Questions and answers:

1.   What is an expungement?

When a person is arrested, that person gets a criminal record. At a minimum, there is a record of an arrest. If the person is later convicted, then the person has a record of both an arrest and a conviction. These records follow the person for the rest of his life. Potential employers can access these records. Insurance companies, landlords, adoption agencies, and prospective creditors can too. To expunge a criminal record means to go through a court process. Upon successful completion of that process, you get a court order signed by a judge. The court order states that the offense "...shall be deemed not to have occurred." Persons doing a background check through New Jersey State Police or through the FBI will receive a response that there is "no record." Additionally, after you expunge your criminal record, you are legally entitled to state that the arrest or conviction never happened.

 

2. How does New Jersey law define expungement?

According to New Jersey law, expungement "shall mean the extraction and isolation of all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person's detention, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system."

 

3.    Are expunged criminal records destroyed?

No. They are not destroyed. Rather, they are segregated. That is, they are taken to special locations for expunged records. When regular record searches are made, records kept in these special locations are not accessed. Thus the results of this ordinary search will be a return of “No Record.”


The procedure that New Jersey courts follow once an expungement has been granted is detailed in a document called an “Administrative Directive.” The particular document that specifies how the courts in New Jersey process expungement orders is Administrative Directive 16-08.

 

4. In what situations are expungement useful?

There are plenty of situations where Expungement are effective. Employment applications to be a teacher need not recite expunged matters. The same is true for employment applications to be a real estate broker, a stock broker, a banker, a hospital worker, a computer programmer, a taxi driver, a barber, or anything else, so long as it is not in law enforcement, or the court system. Applications to obtain professional licenses (other than to practice law) similarly need not recite court proceedings that have been expunged. After the court expunges the record, it no longer exists for purposes of an application to adopt a child. If you apply for admission to a school or a professional organization, the expungement is completely effective: You need not recite matters that have been expunged.

 

5.    Does this mean that I can never get a job in law enforcement, or in the court system, or that I can never become a lawyer?

No. It just means that if you do pursue any of those directions, you would be required to specify prior arrests on the application when asked, even though they have been expunged. You can state that they have been expunged, but you still need to recite it. The government agency will then consider your entire application, including the expunged information, and approve or reject your application on that basis. Unless a statute specifies it (and almost none do), the recitation is not automatically disqualifying.

 

6. How long does the expungement process usually take?

N.J.S.A. 2C:52-9 states that the Court must hear your matter within 35 to 60 days of the date it is filed. Generally, however, the process usually takes a few months from the time you engage our services, but there is no set answer to this question because scheduling depends largely on the Court and its caseload. Various things such as incomplete records that need to be investigated, court scheduling, and/or opposition to your petition from a law enforcement agency may cause the process to be delayed. Our Firm will work to ensure that your expungement is handled expeditiously.


7. Can I actually say I have not been arrested/convicted once I have an expungement completed?

Yes, you can truthfully answer that you have never been arrested/convicted once your expungement is complete. The exact wording from the Order that the Judge signs to officially grant your expungement states: "that the arrests, charges, and convictions which are the subject of this Order shall be deemed not to have occurred and the Petitioner may answer accordingly any questions relating to its occurrence."

* - Nevertheless, New Jersey law states that the expunged records may still be used in certain contexts. For example, the records can be used by the Dept. of Corrections for classifying a prisoner, can be used by a Judge solely for purposes of setting bail, etc. Additionally, N.J.S.A. 2C-52-27(c) states that "Information divulged on expunged records shall be revealed by a petitioner seeking employment within the judicial branch or with a law enforcement or corrections agency and such information shall continue to provide a disability as otherwise provided by law."

 

8.   If my criminal record is expunged and I am later placed under oath and asked about my criminal history, am I committing perjury if I deny that expunged records ever happened?

You would be committing perjury (or “false swearing”) ONLY if you are asked in the context of one of the exceptions to the expungement statute. For example, if you deny it in the context of a sworn application for employment in law enforcement, you would be committing an offense. In all contexts other than the exceptions to the expungement statute, you can deny that the matter ever happened. You can deny it under oath. You would not be committing perjury or false swearing.

 

9. What are the waiting limits involved?


(These times do not necessarily begin to run as of the date of conviction, but rather as of the last date in the case, i.e., probation end date, date fines paid, release from incarceration, release from Parole, etc.)

