Expungement

Do you have a criminal record that has prevented you from getting jobs or loans, or caused other problems in your life? Criminal records can come from such minor offenses as possession of less than 50 grams of marijuana or taking items worth less than $200 from a store, or even the violation of a municipal ordinance. They are public records, easily accessed through the internet. Most people with criminal records, after the passage of time and with no further criminal convictions, can have that record eliminated from public records through a process called expungement.

After a certain amount of time following your conviction, you can apply to "extract and isolate all records on file…concerning a person’s detection, apprehension, arrest, detention, trial, or disposition of an offense within the criminal justice system." Expunged records generally cannot be viewed by future employers or other agencies (see exceptions under "How can expunged records be used?" below). The events expunged, including your arrest and conviction, legally become events that never happened. Expungement allows you to truthfully answer "no" to questions about arrests or convictions that have been expunged on job, school and other applications.

Certain crimes cannot be expunged. They include criminal homicide (except by auto or vessel when the operation was reckless), kidnapping, human trafficking, aggravated sexual assault, aggravated criminal sexual contact, perjury, false swearing, terrorism, producing or possessing chemical weapons or biological agents or radiological devices, and crimes relating to child endangerment, child pornography and false imprisonment or criminal restraint of a minor. The complete list of crimes that cannot be expunged is reproduced at the end of this page. Sale, distribution or possession with the intent to distribute controlled dangerous substances (drugs) cannot be expunged unless the amounts are relatively small (see description at the end of this article). If you were a public office holder or employee and the crime related to your office or public employment, those records cannot be expunged.

Multiple convictions can prevent you from getting your records expunged.

If the record you seek to expunge is of a crime rather than a lower level offense (disorderly persons offense, petty disorderly persons offense, or violation of a municipal ordinance), your records cannot be expunged if you have been convicted of another crime or if you have been adjudged guilty of more than two disorderly persons or petty disorderly persons offenses. If you have been subsequently adjudged guilty of two disorderly persons offenses, the court can deny your petition for expungement, but does not have to do so.

If the record you want to expunge is of a disorderly persons offense or petty disorderly persons offense, it cannot be expunged if you have been convicted of a crime, or three additional disorderly persons offenses, or petty disorderly persons offenses.

If you want to expunge records of violation of a municipal ordinance, you will not be able to do so if you have been convicted of either a crime or more than two disorderly persons offenses or petty disorderly persons offenses.

There are other reasons that the court can deny your request for expungement, that get fairly technical and appear in the statute NJSA 2C:52-14. They include dismissed charges in a plea bargain (when you plead guilty to other charges). Expungement of the dismissed charges must wait until you can petition for expungement of the charge(s) to which you pled guilty. Other grounds include instances when the government objects and the court finds the need for preservation of your records outweigh the benefits of expungement. When you have already had another criminal conviction expunged or charges have been dismissed after a supervisory treatment or similar program, expungement will be denied, with certain exceptions. While the arrest in question is the subject of a civil suit against the government, the record will not be expunged.

If you were arrested but not convicted, there is no waiting period. The arrest and related records can be expunged at any time. There is an exception to this rule. If you were not convicted because you were determined to be insane or to lack mental capacity, the records will not be expunged.

Other expungements all have waiting periods. The waiting periods all begin from the latest of the conviction or the completion of your sentence. There are exceptions for such matters as the payment of fines on a payment plan, as long as all other aspects of your sentence have been completed.

For a crime, the waiting period is 10 years, though it can be granted after five years, if there have been no subsequent convictions and the court exercises its discretion and determines that the expungement is in the public interest at that time.

For a disorderly persons offense or petty disorderly persons offense, the waiting period is 5 years.

For a municipal ordinance violation, the waiting period is 2 years.

The primary document for obtaining expungement of your records is called a petition for expungement, which must be verified - that is, you must swear to its contents. It includes all of the particulars of the incident for which you want the records expunged - your date of birth, date of arrest, offenses for which you were arrested and/or convicted, the original indictment, summons or complaint number(s), your date of conviction or other disposition of the matter, and the court’s disposition of the matter and the punishment imposed. If you do not have that information, you can contact the State Police Criminal Information Unit at 1-609-882-2000 extension 2918, and they will instruct you how to get it.

Other documents to be included may consist of a statement with the affidavit confirming there are no criminal charges, disorderly persons or petty disorderly persons offenses currently pending against you. If the matter to be expunged is a criminal conviction, you must also include a statement that you have not been granted an expungement of a criminal conviction previously. Where there has been a dismissal of a criminal charge because of completion of a supervisory treatment or similar program, a statement of the nature of the original charge, the court of disposition, and the date of disposition must be included. In addition to the Petition and statements discussed, you should draft a proposed order for hearing and proposed order expunging your records.

