Expungement Law In 2016

Anthony J. Van Zwaren, Esq. P.A. Profile Image

Anthony J. Van Zwaren, Esq. P.A.

Clifton, NJ

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Expungements (or sealing) of criminal records (convictions and arrests) are found in the New Jersey Statutes under Title 2C:52-1 through 52-32 of the Criminal Code. Up until the changes in April 2016, a petitioner had to wait a period of ten years to apply to expunge a criminal conviction (indictable offense).

This means that you must have completed payment of all fines and penalties, probation or parole, community service or whatever else you were ordered to do by the court. Convictions in municipal court, which deal with less serious disorderly persons offenses, required five years from completion before you could apply for an expungement. It was necessary to realize that the timeline to commence expungement began with the time your case was finally disposed of. This meant, expungement would not necessarily be from the date of conviction but from the final date of: parole; community service; payment of fines; or other conditions like participation in a drug program, whichever came last.

However, these conditions have been modified under the new law. Now the time period is five years before you can apply for an expungement of an indictable offense from Superior Court. For a disorderly persons offense, you only need to wait for three years. (These are for offenses that were tried in a municipal court). For those convicted of a municipal ordinance, a petition for expungement can be made within two years of the date of the final disposition of the case.

Additionally, you are not automatically barred from seeking an expungement for subsequent convictions for two disorderly persons or petty disorderly persons offenses. Of course a court may, in its discretion, decide against granting the petition.

Possessions of small amounts of marijuana (25 gms or less); hashish (5 gms or less) or any other conviction for a controlled substance of the third or fourth degree may be eligible for expungement, but for those person under the age of 21 may apply for expungement within one year of the completion of a sentence, probation or parole, or from completion of a program.

As before, there are some crimes that are ineligible for expungement. These include convictions for criminal homicide (except death by automobile); terrorism, child pornography or child sexual assault, kidnapping and other major crimes.

For those who have been arrested but either never charged, never convicted or had their case terminated after completing a conditional discharge or conditional dismissal can immediately apply for expungement.

Only three petty disorderly or disorderly persons' charges can be dismissed, and you can only use an expungement one time. While a simple assault may be expunged because it is a minor criminal offense if there is a parallel domestic violence proceeding that leads to a final restraining order, that is not subject to expungement since it is considered a civil proceeding and not a criminal proceeding. The same condition applies to a charge of child endangerment (criminal and thus potentially expungeable) and a finding of neglect or abuse in a child welfare proceeding (which is civil and places the person on the Child Abuse Registry). A final restraining order is permanent unless the person who first requested the order seeks to get it dismissed.

One important change to bear in mind if one is in municipal court is that, if a charge is brought with no conviction or if the charge is dismissed after completion of the conditions of a conditional dismissal, the municipal court will be required to notify defendants that the charges can be expunged without opposition AND without filing a fee for the petition for expungement. Even those people who have had arrest records from before the law takes effect will be permitted to file petitions for expungement without the usual $75.00 fee.

If you completed drug court, you may have your entire record expunged after completion of a special probation. This is true so long as you have not been convicted of another offense that is non-expungeable as defined under NJSA 2C:52-2(b).

When Expungements of Convictions Have to Be Revealed:

A person who has had their record expunged may still be obligated to reveal the expungement. NJSA 2C:52-27, requires that a person who seeks employment in the judicial branch or in law enforcement or corrections reveal any past convictions and arrests as well, whether expunged or not. Arrests and convictions that may have been expunged have to be revealed to the court in the event of a possible sentencing or consideration of entrance into a diversionary program as well. However, the courts have also upheld that an expungement can be submitted as evidence of rehabilitation can be used in favor of the applicant when applying for a position in law enforcement or corrections. In re J.B., 386 N.J. Super. 512 (App. Div. 2006).

While any issues concerning immigration matters are beyond the scope of this article, it is important to recognize that having one's record being expunged or sealed does not prevent this from being an impediment for purposes like federal employment or immigration or in seeking citizenship. While the charge or conviction may ultimately not be an absolute bar with immigration, it must be revealed, if for instance one is applying for citizenship. It will also show up if one is not a citizen and is seeking reentry into the United States.

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