For Indictable Convictions - (Superior Court matters) - Generally 10 years, but only 5 years if the requirements of the 2010 Changes (see next page) to the Expungement law are met.


For Disorderly Persons/Disordelry Persons Convictions - 5 years.


For Municipal Ordinance Convictions - 2 years.


For PTI/Conditional Discharge - 6 months from completion/dismissal.


For Dismissals - no waiting period. Eligible when dismissed.


10. Can all types of arrests/convictions be expunged?

NO, convictions relating to the following generally may NOT be expunged:

(It is not what you were arrested for that is the determining factor but rather what you were found guilty of. If you plead guilty to a reduced charge ultimately, completed PTI, or had the charges dismissed, you will still be eligible to expunge the matter provided you meet the other expungement requirements).

  • Homicide;
  • Kidnapping;
  • Luring or Enticing;
  • Aggravated Sexual Assault;
  • Aggravated Criminal Sexual Contact;
  • if the victim is a minor - Criminal Sexual Contact;
  • if the victim is a minor and the offender is not the parent of the victim - Criminal Restraint;
  • False Imprisonment;
  • Robbery;
  • Arson and Related Offenses;
  • Endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child;
  • Endangering the welfare of a child;
  • Perjury;
  • False Swearing;
  • Distribution or Possession With Intent to Distribute any CDS, except: 25 grams or less of marijuana, or,5 grams or less of hashish.

    [Under the 2010 Changes to the expungement law, however, Distribution or Possession With Intent to Distribute ANY CDS may be eligible for expungement if it is a 3rd or 4th degree offense and 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.]
  • HumanTrafficking;
  • Causing or Permitting a Child to Engage In a Prohibited Sexual Act;
  • Selling or Manufacturing Child Pornography;
  • Knowingly Promoting the Prostitution of the Actor's Child;
  • Terrorism;
  • Producing or Possessing Chemical Weapons, Biological Agents, or Nuclear or Radiological Devices.
  • Conspiracies or Attempts to commit any of the above;
  • Crimes or conspiracies/attempts to commit such when committed by a person holding any public office, position or employment, IF the crime "involved or touched such office, position or employment."

11. Can you expunge an old DUI arrest/conviction?

The short answer is no, however, while permanent, these arrests/convictions are part of your driving record, not your criminal record. While any points will eventually come off (up to three points can be subtracted from your point total each year -- from NJ-DOT-Motor Vehicle Services) the arrests/convictions will remain a part of your permanent driver's record.

 

12.     Will the FBI continue to report my criminal history?

A. As part of its processing, New Jersey State police notifies the FBI when history of an arrest or a conviction has been expunged. Federal law then requires the FBI to honor that information. This requirement is spelled out in the Code of Federal Regulations. More particularly, 28 C.F.R. Section 16.34 specifies, “Upon the receipt of an official communication directly from the agency which contributed the original information, the FBI CJIS Division will make any changes necessary in accordance with the information supplied by that agency.” The bottom line is that the FBI will then report that no record exists.

 

 13. I am not a United States Citizen. Is there anything special I need to know about expungements?

Yes. Important federal exceptions to the effectiveness of expungement orders are the Department of Homeland Security, including Immigration and Customs Enforcement (ICE). Non-citizens applying for entry into the United States, or seeking naturalization, will likely need to divulge arrests and convictions, even after they have been expunged. Citizens seeking to cross international borders, for example travel to Canada, can remain subject to questioning concerning past arrests.


Additional considerations exist for non-citizens intending to apply for citizenship in the future. For example, persons seeking citizenship may need to furnish particular documents relating to past arrests. Expungement will make such documents difficult to obtain. Thus, non-citizens contemplating expungement may need to take extra steps before obtaining their final expungement order.

Expungement lawyers in New Jersey strongly advise that persons facing such issues consult with an attorney who specializes in immigration law.

 

14. Can federal arrests/convictions records be expunged?

(a)  Unfortunately, federal law only permits expungements in a few very limited number of circumstances such as expungement of records of young drug offenders, or those where the Court finds "exceptional circumstances." These circumstances are truly exceptional such as proof of government misconduct, statutes later found unconstitutional, etc. Unfortunately, federal courts have squarely rejected those whose circumstances consist of one dumb mistake and now can not find a job to support their family.

