant's arrest,indictment, or information, trial, finding of guilty, and dismissal anddischarge pursuant to G.S. 15A‑145.3. For purposes of this subsection,the phrase "failure to complete successfully the prescribed program ofinstruction at a drug education school" includes failure to attendscheduled classes without a valid excuse, failure to complete the course within150 days of imposition of probation, willful failure to pay the required feefor the course as provided in G.S. 90‑96.01(b), or any other manner inwhich the person fails to complete the course successfully. The instructor ofthe course to which a person is assigned shall report any failure of a personto complete successfully the program of instruction to the court which imposedprobation. Upon receipt of the instructor's report that the person failed tocomplete the program successfully, the court shall revoke probation, shall notdischarge such person, shall not dismiss the proceedings against the person,and shall deny application for expunction of all recordation of defendant'sarrest, indictment, or information, trial, finding of guilty, and dismissal anddischarge pursuant to G.S. 15A‑145.3. A person may obtain a hearingbefore the court of original jurisdiction prior to revocation of probation ordenial of application for expunction.

This subsection issupplemental and in addition to existing law and shall not be construed so asto repeal any existing provision contained in the General Statutes of NorthCarolina.

(b)        Upon the dismissalof such person, and discharge of the proceedings against him under subsection(a) or (a1) of this section, such person, if he were not over 21 years of ageat the time of the offense, may be eligible to apply for expunction of certainrecords relating to the offense pursuant to G.S. 15A‑145.3(a).

(c)        The clerk of superiorcourt in each county in North Carolina shall, as soon as practicable after eachterm of court in his county, file with the Commission, the names of all personsconvicted under such Articles, together with the offense or offenses of whichsuch persons were convicted. The clerk shall also file with the AdministrativeOffice of the Courts the names of those persons granted a conditional dischargeunder the provisions of this Article, and the Administrative Office of theCourt shall maintain a confidential file containing the names of personsgranted conditional discharges. The information contained in such file shall bedisclosed only to judges of the General Court of Justice of North Carolina forthe purpose of ascertaining whether any person charged with an offense underArticle 5 or 5A has been previously granted a conditional discharge.

(d)        Whenever any personis charged with a misdemeanor under this Article or possessing drugparaphernalia as prohibited by G.S. 90‑113.22 upon dismissal by the Stateof the charges against him or upon entry of a nolle prosequi or upon a findingof not guilty or other adjudication of innocence, the person may be eligible toapply for expunction of certain records relating to the offense pursuant toG.S. 15A‑145.3(b).

(e)        Whenever any personwho has not previously been convicted of an offense under this Article or underany statute of the United States or any state relating to controlled substancesincluded in any schedule of Article 5 of Chapter 90 of the General Statutes or tothat paraphernalia included in Article 5B of Chapter 90 of the General Statutespleads 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 andexpunction of certain records related to the offense pursuant to G.S. 15A‑145.3(c). (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); 2009‑577,s. 7.)

§ 90‑113.14.  (EffectiveOctober 1, 2010) Conditional discharge for first offenses.

(a)        Whenever any personwho has not previously been convicted of any offense under this Article orunder any statute of the United States or any state relating to thosesubstances included in Article 5 or 5A or 5B of Chapter 90 pleads guilty to oris found guilty of inhaling or possessing any substance having the property ofreleasing toxic vapors or fumes in violation of Article 5A of Chapter 90, thecourt may, without entering a judgment of guilt and with the consent of suchperson, defer further proceedings and place him on probation upon suchreasonable terms and conditions as it may require. Notwithstanding theprovisions of G.S. 15A‑1342(c) or any other statute or law, probation maybe imposed under this section for an offense under this Article for which theprescribed punishment includes only a fine. To fulfill the terms and conditionsof probation the court may allow the defendant to participate in a drugeducation program approved for this purpose by the Department of Health andHuman Services. Upon violation of a term or condition, the court may enter anadjudication of guilt and proceed as otherwise provided. Upon fulfillment ofthe terms and conditions, the court shall discharge such person and dismiss theproceedings against him. Discharge and dismissal under this section shall bewithout court adjudication of guilt and shall not be deemed a conviction forpurposes of this section or for purposes of disqualifications or disabilitiesimposed by law upon conviction of a crime including the additional penaltiesimposed for second or subsequent convictions. Discharge and dismissal underthis section or G.S. 90‑96 may occur only once with respect to anyperson. Disposition of a case to determine discharge and dismissal under thissection at the district court division of the General Court of Justice shall befinal for the purpose of appeal. Prior to taking any action to discharge ordismiss under this section the court shall make a finding that the defendanthas no record of previous convictions under the "North Carolina ToxicVapors Act", Article 5A, Chapter 90, the "North Carolina ControlledSubstances Act", Article 5, Chapter 90, or the "Drug ParaphernaliaAct", Article 5B, Chapter 90.

