GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2011

H                                                                                                                                                    1

HOUSE BILL 324

 

 

Short Title:        Amend Possession of Marijuana.

(Public)

Sponsors:

Representatives K. Alexander and Hall (Primary Sponsors).

For a complete list of Sponsors, see Bill Information on the NCGA Web Site.

Referred to:

Rules, Calendar, and Operations of the House.

March 14, 2011

A BILL TO BE ENTITLED

AN ACT to amend the penalty imposed for possession of certain quantities of marijuana and to provide for the expunction of a Class 3 Misdemeanor conviction of possession of marijuana that occurred prior to December 1, 2011.

The General Assembly of North Carolina enacts:

SECTION 1.  G.S. 90-95(d)(4) reads as rewritten:

"(d)      Except as provided in subsections (h) and (i) of this section, any person who violates G.S. 90-95(a)(3) with respect to:

(4)        A controlled substance classified in Schedule VI shall be guilty of a Class 3 misdemeanor, but any sentence of imprisonment imposed must be suspended and the judge may not require at the time of sentencing that the defendant serve a period of imprisonment as a special condition of probation. If the quantity of the controlled substance exceeds one-half of an ounce (avoirdupois) of marijuana or one-twentieth of an ounce (avoirdupois) of the extracted resin of marijuana, commonly known as hashish, the violation shall be punishable as a Class 1 misdemeanor. If the quantity of the controlled substance exceeds one and one-half ounces (avoirdupois) of marijuana or three-twentieths of an ounce (avoirdupois) of the extracted resin of marijuana, commonly known as hashish, or if the controlled substance consists of any quantity of synthetic tetrahydrocannabinols or tetrahydrocannabinols isolated from the resin of marijuana, the violation shall be punishable as a Class I felony.punished as follows:

a.         If the controlled substance is marijuana, the penalty is as follows:

1.         If the quantity is less than one ounce (avoirdupois), the violation is an infraction.

2.         If the quantity is one ounce (avoirdupois) or more, but less than one and one-half ounces (avoirdupois), the violation is a Class 3 misdemeanor. However, any sentence of imprisonment imposed must be suspended, and the judge may not require at the time of sentencing that the defendant serve a period of imprisonment as a special condition of probation.

3.         If the quantity is one and one-half ounces (avoirdupois) or more, but less than two ounces (avoirdupois), the violation is a Class 1 misdemeanor.

4.         If the quantity is two ounces (avoirdupois) or more, the violation is a Class I felony.

b.         If the controlled substance is the extracted resin of marijuana, commonly known as hashish, the penalty is as follows:

1.         If the quantity is one-twentieth of an ounce (avoirdupois) or less, the violation is a Class 3 misdemeanor. However, any sentence of imprisonment imposed must be suspended, and the judge may not require at the time of sentencing that the defendant serve a period of imprisonment as a special condition of probation.

2.         If the quantity is three-twentieths of an ounce (avoirdupois) or less, but more than one-twentieth of an ounce (avoirdupois), the violation is a Class 1 misdemeanor.

3.         If the quantity is more than three-twentieths of an ounce (avoirdupois), the violation is a Class I felony.

c.         If the controlled substance consists of any quantity of synthetic tetrahydrocannabinols or tetrahydrocannabinols isolated from the resin of marijuana, the violation is a Class I felony."

SECTION 2.  Article 5 of Chapter 15A of the General Statutes is amended by adding a new section to read:

" 15A-145.4.  Expunction of certain possession of marijuana offenses.

(a)        A person who was convicted of a Class 3 misdemeanor under G.S. 90-95(d)(4) for possession of marijuana before December 1, 2011, and who has not previously been convicted of any felony or misdemeanor other than a traffic violation under the laws of the United States or the laws of this State or any other state may, in the court where the person was convicted, file a petition for expunction of the offense from the person's criminal record. The petition cannot be filed earlier than (i) two years after the date of the conviction or (ii) the completion of any period of probation, whichever occurs later.

(b)        The petition shall contain, but not be limited to, the following:

(1)        An affidavit by the petitioner that the petitioner has been of good behavior for the period since the date of conviction of the misdemeanor in question or since the completion of any period of probation, whichever occurs later, and has not been convicted of any felony or misdemeanor other than a traffic violation under the laws of the United States or the laws of this State or any other state.

(2)        Verified affidavits of two persons who are not related to the petitioner or to each other by blood or marriage, that they know the character and reputation of the petitioner in the community in which the petitioner lives and that the petitioner's character and reputation are good.

(3)        A statement that the petition is a motion in the cause in the case wherein the petitioner was convicted.

(4)        An application on a form approved by the Administrative Office of the Courts requesting and authorizing a name-based State and national criminal history record check by the Department of Justice using any information required by the Administrative Office of the Courts to identify the individual and a search of the confidential record of expunctions maintained by the Administrative Office of the Courts. The application shall be forwarded to the Department of Justice and to the Administrative Office of the Courts, which shall conduct the searches and report their findings to the court.

(5)        An affidavit by the petitioner that no restitution orders or civil judgments representing amounts ordered for restitution entered against the petitioner are outstanding.

(c)        The petition shall be served upon the district attorney of the court wherein the case was tried resulting in conviction. The district attorney shall have 10 days thereafter in which to file any objection thereto and shall be duly notified as to the date of the hearing of the petition.

(d)        The judge to whom the petition is presented may call upon a probation officer for any additional investigation or verification of the petitioner's conduct during the time period that has lapsed since the date of the conviction or completion of probation that the judge deems desirable.

(e)        If the court, after hearing, finds that the petitioner has remained of good behavior and been free of conviction of any felony or misdemeanor, other than a traffic violation, for the period of time from the date of conviction of the misdemeanor in question or the completion of any period of probation, as appropriate, and the petitioner has no outstanding restitution orders or civil judgments representing amounts ordered for restitution entered against the petitioner, the court shall order that the petitioner be restored, in the contemplation of the law, to the status the petitioner occupied before such arrest or indictment or information.

 No person as to whom such order has been entered shall be held thereafter under any provision of any laws to be guilty of perjury or otherwise giving a false statement by reason of the person's failure to recite or acknowledge such arrest, or indictment, information, or trial, or response to any inquiry made of the person for any purpose.

(f)         The court shall also order that the misdemeanor conviction be expunged from the records of the court. The court shall direct all law enforcement agencies, the Department of Correction, the Division of Motor Vehicles, and any other State or local government agencies identified by the petitioner as bearing record of the same to expunge their records of the petitioner's conviction or a civil revocation of a drivers license as the result of a criminal charge. This subsection does not apply to civil or criminal charges based upon the civil revocation, or to civil revocations under G.S. 20-16.2. The clerk shall notify State and local agencies of the court's order as provided in G.S. 15A-150. The clerk shall forward a certified copy of the order to the Division of Motor Vehicles for the expunction of a civil revocation, provided the underlying criminal charge is also expunged.

(g)        A person who files a petition for expunction of a criminal record under this section must pay the clerk of superior court a fee of one hundred twenty-five dollars ($125.00) at the time the petition is filed. Fees collected under this subsection shall be deposited in the General Fund. This subsection does not apply to petitions filed by an indigent."

SECTION 3.  This act becomes effective December 1, 2011.