(b) It should be noted, however, that the expungement of arrest[s]/conviction[s] on your state criminal record will cause your federal criminal record to be expunged of those arrest[s]/conviction[s]. As above, however, records that are the result of federal arrests/convictions generally can not be expunged.


15. I completed PTI and was told my charges would be expunged after six ("6") months. Is this true?

No. There is no automatic expungement in New Jersey. Whether the charges were just dismissed, you participated in PTI, even if you were acquitted at trial, generally there is an arrest and/or other type of record that still exists. If you want to be sure the best way to check whether a record still exists is to check your record with the New Jersey State Police.


16. What is involved in the expungement process?

First, we obtain the necessary records by checking your New Jersey criminal record with the New Jersey State Police - State Bureau of Identification (SBI) and/or with the Court(s)/Agencies involved in your case. Once we know exactly what your record states, we review the report so that you know exactly what needs to be expunged. When your record research is complete, a Petition for Expungement is prepared on your behalf. Once prepared, you will review a copy of the Petition to ensure the information is correct and you will then sign a Court document called a Verification in which you make sworn statements about the accuracy of the documents you are submitting. Your signature on this Verification must be notarized and then the attorney signs it and sends it to the Court.


Usually, the hearing is set for some date within a month or two of the filing and notice of the date is sent via certified mail to the various law enforcement/Court/corrections agencies in the County/Township where the offense originally took place. If none of the agencies/officials served with the paperwork enter a formal objection with the Court, which does not usually happen, then the Court will often grant the expungement without a formal hearing. Depending on the Court they may require the Petitioner's attendance at the hearing.


Once the Court is satisfied with the paperwork/appearance, if necessary, the judge signs an Order directing that your records be expunged. When that Order is signed, you may then truthfully answer you have not been convicted of a crime, subject to the exceptions discussed above, and your record will be clear within a short period. It is generally a good idea to re-check your record within 3 - 6 months following the completion of an expungement to ensure that your record is as expected.

 
17. Is there a way to keep an Expungement confidential so my parents and spouse do not know about the offense?

Yes. Our Firm will do everything possible to assure confidentiality of your expungement/underlying matters. Mailings/meetings can be arranged to other addresses or locations and all mailings from the Court are directly to your attorney.

18. I had previously had a minor offense and/or dismissal expunged, but now have another matter or two, but I heard you cannot have a second expungement. Is this true?

No. Provided that you do not exceed the overall limit on the number of matters than can be expunged, there is no limit to how many times you can file for expungement. Therefore, for example, if you had a Disorderly Persons (misdemeanor) conviction previously expunged you can expunge up to two more Disorderly Persons (misdemeanor) convictions whether in one Petition or several spaced over years.
Our office has obtained expungements for many clients who have previously been granted an expungement. On the flip side, we can also obtain expungement of a matter that is currently eligible while not expunging some more recent matter with the ability to re-file later to clear the remainder of the record.

 

Once expunged, however, we still must reveal it in future applications for expungement and it will still count against the limited number of matters one may have and still be eligible for expungement.

 


A Summary of the 2010 Changes to the New Jersey Expungement Law

 
Recent changes to the New Jersey Expungement Law significantly affect expungement eligibility for many types of cases and lowers the time waiting period from 10 years to 5 years for indicitable convictions under certain circumstances. There was no change to the 5 year waiting period for Disorderly Persons or Petty Disorderly Persons offenses.

(italics portions on this page are the actual text of the new law.)

 
There are two instances in which the revised expungement law permits expungement prior to the full ten year wait from the LAST DATE in the case:

 

(a) Less than 10 years has expired from the satisfaction of fine, but the 10-year time requirement is otherwise satisfied, and the court finds that the person substantially complied with any payment plan orered pursuant to N.J.S.A. 2C:46-1, et seq., or could not do so due to compelling circumstances affecting his ability to satisfy the fine; or (In determining whether compelling circumstances exist, . . . a court may consider the amount of fine or fines imposed, the person's age at the time of the offense, the person's financial condition, or any other circumstances regarding the person's ability to pay).

 

(b) at least 5 years has expired from the date of his conviciton, payment of fine, satisfactory completion of probation or parole, or release from incarcearation, whichever is later; the person has not been convicted of a crime, disorderly persons, or petty disorderly persons offense since the time of the conviction; and the court finds the expungement is in the public interest, giving due consideration to the nature of the offense, and the applicant's character and conduct since conviction.

