In New Jersey, under certain circumstances, many people who have a criminal record may be able to have that record “expunged.” Expungement is a procedure created by statute, to allow certain one-time offenders to effectively erase their criminal records. Expungement of a record means that an interrogation, detention, arrest, acquittal or conviction may be “deemed not to have occurred, and the [person] may answer any questions relating to their occurrence accordingly.”( NJS 2C:52-27).
The law makes clear that its primary objective is “providing relief to the one-time offender who has led a life of rectitude and disassociated himself from unlawful activity,,,” (NJS 2C:52-32). Repeat offenders need not apply. An exception may be made for up to two disorderly persons or petty disorderly persons offenses arising subsequent to the record to be expunged. These cases will usually require an appearance before a judge.
Records that may be expunged include complaints, warrants, arrests, commitments, processing records, fingerprints, photographs, index cards, “rap sheets” and judicial docket records. The court’s Order of Expungement applies to every court, detention or correctional facility, law enforcement or criminal justice agency within NJ’s criminal justice system. (NJS 2C:52-1). Expungements do not apply to arrests or convictions for motor vehicle offenses, including DWI, since they arise under the Motor Vehicle Code, not the Criminal Code. (NJS 2C:52-58)
There are many reasons to expunge a criminal record. The most common are employment-related. More and more employers are ordering criminal background checks on new, and existing, employees. Immigration and travel concerns prompt other people to seek expungement. They are concerned that their criminal records, however old or insignificant, may be a problem at some point during immigration or during international travel. Some people seek an expungement just for closure of an embarrassing event.
Although an attorney is not required to petition for an expungement, the process requires strict adherence to hearing dates, service of process requirements and mailing list completeness, and it may be helpful to have counsel. Nevertheless, the law and procedure of expungement are spelled out in the statute.
The availability of expungement in a particular case turns largely on the nature and date if the offense. In New Jersey, offenses are classified as indictable offenses (which can carry a sentence of a year or more in prison), disorderly persons offenses (DPOs), petty disorderly persons offenses (PDPOs) and municipal ordinance violations.
DPOs, PDPOs and municipal ordinances may all be expunged (subject to certain limited statutory exceptions), but many indictable offenses cannot be expunged. NJS 2C:52-2 lists the crimes that cannot be expunged – homicide, kidnapping, most sex offenses, robbery, kidnap, anarchy, manslaughter, sodomy, criminal restraint, endangering the welfare of a child and perjury, and conspiracies to commit these crimes are among these. A conviction for any crime (or conspiracy or attempt to commit such crime) by a public office holder or public employee similarly cannot be expunged if the crime “involved or touched such office, position or employment.” (NJS 2C:52-2b). A juvenile record of delinquency may be expunged, if the equivalent adult crime could be expunged.
A record of possession of a small quantity of drugs (CDS) may be expunged, but the sale or distribution of drugs is not. Neither is possession with the intent to sell. Exceptions are made for small quantities of hashish (5 grams) and Marijuana (25 grams) that were sold or possessed with the intent to sell. (NJS 2C:52-2c).
Once it is determined that the offense or event is one that may be expunged, it is essential to consider whether enough time has elapsed, since there is a substantial waiting period for expungements. The time period begins to run, not from the date of conviction alone, but from the date of conviction, payment of fine (in full), satisfactory completion of probation or parole, or release from custody, whichever is latest.
The period for indictable offenses is ten years; for disorderly persons offenses, petty disorderly persons offenses, and certain adjudications of juvenile delinquency, the period is five years. For municipal court violations, the period is two years. There is no waiting period for an arrest not resulting in conviction (NJS 2C:52-6), although a six-month period is imposed where a program or supervisory treatment had been required for the dismissal (NJS 2C:52-6(b)).
If the event is one that may be expunged, and the requisite time has lapsed, make sure that the petitioner is not the subject of any pending charges (NJS 2C:52-13), and that the petition will not be barred by one of the “grounds for denial of relief” listed in NJS 2C:52-14. If the petitioner still might qualify, the petition should be filed.
The process begins with the filing of a petition for expungement. The petition should be accompanied by a check in the amount of thirty dollars payable to the State Treasurer. The petition must be verified and must include the petitioner’s date of birth, date of arrest (if any). It must also include the statutes for which petitioner was arrested and/or convicted, the original indictment, summons or complaint number, the date of conviction or final disposition, and the disposition and punishment, if any. (NJS 2C:52-7).
The petitioner must attach to the petition a sworn statement that there are no criminal charges, DPOs or PDPOs pending against the petitioner at the time of application. Where petitioner seeks to expunge the record of a conviction, s/he must provide a statement that s/he has never had a previous expungement. Where a criminal case has been downgraded because of petitioner’s acceptance into supervisory treatment or a diversion program, the petitioner must provide a statement setting forth specific information concerning the original charge. (NJS 2C:52-9).
Once a petition has been properly filed, the court will grant an Order fixing a date for a hearing on the matter. The hearing will be scheduled not less than 35 days nor more than 60 days following filing. (NJS 2C:52-9). Within five days of the date of the signing of the order setting a hearing date, a copy of each petition, together with a copy of all supporting documents shall served, pursuant to the Rules of Court upon the following people or agencies:
a. the Superintendant of State Police,
b. the Attorney General of New Jersey,
c. the county prosecutor of the county wherein the court is located,
d. the Chief of Police…of the municipality wherein the offense was committed,
e. the chief law enforcement officer of any other law enforcement agency which participated in the arrest,
f. the superintendent or warden of any institution in which petitioner was confined; and
g. if the disposition was made by a municipal court, upon the magistrate of that court.
These parties are given an opportunity to voice an objection to the expungement. If, prior to the hearing, no one objects to the expungement, and there is no contrary reason listed in NJS 2C:52-14, the court may grant the order without the necessity of a hearing. (NJS 2C:52-11). Once the Order has been granted, the clerk of the court notifies the appropriate law enforcement and criminal justice agencies to expunge all relevant records.
The expungement procedure is uncomplicated, but exacting. It is a beneficent law. For an appropriate petitioner, expungement may reopen doors of opportunity that had been shut, bring peace of mind over some old loose ends, restore confidence in a discouraged job applicant and otherwise serve the stated purpose of aiding the one-time offender.
Source by Marc Garfinkle