The 5 Ws of Expungements in New Jersey

By Joshua H. Reinitz, Esq

 America is built on second chances. The New Jersey Legislature has provided second chances for citizens convicted of crimes. This article will explore the Who, What, When, Where and Why of expungements in New Jersey and give some detail on how to get a record expunged. 

 The expungement law was first added to the New Jersey Criminal Code in 1979 and has been amended and updated several times since then.  Presently, the statute can be found at N.J.S.A. 2C:52-1 through 2C:52-30.  The text of the statute can be found on the New Jersey State Legislature's website at http://bit.ly/c6rA5O

 Who:   In light of the present economy competition for jobs is fierce.  Having to answer "Yes" to the question, "Have you ever been convicted of a crime?" increases the difficulty in getting hired or creates an awkward conversation with your future employer.  You can avoid this stress and anxiety with an expungement. Eligibility for an expungement doesn't require that you have been convicted of a crime.  Arrests resulting in a verdict of not guilty or being dismissed are eligible. 

 What:  N.J.S.A. 2C:52-2 explains which indictable crimes are eligible for expungement.  If you are a public officeholder or a licensed doctor additional bars may exist to expungement and you should consult the statute and a qualified attorney. 

 Section (b) of the statute notes the crimes which are not subject to expungement.  These crimes include but are not limited to: Homicide, Kidnapping, Human Trafficking, Aggravated Sexual Assault, Criminal Sexual Contact, Robbery, Arson, Endangering the Welfare of a Child, Perjury, Terrorism and Producing or Possessing Chemical Weapons. 

 Section (c) of the statute makes it impossible to expunge certain drug crimes.  These include distribution or sale of drugs or possession of illegal drugs with the intent to sell or distribute. This bar is not absolute as the legislature carved out exceptions when the crime involves marijuana or hashish in small quantities.  If the conviction is for a third or fourth degree drug sale, distribution or possession with the intent to distribute crime the court has discretion whether to grant an expungement and will base its decision on the public interest, the nature of the original crime and the character and conduct of the defendant in the time since conviction.

 Disorderly Persons Offenses and Petty Disorderly Persons Offenses are governed by N.J.S.A. 2C:52-3.  None of these offenses are individually barred from expungement.

Municipal Ordinances and arrests not resulting in conviction are eligible for expungement

 When: The clock for an expungement does not always begin counting down the day of sentencing.  In fact, you generally must wait until you pay a fine, complete probation or are released from incarceration, whichever is latest, before you can start counting the time necessary for an expungement. 

 The different types of crimes discussed above each have different waiting periods.  The legislature recently changed the expungement statute allowing for some indictable convictions to be expunged earlier than previously allowed.  You should always check with a qualified attorney and/or the current language of statute prior to attempting an expungement. Presently, the waiting periods for the eligible offenses outlined above are as follow

Indictable Convictions            10 years, however if there are compelling circumstances or it is in the "public interest" as few as 5 years.

Disorderly Persons                  5 years

Petty Disorderly Persons         5 years

Municipal Ordinances             2 years

Dismissals after P.T.I.             6 months

or Conditional Discharge

Arrests not resulting in            Immediately

conviction

Where:  A duly verified petition should be filed with the Clerk of the Superior Court in the vicinage in which the charges arose.  For example, if you were charged with a crime in Teaneck you must file your petition in Superior Court in Hackensack.  If you are attempting to expunge multiple convictions which occurred in different jurisdictions you may combine them into one petition as the venue rules are relaxed.

 Why:   The effect of an expungement is that the event expunged is considered to have never occurred.  While the records do not physically disappear they are segregated and only available in very specific circumstances.  You are permitted after an expungement to say on most job applications that you have not been convicted of a crime without violating the law.

There are exceptions as to when the expunged record may be used, these include setting bail or at sentencing for a future crime and considering applicants for employment within law enforcement, corrections and the judiciary.  Additionally, professional licensing boards may ask you to reveal expunged records as a requirement for granting you a license.

How:   There is a precise procedure required by statute for filing petitions for expungement.  You should consult an attorney prior to filing a petition to ensure you both meet the requirements and are correctly filing the petition as not only does the petition need to include very specific items, you must also serve the petition on several law enforcement agencies. Doing so properly the first time will both expedite the cleaning of your record and save you money in the long run.

This article is by no means an exhaustive review of the expungement process in New Jersey.  If you have questions about anything presented above or other questions about expunging your record please feel free to contact the author at jreinitz@iacullomartino.com or 973 235 1550.