 


The first part of these changes, (paragraph a) can help lower the waiting period when it has been ten years since your actual conviction date, but you did not finish paying fines yet. This situation is relatively unusual and probably will not benefit the majority of expungement candidates.

The second part of the changes, (paragraph b), however, significantly lowers the waiting limit for expungement from 10 years to 5 years if 1, you have not been convicted of any crimes (felonies) or disorderly persons/petty disorderly persons offenses (misdemeanors); 2, and if you can prove to the court that your expungement is in the public interest, looking at the fact of the case, and what you have done since the time of the conviction.

 
In addition, under the new changes, many more types of drug charges that were previously barred from expungement now quaify:

 

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:


(3) Any controlled dangerous substance provided that the convicition is of the third or fourth degree, where the court finds that expungement is in the public interest, giving due consideration to the nature of the offense and the petitioner's character and conduct since conviction.

 
This particular change is likely to be one of the most beneficial to many seeking expungement. For those convicted of 3rd or 4th degree drug sales or distribution/intent to distribute offenses, expungement is now available regardless of the drug involved provided the court finds the expungement consistent with the public interest, based on what you have done since the conviction. The prior expungement law only permitted expungement of sales, distribution/intent to distribute convictions if the drugs involved were very small amounts of marijuana or hashish.


The New Changes also added numerous new offenses to the list of convictions barred from expungement:

  • Human Trafficking;
  • Causing or Permitting a Child to Engage in a Prohibited Sexual Act;
  • Selling or Manufacturing Child Pornography;
  • Knowingly Promoting the Prostitution of the Actor's Child;
  • Terrorism;
  • Producing or Possessing Chemical Weapons, Biological Agents or Nuclear or Radiological Devices.

The general requirements to expunge various types of matters under New Jersey law are listed below.

(Every case is different. This is only a general guide. Some exceptions may apply in your situation.  Please contact an attorney to fully analyze the specific facts and current case law pertaining to your situation.)

 

I. - Arrests not resulting in conviction:

 

a. (1) If you have arrest records that did not result in conviction, i.e. - charges dismissed, found not guilty, etc., you can apply to the Court for expungement as soon as the charges are formally disposed of by the Court handling the criminal matter.

     (2) If your charges were dismissed because you entered a supervisory treatment program or diversionary program (conditional discharge, [PTI]pre-trial intervention) where you were not required to plead guilty, you must wait until 6 months after the Court handling the criminal charges ordered your charges dismissed. (The Court usually orders them dismissed after you successfully complete your supervisory or diversionary program). AND

b. You must not have any disorderly persons, petty disorderly persons, or criminal charges, pending against you at the time your expungement petition is submitted.

 


II - Municipal Ordinance Violations

 

a. If you were convicted of a Municipal ordinance violation, you must wait until 2 years from the date of your conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is the latest date, before you may petition the Court for expungement; AND

b. You must not have any disorderly persons, petty disorderly persons, or criminal charges, pending against you at the time your expungement petition is submitted; AND

c. You must have less than three disorderly or petty disorderly persons convictions and can not have any indictable convictions, (even if previously expunged) at any time, in any state/federal system. (There may be some room to argue that one is entitled to expunge an unlimited number of Municipal Ordinance convictions. If your case falls into the narrow class of those consisting of many Municipal Ordinance convictions, call the Gayanilo Law Firm to discuss the details of your specific situation.)

 

III - Disorderly Persons and Petty Disorderly Persons Arrests/Convictions

 

a. If you were convicted of a disorderly or petty disorderly persons offense, you must wait until 5 years from the date of your conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is the latest date, before you may petition the Court for expungement; AND

b. You must not have any disorderly persons, petty disorderly persons, or criminal charges, pending against you at the time your expungement petition is submitted; AND

c. You must have less than four disorderly or petty disorderly persons convictions and may not have any indictable convictions, at any time, in any state/federal system. (If you do have an indictable conviction, however, it may be subject to expungement even though it precludes your DP exungement.)AND

d. You cannot have ever been granted the dismissal of charges through participation in [PTI]pre-trial intervention; AND

e. You cannot have ever been granted an expungement, sealing of records, or similar relief in any State or Federal Court with respect to a criminal/felony charge.

