Can I Get an Expungement

By August 27, 2016Expungement
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In New Jersey “expungement” means the separation and sealing of criminal records on file with a court or correctional facility that concern a persons arrest, detention, trial, or conviction within the criminal justice system. Records that may be expunged include complaints filed against a person, warrants for a persons arrest, arrests, fingerprints, photographs, “rap sheets”, and judicial docket records.

Advantages of expungement

Expungement allows a person to start his life all over again without the negative effects of having a criminal record. A person can apply for jobs, such as a nurse, without having to disclose their criminal record. This is because an expunged crime is considered, legally, to have never happened.

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Criminal background checks will not pick up any expunged criminal records. The FBI record of the crime will be cleared. The only time a person is obligated to disclose their criminal record is when applying for a job in law enforcement, the judicial government branch, or corrections. Also, an immigrant who has a criminal record may need to disclose his criminal background upon reentry into the country.

Thus, for obvious reasons expungement is a useful means of protecting a person’s privacy. It allows criminal records deemed not inherently dangerous to be isolated. This prevents the public from gaining access to a person’s criminal record. Protecting the privacy of a person’s criminal record poses two legal issues: 1) who is eligible for expungement and 2) the legal advantages of expungement.

Eligibility for expungement

employee-testingEligibility for expungment is determined by the type of crime committed, by how many years have passed after the crime, and by the particular state where the crime took place. In New Jersey, a number of convictions can be expunged including disorderly conduct, theft and shoplifting, drug related offenses, municipal violations, misdemeanors, felonies, and juvenile offenses. After one has completed the sentence for their crime, sufficient time needs to pass to apply for an expungement.

Rules vary depending on the type of offense such as petty disorderly persons, disorderly persons, municipal ordinance violation, indictable offense, juvenile delinquent, youth drug offense, and arrest not resulting in a conviction. Generally, a person can apply for expungement only once (there are two narrow exceptions to this rule: N.J.S. 2C:52-14. See below).

Even if a person is never convicted, he will retain an arrest record that can only be cleared by an expungement. This can be the case if the person is found not guilty, enrolls in a diversionary program, or the charges are dismissed for other reasons.

There are some serious crimes that cannot be expunged in New Jersey; these include murder, manslaughter, treason, kidnapping, rape, arson, robbery, endangering the welfare of the child and other serious crimes like these. If you committed a crime while you were in public office or public employment, then it cannot be expunged. If the crime you committed relates to the sale or distribution of controlled substances (drugs), then it may only be expunged if it involved less than 25 grams of Marijuana or Hashish, or a crime of the third of fouth degree. (NJS 2C:52-2). Other non-serious drug crimes may be expunged if a court decides it is appropriate to do so.

Furthermore, traffic offenses like speeding, parking tickets, and driving while intoxicated (DWI) are not eligible for expungement. (N.J.S. 2C:52-28). With a few exceptions, these violations appear on your traffic, not criminal, record. However there are a few may be a few exceptions.

Here are more details on the type of time and eligibility rules:

121958_122042Arrest not resulting a conviction (dismissed charges). If you received Pretrial Intervention (PTI), Conditional Discharge, Juvenille Conference Committee (JCC), Intake Service Conference, or Deferred Disposition, then you may expunge your record 6 months after the completion of any sentence you received (usually probation). If you were charged with a crime, but not convicted (found not guilty, not enough evidence, charges dropped, etc.), then you may at any time apply for your record to be expunged, unless the dismissal resulted from insanity or the mental inability to commit the crime. (N.J.S. 2C:52-6). Learn more about arrest record expungement.

Misdemeanors (disorderly persons). In New Jersey a disorderly persons or petty disorderly persons offense is the equivalent of a misdemeanor. You may be eligible to clear a misdemeanor offense if you have not been 3 misdemeanors in total, and more than 5 or 3 years have passed from the date of your conviction, payment of fine, completion of probation or parole, or release from jail. (N.J.S. 2C:52-3). Furthermore, if you were also convicted of a felony, then you must not have more than 2 misdemeanor convictions in total. Learn more about misdemeanor  expungement.

