Expungement Basics and Benefits

By August 27, 2016Expungement
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According to New Jersey law, an expungement is the removal of all records on file from any court, detention/correctional facility, law enforcement or criminal justice agency or juvenile justice agency.  The records that are removed concern an individual’s arrest, detention, trial or ruling within the criminal or juvenile justice system.  If records are expunged, those records and any related proceedings are considered to have never happened.

Do I even Need an Expungement?

Whether convicted or not, or whether taken into custody or not, there is a record of every arrest in New Jersey. That is, if you’ve had any contact with law enforcement, even if the case was ultimately dismissed, you still have a record out there. That record  is accessible to potential employers, landlords, insurance companies, and even creditors. Having a record reduces your opportunity to access employment, housing, and credit.

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With a New Jersey expungement, an individual is able to remove such records from the public. The criminal records that can be expunged include: complaints, warrants, arrests, commitments, processing records, fingerprints, photographs, index cards, “rap sheets” and judicial docket records (N.J.S. 2C:52-1(b)).

Benefits of Getting an Expungement

There are many benefits of expunging your New Jersey criminal record. Here are some common reasons why you should do it now rather than later.

Expungement and Jobs

pexels-photo-70292About 73% conduct criminal background checks on all job applicants. Another 19% perform checks on select candidates (Society for Human Resource Management). That means at least 92% of all employers look into an applicant’s criminal history. Therefore, in today’s economy, it’s almost a guarantee that an employer will look into your background before making a hiring decision.

Employers can search for your criminal history by accessing a number of available databases. Your record will typically list every arrest, even if you were later found to be innocent. Since your record is never automatically cleared in New Jersey, something that happened 20 years ago will be available to the public and will follow you until you get an expungement.

Looking for a job. Most people want to clean their record for reasons related to employment because over 92% of employers perform background checks on applicants before making a hiring decision.  Since federal and most state laws do not protect people from discrimination based on criminal history, employers can legally choose to not hire a person who has a criminal record. In fact, most employers do this. Employers will rarely admit that they prefer hiring candidates without a criminal record. However, the truth is that a record can prevent you from getting the job the deserve and limit your opportunities.

Many job applications will ask if you have ever been convicted of a criminal offense. Lying on an application is unwise because, as stated above, most employers will conduct a background check anyway. Therefore, it’s important to be truthful.

With an expungement, you are able to legally say that you have never been arrested. In fact, most applications will specifically ask you not to list expunged convictions. If an employer asks you to reveal an expunged record, that employer could face fines and punishment.

Furthermore, an expungement will prevent employers from seeing your record in a background check. In the employer’s eyes, it’s as if you were never arrested. Having an expungement truly gives you a fresh start.

Already have a job. Even if you are currently employed, it may be beneficial to get an expungement in case you need to change jobs or are laid off.  That way you can seek new employment without worrying about your past. Job security has weakened since the economic downturn, and now more than ever, it’s important to be prepared.

Self-employed. If you are self-employed, you do not have to worry about employers searching for your criminal history. However, you may be concerned about business partners, associates, and clients digging up your past. People like to know who they’re doing business with and one negative review of your company can reduce revenue. Furthermore, your record may be taken into consideration while negotiating government contracts.

EXCEPTIONS

There are some instances where your employer will be able to see, or you are required to disclose, your expunged records. If you are applying for a job in law enforcement, corrections, or the courts, you may be required to disclose expunged records. Furthermore, the military may have access to all your records. Certain licensing applications also require disclosure, such as some state bar associations.

Other Reasons

3739497411_6bd2a08c99_bRenting an apartment. Most housing laws do not protect people against discrimination based on prior criminal records.  Therefore, landlords can legally refuse to rent properties to “convicts” and “felons.” You may be limited to housing in areas with high crime rates or poor quality of life. Getting a New Jersey expungement now will make it impossible for a landlord to see your record.

Gun Rights. Certain convictions may take away your gun rights, which means that if you try to purchase a firearm, you will be denied by federal law. An expungement can restore those rights in certain instances.

New charges. If you are charged with a new offense, it will prevent you from filing for an expungement until the charge is resolved. The outcome of that charge may make you ineligible for applying altogether. Therefore, filing now can help you expunge your current records and minimize the impact of any future charges. For example, if you have been arrested once and you file for an expungement now, you can clear that record. If you are arrested again later, a background search will only show 1 arrest. On the other hand, if you choose to wait, you may be ineligible to expunge either arrest and a background search will show 2 arrests.

Laws might change. In New Jersey, expungements are governed by laws that are currently in effect, not laws at the time of the arrest/conviction. Some records that may be eligible now could become ineligible if the law changes. Therefore, you should take advantage of the law now because you might not have another chance in the future.

Immigration. A criminal conviction can negatively impact your pathway to citizenship or residency. In some case it is advisable to get an expungement before filing immigration requests.