All of those (an original and two copies), plus a $52.50 fee and a stamped self-addressed envelope are filed with the superior court in the county where you were arrested. The court will return one copy, stamped "filed," to you. You must then serve copies of the stamped documents on the following parties: the Attorney General of New Jersey; the Superintendent of State Police, Expungement Unit; the County Prosecutor; the Clerk of the municipal court if a municipal court heard the matter; the Chief of Police or other head of the police department where the offense was committed or the arrest was made; the chief law enforcement officer of any other law enforcement agency of the state that participated in the arrest; and the Warden or superintendent of any institution in which you were incarcerated. Those parties then have the opportunity to object to your petition.

You must then appear in court at the appointed time for the hearing.

As you can tell from the description above, the process is complicated and time consuming. A misunderstanding of the law, a failure to serve the appropriate parties or convince the judge of the merits of your case can result in rejection of your application for expungement.

The LS&P Lawyers defense team has over 30 years experience, combined. Call our New Jersey criminal defense lawyers for a consultation at (908) 709-0500. We can guide you through the process and expertly represent you in court so that your application to expunge your records has the best chance of success.

Expunged records are not physically destroyed and can be used for certain, very limited, purposes. The uses are generally within the criminal justice system, if you are arrested in the future. For example, it can be used to determine eligibility after a future arrest for the PTI (pretrial intervention) program, release on bail, and parole. Reports required under the Controlled Dangerous Substances Registry Act (which relates to the licensing of doctors, pharmacists, research scientists, drug manufacturers and others to possess drugs that would otherwise be illegal) are not expunged as a result of an order of expungement. They can also be used by law enforcement agencies, including police, corrections, courts, and prosecutors offices, when considering job applicants.

Records of conviction for the following crimes specified in the New Jersey Code of Criminal Justice shall not be subject to expungement: N.J.S.2C:11-1 et seq. (Criminal Homicide), except death by auto as specified in N.J.S.2C:11-5; N.J.S. 2C:13-1 (Kidnapping); section 1 of P.L.1993, c.291 (C.2C:13-6) (Luring or Enticing); section 1 of P.L.2005, c.77 (C.2C:13-8) (Human Trafficking); N.J.S.2C:14-2 (Sexual Assault or Aggravated Sexual Assault); N.J.S.2C:14-3a (Aggravated Criminal Sexual Contact); if the victim is a minor, N.J.S.2C:14-3b (Criminal Sexual Contact); if the victim is a minor and the offender is not the parent of the victim, N.J.S.2C:13-2 (Criminal Restraint) or N.J.S.2C:13-3 (False Imprisonment); N.J.S.2C:15-1 (Robbery); N.J.S.2C:17-1 (Arson and Related Offenses); N.J.S.2C:24-4a. (Endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child); N.J.S.2C:24-4b(4) (Endangering the welfare of a child); N.J.S.2C:24-4b. (3) (Causing or permitting a child to engage in a prohibited sexual act); N.J.S.2C:24-4b.(5)(a) (Distributing, possessing with intent to distribute or using a file-sharing program to store items depicting the sexual exploitation or abuse of a child); N.J.S.2C:24-4b.(5)(b) (Possessing items depicting the sexual exploitation or abuse of a child); N.J.S.2C:28-1 (Perjury); N.J.S.2C:28-2 (False Swearing); N.J.S.2C:34-1b.(4) (Knowingly promoting the prostitution of the actor's child); section 2 of P.L.2002, c.26 (C.2C:38-2) (Terrorism); subsection a. of section 3 of P.L.2002, c.26 (C.2C:38-3) (Producing or Possessing Chemical Weapons, Biological Agents or Nuclear or Radiological Devices); and conspiracies or attempts to commit such crimes.

Records of conviction for any crime committed by a person holding any public office, position or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof and any conspiracy or attempt to commit such a crime shall not be subject to expungement if the crime involved or touched such office, position or employment.

1. In the case of conviction for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell, expungement shall be denied except where the crimes involve:
   1. Marijuana, where the total quantity sold, distributed or possessed with intent to sell was 25 grams or less;
   2. Hashish, where the total quantity sold, distributed or possessed with intent to sell was five grams or less; or
   3. Any controlled dangerous substance provided that the conviction is of the third or fourth degree, where the court finds that expungement is consistent with the public interest, giving due consideration to the nature of the offense and the petitioner's character and conduct since conviction.
2. In the case of a State licensed physician or podiatrist convicted of an offense involving drugs or alcohol or pursuant to section 14 or 15 of P.L.1989, c.300 (C.2C:21-20 or 2C:21-4.1), the court shall notify the State Board of Medical Examiners upon receipt of a petition for expungement of the conviction and records and information pertaining thereto.