Puff, puff, dismissed?
March 4, 2010 10:14 AM   Subscribe

My husband was arrested for paraphernalia possession but we got the charges dropped. Does he still have a record/does he re-qualify as a first offender? This is in NC and an extended explanation is inside.

In a medium-sized nutshell:

Last April husband and I went to a Grateful Dead reunion show. I grabbed something from our glove compartment right as an undercover cop was walking by, and he saw that there was an empty glass pipe in there. The pipe was empty and a search of my husband and I and the car turned up no marijuana; however, the cop decided one of us needed to be charged with paraphernalia possession. Husband said he wanted to be the one charged, so they did.

"Charging him" amounted to making us walk over to officer's car and officer filling out ticket with court date. We hired a lawyer for the court date and husband voluntarily completed a 4-month long outpatient rehab program. Between lawyering and voluntary rehab, the charges were "dismissed".

We later received a letter in the mail from the lawyer that said we can pay him to have husband's name completely removed from the record.

So my questions: if the charges were dismissed, what record does his name need to be expunged from?

Second: Considering the charges were dismissed he still qualifies as a first offender, right? I mean this in terms of whether we ever got caught with marijuana or paraphernalia again. Or am I incorrect in this assumption, and if we get caught again it's going to be a much bigger deal?

Third: if we get caught in a state other than North Carolina, are we considered first offenders in that state, or does this sort of thing apply on a federal level?

This happened in North Carolina. The incident happened in Greensboro and we live in Orange County.

Obviously we can ask the lawyer these questions, but I don't want to be all like, "so can we still smoke weed and be charged as first offenders again?" Thus, I am asking you.
posted by anonymous to Law & Government (8 answers total) 2 users marked this as a favorite
 
In my state, there's a publicly accessible arrest record -- "rap sheet" -- that will reflect that your husband was charged with the offense, and will also show that it was dismissed.

Where I practice, upon motion by the defendant, a dismissed charge can be expunged so that the arrest and dismissal does not show up. There's a good chance that what the lawyer is offering to do for a fee, you could do by showing up at the courthouse clerk's office and asking, "How do I get the record of the arrest expunged?" But it's possible you need an attorney to do it.
posted by jayder at 10:25 AM on March 4, 2010


You need to talk with your lawyer. Generally, expungement requires a second step. Call your lawyer.
posted by Ironmouth at 10:29 AM on March 4, 2010


I would try jayder's approach first and at least check with the clerk before going back to your lawyer. No need to pay the money if you don't have to.
posted by Aizkolari at 10:37 AM on March 4, 2010 [1 favorite]


Third: if we get caught in a state other than North Carolina, are we considered first offenders in that state, or does this sort of thing apply on a federal level?

In my state (not North Carolina), the dismissal of this paraphernalia charge would leave you eligible as a first offender for the deferred adjudication program that is only available for first offenders.

It doesn't sound like your husband was in a deferred adjudication program. It sounds like the prosecutor entered a nolle prosequi after your husband completed the outpatient rehab program.

I can't speak for any state's law but my own, but here he would still be considered a first offender for any future criminal charges that may be filed against him.

And don't worry about asking the lawyer if he would still be considered a first offender. Trust me, the lawyer will not blink an eye ... EVEN IF your husband says, "I want to continue smoking weed so I would like to make sure I'm still considered a first offender." Criminal lawyers are used to questions like that and you don't have to worry about any opprobrium in your lawyer's eyes.
posted by jayder at 10:37 AM on March 4, 2010


In Illinois, if the charges are dismissed you are there is sentence, thus no record. There is STILL the arrest record, which won't go away. Perhaps that is what your lawyer is offering to expunge?
posted by Max Power at 11:01 AM on March 4, 2010


meant to say "then there is no sentence .." sorry.
posted by Max Power at 11:02 AM on March 4, 2010


Obviously we can ask the lawyer these questions, but I don't want to be all like, "so can we still smoke weed and be charged as first offenders again?"

Why not? You don't have to phrase it as such. "What would happen if we were to be charged with another offense?" is less pointed then "Hey, we're going to smoke some weed."
posted by desjardins at 11:19 AM on March 4, 2010 [1 favorite]


You might want to check out NC State site on expungement. It seems that one expungement of your record in a lifetime, so use it wisely.

BTW, sorry to hear of your parking lot pain. I thought it was a great show.
posted by pappy at 5:25 PM on March 4, 2010 [1 favorite]


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