Felonies (indictable offenses). In New Jersey an indictable offense (commonly referred to as a crime) is the equivalent of a felony and can be of the first, second, third, or fourth degree. You may be eligible to expunge an indictable offense if you have not been convicted of any other indictable offense in New Jersey or anywhere else or of three or more disorderly person offenses, and more than 10 or 5 years have passed from the date of your conviction, payment of fine, completion of probation or parole, or release from jail, whichever is later.  There are two exceptions to this general ten-year rule and you may be able to clear your record sooner. (N.J.S. 2C:52-2).

Youth Drug OffenseIf you were convicted of possession of drugs and were under 21 years old, then after 1 year you may apply for expungement, which may be granted if you have not violated your parole/probation or committed another crime. You may also be able to clear drug distribution charges involving marijuana or hashish. (N.J.S. 2C:52-5). Learn more about youth drug offense expungement.

Municipal Ordinance. Municipal ordinances are laws of local governments, whereas the criminal code has laws that cover all of New Jersey. A violation of a municipal ordinance may be expunged if you have not been convicted of any indictable offense or of three or more disorderly persons offenses, and more than 2 years have passed from the date of your conviction, payment of fine, completion of probation or parole, or release from jail. (N.J.S. 2C:52-4). Learn more about municipal ordinance violation expungement.

Juvenile Delinquent. In General, if you were convicted of being a juvenile delinquent (the equivalent of a conviction), you may apply to have your record expunged if an adult convicted of the same crime would be eligible. Furthermore, you may be able to expunge your entire record of delinquency if you have gone 5 years without another conviction. (N.J.S. 2C:52-4.1). Learn more about juvenile expungement.

More Than One Arrest

1297478496403_ORIGINALIn New Jersey, expungement law becomes less straight forward when you have multiple convictions. Some combinations of convictions are eligible, while others are not. Further, it does not matter whether the crimes were prosecuted within or outside of New Jersey. Depending on the severity of your crime, there are three possible outcomes:

  • You are eligible to expunge all your convictions
  • Some of your convictions are eligible, while others are not or
  • None of your convictions are eligible.

Not eligible at all

Generally, the more convictions you have, the less likely you are eligible to expunge your record. The following are situations where you are unable to expunge any of your convictions:

  • You have 2 or more felony convictions.
  • You have 4 or more misdemeanor convictions.
  • You have 1 felony and 3 or more misdemeanors.

Some eligible, some ineligible

Some combinations of convictions will prevent you from clearing some, but not all, of your record. Here are some situations where this may be true.

  • If you have 3 misdemeanor convictions, you may expunge them, but not any municipal ordinance violations.

All eligible

You may be able to expunge your entire criminal record if your convictions were relatively minor. Here are some examples:

  • You’ve been convicted of only municipal ordinance violations.
  • You’ve been convicted of 2 or less misdemeanors and 1 or more municipal ordinance violations.
  • You’ve been convicted of 1 felony and 2 or less misdemeanors.

Dismissed charges

Arrests not resulting in conviction may always be expunged, regardless of the number of convictions you have. This includes situations where you completed a diversion program, charges were dropped, or you were found not guilty.

PTI or Conditional Discharge

If you successfully completed a diversionary program, such as PTI or Conditional Discharge, you may expunge your record related to that crime. However, you will be ineligible to expunge any other prior or subsequent convictions. (N.J.S. 2C:54-14(f)). For example, if you completed PTI, but got in trouble again with a misdemeanor, you can only expunge the PTI and not the misdemeanor.

How Many Times Can You Get an Expungement

Archive-Document-StorageGenerally, you may only receive an expungement once. (N.J.S. 2C:52-14). Therefore, you should try to expunge all eligible records at one time. After receiving your first expungement, if you are convicted for another crime, you will not be able to expunge that conviction.

Example. Bob was arrested in 2004 for shoplifting and received probation. After successfully completing probation, he applied for an expungement and received it. Thus, his shoplifting record was sealed and isolated from the public. In 2010, Bob was arrested again and convicted for drug possession. Since he already received an expungement for the shoplifting case, she will not be able to expunge her drug possession records.