 


IV - Indictable Offenses Arrests/Convictions (Crimes/Superior Court)

 

a. If you were convicted of an indictable offense and it is not excluded from expungement by state law, you must generally wait until 10 years (or only 5 years if the requirements of the 2010 changes to the Expungement law are met) from the date of your conviction, payment of fine, satisfactory completion of probation or release from incarceration, (the time begins to run from whatever the last date in your case was), before you may petition the Court for expungement; AND

b. You must not have any disorderly persons, petty disorderly persons, or criminal charges, pending against you at the time your expungement petition is submitted; AND

c. You cannot have been found guilty of/entered pleas of guilty- with respect to more than two disorderly or petty disorderly persons offenses or ever been convicted of any other crime; AND

d. You cannot have ever been granted the dismissal of charges through participation in [PTI] pre-trial intervention; AND

e. You cannot have ever been granted an expungement, sealing of records, or similar relief in any State or Federal Court with respect to a criminal/felony charge.


New Jersey Expungement Statutes

2C:52-1 - 2C:25-1-3

 

2C:52-1. Definition of expungement

 

a. Except as otherwise provided in this chapter, expungement shall mean theextraction and isolation of all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person's detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system. b. Expunged records shall include complaints, warrants, arrests, commitments, processing records, fingerprints, photographs, index cards, "rap sheets" and judicial docket records. L.1979, c. 178, s. 108, eff. Sept. 1, 1979.

 

2C:52-2. Indictable Offenses

a. In all cases, except as herein provided, wherein a person has been convicted of a crime under the laws of this State and who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, and has not been adjudged a disorderly person or petty disorderly person on more than two occasionsmay, after the expiration of a period of 10 years from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later, present a duly verified petition as provided in section 2C:52-7 to the Superior Court in the county in which the conviction was entered praying that such conviction and all records and information pertaining thereto be expunged. Although subsequent convictions for no more than two disorderly or petty disorderly offenses shall not be an absolute bar to relief, the nature of those conviction or convictions and the circumstances surrounding them shall be considered by the court and may be a basis for denial of relief if they or either of them constitute a continuation of the type of unlawful activity embodied in the criminal conviction for which expungement is sought.

b. Records of conviction pursuant to statutes repealed by this Code for the crimes of murder, manslaughter, treason, anarchy, kidnapping, rape, forcible sodomy, arson, perjury, false swearing, robbery, embracery, or a conspiracy or any attempt to commit any of the foregoing, or aiding, assisting or concealing persons accused of the foregoing crimes, shall not be expunged. Records of conviction for the following crimes specified in the New Jersey Code of Criminal Justice shall not be subject to expungement: Section 2C:11-1 et seq. (Criminal Homicide), except death by auto as specified in section 2C:11-5; section 2C:13-1 (Kidnapping); section 2C:13-6 (Luring or Enticing); section 2C:14-2 (Aggravated Sexual Assault); section 2C:14-3a (Aggravated Criminal Sexual Contact); if the victim is a minor, section 2C:14-3b (Criminal Sexual Contact); if the victim is a minor and the offender is not the parent of the victim, section 2C:13-2 (Criminal Restraint) or section 2C:13-3 (False Imprisonment); section 2C:15-1 (Robbery); section 2C:17-1 (Arson and Related Offenses); section 2C:24-4a. (Endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child); section 2C:24-4b(4) (Endangering the welfare of a child); section 2C:28-1 (Perjury); section 2C:28-2 (False Swearing) 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.

c. 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 relate to: (1) Marijuana, where the total quantity sold, distributed or possessed with intent to sell was 25 grams or less, or (2) Hashish, where the total quantity sold, distributed or possessed with intent to sell was five grams or less.

d. 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. L.1979, c.178, s.109; amended 1989,c.300,s.23; 1993,c.301; 1994,c.133,s.6.

2C:52-3. Disorderly persons offenses and petty disorderly persons offenses

Any person convicted of a disorderly persons offense or petty disorderly persons offense under the laws of this State who has not been convicted of any prior or subsequentcrime, whether within this State or any other jurisdiction, or of another three disorderly persons or petty disorderly persons offenses, may, after the expiration of a period of 5 years from the date of his conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later, present a duly verified petition as provided in section 2C:52-7 hereof to the Superior Court in the county in which the conviction was entered praying that such conviction and all records and information pertaining thereto be expunged.