(a1)      Upon the firstconviction only of any offense included in G.S. 90‑113.10 or 90‑113.11and subject to the provisions of this subsection (a1), the court may placedefendant on probation under this section for an offense under this Articleincluding an offense for which the prescribed punishment includes only a fine.The probation, if imposed, shall be for not less than one year and shallcontain a minimum condition that the defendant who was found guilty or pleadsguilty enroll in and successfully complete, within 150 days of the date of theimposition of said probation, the program of instruction at the drug educationschool 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 conditionthat defendant successfully complete the program of instruction at a drugeducation school if:

(1)        There is no drugeducation school within a reasonable distance of the defendant's residence; or

(2)        There are specific,extenuating circumstances which make it likely that defendant will not benefitfrom the program of instruction.

The court shall enter suchspecific findings in the record; provided that in the case of subsection (2)above, such findings shall include the specific, extenuating circumstanceswhich make it likely that the defendant will not benefit from the program ofinstruction.

Upon fulfillment of the termsand conditions of the probation, the court shall discharge such person anddismiss the proceedings against the person.

For the purpose of determiningwhether the conviction is a first conviction or whether a person has alreadyhad discharge and dismissal, no prior offense occurring more than seven yearsbefore 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 completesuccessfully an approved program of instruction at a drug education schoolshall constitute grounds to revoke probation pursuant to this subsection anddeny application for expunction of all recordation of defendant's arrest,indictment, or information, trial, finding of guilty, and dismissal anddischarge pursuant to G.S. 15A‑145.3. For purposes of this subsection,the phrase "failure to complete successfully the prescribed program ofinstruction at a drug education school" includes failure to attendscheduled classes without a valid excuse, failure to complete the course within150 days of imposition of probation, willful failure to pay the required feefor the course as provided in G.S. 90‑96.01(b), or any other manner inwhich the person fails to complete the course successfully. The instructor ofthe course to which a person is assigned shall report any failure of a personto complete successfully the program of instruction to the court which imposedprobation. Upon receipt of the instructor's report that the person failed tocomplete the program successfully, the court shall revoke probation, shall notdischarge such person, shall not dismiss the proceedings against the person,and shall deny application for expunction of all recordation of defendant'sarrest, indictment, or information, trial, finding of guilty, and dismissal anddischarge pursuant to G.S. 15A‑145.3. A person may obtain a hearingbefore the court of original jurisdiction prior to revocation of probation ordenial of application for expunction.

This subsection issupplemental and in addition to existing law and shall not be construed so asto repeal any existing provision contained in the General Statutes of NorthCarolina.

(b)        Upon the dismissalof such person, and discharge of the proceedings against him under subsection(a) or (a1) of this section, such person, if he were not over 21 years of ageat the time of the offense, may be eligible to apply for expunction of certainrecords relating to the offense pursuant to G.S. 15A‑145.3(a).

other than the confidentialfile 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.

(c)        The clerk ofsuperior court in each county in North Carolina shall, as soon as practicableafter each term of court in the clerk's county, file with the Commission, thenames of all persons convicted under such Articles, together with the offenseor offenses of which such persons were convicted.

(d)        Whenever any personis charged with a misdemeanor under this Article or possessing drugparaphernalia as prohibited by G.S. 90‑113.22 upon dismissal by the Stateof the charges against him or upon entry of a nolle prosequi or upon a findingof not guilty or other adjudication of innocence, the person may be eligible toapply for expunction of certain records relating to the offense pursuant toG.S. 15A‑145.3(b). The clerk shall notify State and local agencies of thecourt's order as provided in G.S. 15A‑150.

(e)        Whenever any personwho has not previously been convicted of an offense under this Article or underany statute of the United States or any state relating to controlled substancesincluded in any schedule of Article 5 of Chapter 90 of the General Statutes orto that paraphernalia included in Article 5B of Chapter 90 of the GeneralStatutes pleads guilty to or has been found guilty of a misdemeanor under thisArticle, the person may be eligible to apply for cancellation of the judgmentand expunction of certain records related to the offense pursuant to G.S. 15A‑145.3(c).

other than the confidentialfile 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.  (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.)