Traveling. Some countries, such as Canada, will deny access to people who have certain criminal convictions on their record. By getting an expungement, (some) border patrol agencies will not longer have access to the record and will therefore grant you entry.

Personal reasons. A criminal record will negatively impact your opportunity for adopting a child or coaching a little league team. Additionally, many people place value on their reputation and standing in the community. After an expungement, many people feel like a weight has been lifted and that it’s a new beginning.

Exceptions

There are certain situations, however, when an expungement is not effective, and the records can be found or used.  For example, if there is a sentencing for a new offense or if a person is seeking a conditional discharge after there was a previous conditional discharge the records may be consulted.  However, expungements are effective in most circumstances.

Are Expunged Records Destroyed?

However, the records are not destroyed. The files are removed from public record and isolated (moved to a different location and saved separately).  Consequently, if a search is conducted, no records of arrests or convictions will be found. (N.J.S. 2C:52-1). Destroyed records would be literally put through a paper shredder.  There would be no record of them, anywhere.  This is not the case in an expungement. The only time any record can be completely destroyed in New Jersey is when specifically mandated by law. Despite this, if someone’s record is expunged, he or she can, in most cases, honestly deny the existence of the expunged records if asked.

Expungement vs. Sealing of Records

There is a difference between records that are expunged and records that are sealed.  Legally, any record that has been expunged is considered to not have happened, and is also not available to the public.  Alternatively, records that are sealed are not available to the public but are legally considered to exist and have happened.

Who Can See My Expunged Record?

Gastblogger-Verslaving-BlogThe public, including potential employers, cannot see an expunged record.  However, certain legal and judicial offices may be able to access them.  These offices include, but are not limited to: departments of corrections; violent crimes compensations boards; parole boards; judges, prosecutors, probation departments, and the Attorney General in reference to a bail hearing or sentencing; a judge in regards to that judge’s decision to allow the person to join a supervisory treatment program; and finally the Superior Court may permit the inspection or release of expunged or sealed files in certain circumstances. (See: N.J.S. 2C:52-18-2C:52-23).

Am I Required to Disclose Expunged Records?

In most circumstances, you are not required to disclose information on expunged records. The records are isolated from the public and treated as if they do not exist. (N.J.S. 2C:52-27). This means that once you get an expungement, you can legally deny that the criminal matter ever happened. You can even legally deny the matter while under oath and to most employers on job applications.

In addition, it is illegal for others to disclose information about your records.  Any person who discloses information on expunged records knowing that they have been expunged is considered to have committed a disorderly persons offense (misdemeanor) and may be subject to a fine of up to $200. (N.J.S. 2C:52-30).

When Do I Have to Disclose My Expunged Records?

When applying for a job in the judicial branch, a law enforcement agency (police), or a correctional facility, you must reveal any and all expunged records.  In addition, any expungement regarding charges that were dismissed due to acceptance into a supervisory treatment program must also be revealed to any judge who must determine if you will be accepted into another such program for later charges.

Basic Expungement Eligibility

In New Jersey, there are only certain types of offenses that can be expunged.  The process by which one qualifies for an expungement is quite complicated.  The fastest way to find out if you’re eligible is to take our free expungement eligibility test.

All convictions require a waiting time before they can be expunged.  The waiting time differs depending on the nature of the conviction.

  • For felonies, the waiting time is ten years.  However, an application can be made after five years if granting the expungement is in the public interest.
  • If one is convicted of the misdemeanor of either disorderly persons offense or petty disorderly persons offense, the waiting time is five years or three years.
  • The waiting period for juvenile adjudication is five years or a period for an equivalent offense if committed by an adult, whichever is less.
  • If an individual is convicted of violating a municipal ordinance, the waiting time is two years.
  • Young drug offenders (twenty one years of age or younger) must wait one year.
  • If one receives a dismissal following the completion of diversion, the waiting time is six months.

The above waiting period begins at the time of the sentencing, payment of fines, successful parole/probation, or completion of a jail/prison sentence, whichever is later. It does not begin on the date of the offense.

Further, if a case has been dismissed and there is no conviction, there is no waiting time.  Also, if an individual has been arrested but not convicted (found not guilty), or the charges have been dropped, expungement may occur without a waiting time. For example, if an individual is arrested or held to answer for a crime, even if it is as extreme as arson or murder, that person can have his record expunged if he is found not guilty or the case is dismissed.

What Can’t be Expunged

If an individual is deemed to be not guilty of a crime by reason of insanity or lack of mental capacity, those records cannot be expunged.  Additionally, final restraining orders arising from domestic violence situations cannot be expunged.  Certain offenses cannot be expunged, including motor vehicle offenses (driving while intoxicated), serious violent crimes ( murder, robbery, kidnapping, etc.), and sexual offenses against children (lewd conduct with a minor). Lastly, if an individual has been convicted of more than three msidemeanors or two felonies, that individual cannot get an expungement.