Exceptions

There are two exceptions to this rule:

  1. You are allowed to expunge arrests and charges that do not result in conviction or are dismissed. There are many reasons an arrest might not result in a conviction, including a finding of not guilty, a lack of evidence, political pressures, or participation in a diversion program. Sometimes the prosecutor will decide to dismiss the case for unknown reasons. In these instances, a person is eligible to dismiss any records of the case regardless of a previous expungement.
    • Example. Instead of getting convicted for drug possession in 2010, Bob is found not guilty. He will be able to expunge any records related to that case despite his previous expungement of the shop lifting case.
  2. You are still allowed to get an expungement if you are seeking to clear records of a municipal ordinance violation.
    • Example. Instead of getting arrested for drug possession in 2010, Bob was arrested for posting flyers near a construction zone in New Brunswick, which is a violation of the city’s municipal code. In this scenario, despite the fact that Bob has previously received an expungement for shop lifting, Bob is able to apply for another expungement for posting flyers because it is a municipal violation.

Why Are Expungements Denied

In general, there are two scenarios in which your NJ expungement can be denied:

  1. You are not eligible
  2. Someone objects your petition

Denial based on ineligibility

Prior Convictions.  In order for an expungement petition to be eligible, a number of requirements must be met. One significant requirement is that an individual must not have too many prior convictions. Although there is no limit to the number of times a petition for an expungement can be made, courts consider eligibility by taking into account all past crimes.

Pending Cases. In addition to past criminal history, courts also consider any pending criminal charges. Most courts will find an individual ineligible for an expungement if he/she has pending criminal charges. (2C:52-14).

Waiting Period. One other significant requirement is completing the waiting period. The waiting period begins from the date the judge enforces the sentence, the date you pay all of the fines, or the date you complete parole, probation, or jail sentence, whichever comes last. The court may relax the waiting period for payment of all fines if it finds that the payments were being made in full and on schedule. The waiting time varies depending on the nature of the conviction; the general times are as follows:

  • Felony crime                                10 or 5 years
  • Misdemeanor                               5 or 3 years
  • Juvenile Adjudication                5 years, or adult equivalent
  • Municipal Ordinance                 2 years
  • Young Drug Offender                 1 year
  • Diversion program                      6 months
  • Dismissal                                       No waiting period

If you are ineligible for a New Jersey expungement, it’s probably not a good idea to apply because your petition will get rejected. However, if you’re ineligible due to the waiting time requirement, you could prepare your paperwork now and apply later when you become eligible. This will save you time and ensure you get your record cleared ASAP. To quickly find out if you’re eligible, use our free NJ expungement eligibility test.

Denial based on objection

27193168442_66c2a19ffc_bEven after meeting all of the eligibility requirements, your expungement petition might be denied if someone, most likely the prosecutor, objects to the petition. A number of reasons may influence this decision including:

  • the expungement not being in the public’s best interest,
  • the crime attempting to be expunged was too dangerous, or
  • behavior after the crime does not show rehabilitation.

Usually, if an individual is arrested or convicted of an additional crime (after the crime that is being petitioned to be expunged), a court will likely consider this to be an indication that no rehabilitation took place, and thus object to grant an expungement.

In addition, there are a few crimes in New Jersey that might be denied, even if they meet the criteria of eligibility. Typically, these crimes include felonies or drug dealing charges.

How to Get your Record Expunged

If you are eligible for an expungement, getting your record expunged is simple. The process consists of filling out the appropriate forms and filing them with the court.

Notice of an expungement hearing is given to people including the Superintendent of State Police, the Attorney General, the county prosecutor of the county where the hearing is located,  and chief police or executive head of the police department where the crime took place. (N.J.S. 2C:52-10). A court appearance is usually not required for an expungement hearing, but may be needed if someone objects to the expungement or in a case of expunging an arrest and/or conviction for possessing a controlled substance with intent to distribute.  It usually takes up to three or more months to expunge a criminal record. Learn more about the New Jersey expungement process.