Drug and Marijuana charges are expunged on a regular basis and are one the most popular type of cases petitioned in the NJ courts. In 2011, New Jersey reported 47,168 drug-related arrests, which is by far the largest category of criminal conduct. Possession accounted for approximately 78% of those arrests, and the remaining 22% were for drug distribution. (2011 Uniform Crime Report).
How to Get My Record Expunged
Getting a marijuana or drug charge expunged from your record is relatively simple given the non-violent nature of these crimes. Simply file a petition with the superior court of the county you were charged in. Expungement is almost always granted in these cases as long as the petitioner is eligible under statute and the forms are filled out correctly. A lawyer can prepare the petition for you to ensure accuracy and get your record expunged in a timely manner.
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Possession
Marijuana. A majority of those arrested for drugs are charged with marijuana possession under 50 grams (N.J.S. 2C:35-10a(4)). This is a disorderly persons offense (misdemeanor) in New Jersey. Oftentimes, if it is your first arrest, the court will offer a diversionary program such as conditional discharge. Completion of the program, which usually consists of probation, will result in an automatic dismissal. However, there will still be an arrest record of the incident, which is available in background checks. You must wait 6 months after the completion of the diversionary program to file for an expungement. If you were not granted a diversionary program and were convicted of a misdemeanor, the standard waiting period is 5 years after completion of your sentence before you can apply for an expungement. However, in certain instances you may be eligible to apply after 3 years under the “public interest” exception.
Other drugs. Possession of any other controlled substances, such as cocaine, heroin, MDMA, etc., is usually an indictable offense (felony) and may be charged as a 3rd or 4th degree crime (depending on weight). If it is your first arrest, the court may offer you a diversionary program called pretrial intervention (PTI). Successful completion of PTI results in a dismissal of the original charges. However, there is still a record of your arrest related to the incident, which is available in background searches. Similar to conditional discharge, you must wait 6 months from the completion of PTI to expunge the arrest and thereby completely clear your record. If you were not granted a diversionary program and were convicted, you are ineligible to expunge your record until 10 years has passed since the completion of your sentence. However, if you qualify under the “public interest” exception, the waiting period is only 5 years. Unfortunately at the moment, you cannot expunge a drug possession charge that was of the 1st or 2nd degree.
Sale or distribution, or possession with intent to sell
The sale or intent to distribute drugs is usually an indictable offense (felony). However, there are special rules governing the expungement of drug distribution offenses (N.J.S. 2C:52-2). In New Jersey, you can expunge a drug distribution charge if it was for:
- marijuana and was 25 grams or less or
- hashish and was 5 grams or less
Additionally, another law in New Jersey allows you to expunge drug distribution charges that were of the 3rd or 4th degree (N.J.S. 2C:52-2(c)(3)). However, for third or fourth degree offenses, the court will use its discretion and take into account the public interest, nature of the offense, and person’s conduct since conviction. Therefore, it might be a good idea to speak with a lawyer in that situation. Unfortunately as the law stands, you cannot expunge a drug distribution charge of the 1st or 2nd degree.
Youth drug offense (21 or under)
Given the large number of drug convictions of individuals under the age of 22, New Jersey created a special law that allows youth drug offenders to expunge their record after 1 year of sentence completion (N.J.S. 2C:52-5).
This law only applies if the following conditions are met:
- You were convicted of possession or use of a controlled dangerous substance under Chapter 35 or Chapter 36 of New Jersey law (the court documents, such as a court disposition, will say what law you have been convicted of)
- You were NOT convicted of sale or distribution of a controlled dangerous substance or possession with the intent to sell any controlled dangerous substance UNLESS your conviction was for the sale or distribution of, or possession with intent to sell:
- 25 grams or less of marijuana (approximately 0.88 oz), or
- 5 grams or less of hashish (approximately 0.18 oz)
- The offense happened before you turned 22
- More than one year has passed since the most recent of the following dates:
- the date you were convicted, or
- the date you got out of jail, or
- the date your parole or probation ended
- You have not violated your probation or parole
- This is the only crime you have ever been convicted of
You have never had another charge dismissed after participating in a diversion program or supervisory treatment program
Distribution of any other substance or greater amounts of marijuana or hashish will result in a charge that is not eligible under this rule. For example if a person was convicted of distributing a small amount of cocaine, a third degree offense, he cannot expunge his record 1 year after sentence completion. Instead, he will have to wait 5 or 10 years because it is an indictable offense (felony). However, even then, the court has discretion on expunging the record because it is a distribution crime. Here are additional examples:
Example 1
Sally, on the eve of her 22nd birthday, sells half an ounce of marijuana to an undercover cop. She is arrested and convicted of sale of a controlled substance, and is sentenced to 6 months probation. This is the only time she has ever been charged with a crime, and she successfully completes her probation. After at least a year and a day have passed from the time she completes her probation, if she asks the Superior Court in the county where she was convicted to expunge her record, it will do so. Now, whenever someone accesses her criminal record, they will not see anything related to the incident.
Example 2
James, age 19, allows a police officer to search his car during a routine traffic stop. The officer finds a dime bag of marijuana in the glove compartment and arrests James, who is convicted of possession of a controlled substance. When James was 17, he got caught shoplifting, but the judge allowed him to complete a pretrial intervention program, after which the charge was dropped. James will not be eligible to have his drug conviction expunged under THIS law because of his involvement in the diversion program for the shoplifting charges. However, James may be able to expunge his offense as a misdemeanor expungement, which requires a waiting period of 5 years.