Domestic Violence Expungement

By August 30, 2016Expungement
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Domestic violence is not a crime in and of itself in New Jersey. There are no domestic violence laws or statutes that make up charges you can be convicted of. Instead, domestic violence is a term used to categorize certain crimes carried out against a person protected by the Domestic Violence Act. The definition varies between states.

What is Domestic Violence?

To determine whether a crime is domestic violence, we must look at the type of crime and who it was carried out against.

In New Jersey, the following offenses can be considered domestic violence: homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual contact, lewdness, criminal mischief, burglary, criminal trespass, harassment, and stalking. These offenses must be carried out against a person protected by the New Jersey Prevention of Domestic Violence Act of 1990. Persons protected include: spouse, former spouse, or former/present household members.

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For example, an assault against a former spouse is domestic violence, whereas that same assault against a stranger is not. However, distributing drugs to a former spouse is not a crime of domestic violence.

DV Expungement Eligibility

Conviction. To expunge a domestic violence conviction, you are really just expunging the crime you were convicted of. Out of the fourteen crimes that could be considered domestic violence in New Jersey,

  • two are never eligible for expungement: homicide and kidnapping and
  • four are sometimes eligible: criminal restraint (if the victim is a minor and the offender is not the parent), false imprisonment (if the victim is minor and the offender is not the parent), sexual assault (if aggravated), and criminal sexual contact (if victim is a minor).

The remaining eight crimes are almost always eligible:

  • assault
  • terroristic threats
  • lewdness
  • criminal mischief
  • criminal trespass
  • harassment
  • stalking
  • burglary

Dismissed. Domestic violence charges are dismissed for a number of reasons but most often the spouse decides to drop all charges. In New Jersey if a spouse of significant other calls the police, a report must be filed even if that person decides not to press charges later. Although the case gets dismissed in court, a record of the events still exist and need to be expunged.

Other times, the court will dismiss a domestic violence charge in exchange for participation in an anger management or other similar program. The most common dismissed charge is simple assault. A dismissed charge is always immediately eligible for expungement.

Restraining Orders

A retaining order is a legal tool used to limit a person’s freedom in order to protect another person from domestic violence. It is extremely important to note that a restraining order is a civil order, not a criminal offense. Therefore, it does not show up on a person’s criminal record.  An expungement can only clear a person’s criminal record. Since a restraining order is not criminal, it is not eligible for an expungement.

Gun Rights

There is a federal gun ban for people that have been convicted of domestic violence as defined by federal law. The federal law is narrower than New Jersey’s, which means a conviction that is considered domestic violence under NJ law may not be so under federal law. Furthermore, gun rights may be restored with an expungement.