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New Jersey Expungements


Courtesy of New Jersey LawSite member, Allan Marain, Esq.

 

 

Basic Concepts

Q1. What is an expungement?

A. 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 over the years. Prospective employers can access these records. Insurance companies, landlords, and prospective creditors can too. To expunge a criminal record means to go through a court process. Upon successful completion of that process, 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.

 Q2. Is an expungement the same as a pardon?

A. No. To expunge a criminal record and to get a pardon are two completely separate things. When an expungement is granted, the person whose record is expunged may, for most purposes, treat the event as if it never occurred. A pardon (also called “executive clemency”), on the other hand, does not “erase” the event. Rather, it constitutes forgiveness. An expungement can be granted only by a judge. A pardon can be granted only by the governor.

Q3. What is the difference between obtaining an expungement of records, and obtaining an expunction of records?

A. There is no difference. Those are just different terms for the same thing.

Benefits and Limitations

Q4. Are expunged criminal records actually destroyed?

A. Expunged records are not destroyed. Rather, they are segregated. That is, they are moved to a special location for expunged records. When an ordinary record search is made, records kept in this special location are not accessed. Thus the results of this ordinary search will be a return of “NO RECORD.”

Q5. Why are expunged records not destroyed?

A. The New Jersey expungement statutes contain provisions under which expungements are not effective. These provisions include situations where a person is applying for employment with a law enforcement agency. Or where a person is applying for employment in the judicial branch of government. Or where a person is seeking a conditional discharge after having had a dismissal from a previous conditional discharge expunged. Or on sentencing for convictions for new offenses following the expungement. So records stored in these special locations are consulted in those situations.

Q6. Then in what situations are expungement effective?

A. There are many. Employment applications to be a teacher need not recite expunged matters. The same is true for employment applications for 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 judicial branch of government. 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 (except law school) or a professional organization, the expungement is completely effective: You need not recite matters that have been expunged.

Q7. Does this mean that I can never get a job in law enforcement, or in the judicial branch of government, or that I can never become a lawyer?

A. That is not what it means. It just means that if you do pursue any of those activities, you would be required to recite 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 prospective employer, or school, or government agency will then consider your entire application, including the expunged information, and either approve or reject your application. But unless a statute specifies it, the recitation is not automatically disqualifying.

Q8. If I’ve had my criminal record expunged and I am later placed under oath and asked about the expunged matter, am I committing perjury if I deny that it ever happened?

A. 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.

Q9. Won’t the FBI continue to report my criminal history?

A. The FBI is governed by federal law, not State law. As such, the FBI is not required to honor State court orders to expunge criminal records. However, as a matter of course, the FBI does routinely honor such orders.

Q10. What about other federal agencies?

A. 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. The way to best handle such situations involves complicated issues of immigration law. Persons facing such issues should consult with a lawyer who specializes on that subject.

Q11. My record was expunged. Yet my criminal history is still showing up when I apply for a job. Why?

A. Private companies all over the country collect criminal history from court records. These companies then put that history into their own data bases. In the normal course of things, no one notifies the companies when a record is expunged. The courts do not even keep track of who has accessed their records. Therefore the information that those companies previously collected is still sometimes reported, not by the court, but by these private companies. This exact situation was discussed in depth in an article in The New York Times on October 17, 2006.

No completely satisfactory solution to this problem exists. Instructions on many employment applications specifically tell the applicant to not list past events that have been expunged. In other situations, if the past event surfaces, the job applicant would likely need to explain to the prospective employer that the matter has been expunged, and show that person a copy of the court order granting the expungement. The applicant should also invite the prospective employer to check directly with the court or police agency. The court or police agency will report back that no record exists.

Q12. I was arrested for possessing a small amount of marijuana, and a pipe. I went to court and got a conditional discharge. After I successfully completed my probation, the court dismissed both of the charges. How will an expungement be of any benefit to me?

A. As you indicate, the charges against you were dismissed. Therefore you have no record of a conviction. However the original arrest still remains on your record. It never goes away automatically. In order for the arrest to not show up on your record, you must have your arrest record expunged.

Q13. My convictions were expunged. Now I want to apply for a gun permit. Should I divulge those expunged matters on my firearms application?

A. No. In fact, questions on the official New Jersey Firearms Identification Card Application Form relating to past criminal convictions or arrests specifically exclude records that have been expunged or sealed. Your New Jersey expungement will also remove any federal firearms disability that arose on account of the New Jersey conviction. This follows from Title 18, Section 921(a)(20) of the United States Code. That provision states: "Any conviction which has been expunged...shall not be considered a conviction for purposes of this chapter, unless such...expungement...expressly provides that the person may not ship, transport, possess, or receive firearms."

Q14. I was able to expunge my criminal record in New Jersey. Now I am seeking licensure in California to be a teacher. California requires that all past offenses be divulged, even if they have been expunged. Must I divulge it?

A. No authoritative answer to this question exists. On the one hand, Article IV, Section 1, of the United States Constitution requires states to afford “full faith and credit” to decisions of courts of other states. This Constitutional requirement is implemented by 28 U.S.C. Section 1738. An expungement of a New Jersey offense is a decision of a New Jersey court. Thus it would seem that other states would be required to recognize the expungement and consider the matter the same as it would be considered in New Jersey.

Unfortunately, it does not always work that way in practice. Public agencies in several states require that applicants for professional licenses divulge prior criminal matters, even when those matters were expunged in the state in which they arose. These requirements are specified in the statutes of those other states. Thus, for example, Florida Statutes 943.0585 and 943.059 require applicants to disclose prior expunged matters. Similarly, Section 44009 of the California Education Code considers prior criminal convictions regardless of the subsequent history of those offenses. The California Commission on Teacher Credentialing specifically requires information concerning past convictions, even if those convictions were expunged.

The United States Supreme Court has never ruled on whether such practices violate the Full Faith and Credit Clause. One United States Court of Appeals did hold, however, that such practices are legal. White v. Thomas, 660 F.2d 680, 685 (5th Cir., 1981), cert. den., 455 U.S. 1027 (1982), held that Texas requiring information concerning an out-of-state matter that was expunged does not violate Full Faith and Credit because Texas is not required to conform its practices to the law of other states. The issue has been resolved only in the Fifth Circuit.

Expungement lawyers in New Jersey believe that the reasoning in the White v. Thomas decision is ridiculous. However, barring an authoritative decision in any particular location, the safer course might be to divulge the prior criminal history, even though expunged in New Jersey. Issues such as these should be presented to lawyers licensed to practice in the specific jurisdiction in question.

Q15. Do I really need to have my record expunged at all?

A. The answer to this question depends on the value that you place on an expungement. On the one hand, a record of a criminal conviction, or even an arrest, can keep people from obtaining a much desired job. On the other hand, people are sometimes proud of their criminal records. This can happen, for example, when criminal records arise out of demonstrations for a worthy cause. Persons who are self-employed often have no need for an expungement. But even self-employed persons may need expungements. For example, they may want to be considered for government contracts. Or they may want to rent an apartment, or coach a local sports team, or adopt a child. What it all comes down to is that this is a question that only you can answer.

Eligibility

Q16. Can anyone expunge his criminal record?

A. No. Whether someone is eligible for an expungement is determined by the law of the state where the event occurred. Thus a person who qualifies for an expungement in Nebraska may not qualify in New Jersey, since the law in each state is different. In New Jersey, the determination of who qualifies is quite complicated. Expungement lawyers in New Jersey know the factors to be considered to expunge a criminal record. These factors are set forth in the expungement statutes. They include the following:

bullet Is what the person wants expunged just an arrest, or was there also a conviction?
bullet If there was a conviction, what was the person convicted of?
bullet How many times has the person been convicted?
bullet When was the person convicted?
bullet What was the person's sentence?
bullet Were all fines paid? When?
bullet Has the person ever previously had an expungement?
bullet Are any charges against the person still open?

An authoritative determination of eligibility requires a conference with expungement lawyers in New Jersey.  However, you can obtain a preliminary assessment from the questionnaire to be found on this site.

Q17. How long must I wait before I can expunge my conviction?

A. All convictions require a waiting time before you can seek expungement. Dismissals also will require a waiting time if the dismissal resulted from successful completion of a diversion. The waiting times are as follows:

 

Nature of Conviction
Waiting Time
Crime (Felony) Ten years
Disorderly Persons Offense (Misdemeanor) Five years
Petty Disorderly Persons Offense (Misdemeanor) Five years
Juvenile Adjudication Five years, or period for equivalent offense if committed by an adult, whichever is less
Municipal Ordinance Two years
Young Drug Offender
(21 years of age or younger when offense was committed)   
One year
Dismissal following successful completion of diversion
(PTI or Conditional Discharge)
Six months
Dismissal, Other None
 

Q18. Do these times run from the date of the offense?

A. No. The times begin to run as of the date that the judge imposes sentence, or the date the applicant finishes paying all of his fines, or the date the applicant successfully completes his probation, or the date the applicant completes his jail or prison sentence, or the date the applicant completes his parole, whichever comes last. Concerning payment of fines, however, the New Jersey Legislature is presently considering S2935. S2935 is a bill which, if enacted into law, will allow persons to apply for expungements when all time requirements except payment of fines have been satisfied. Applicants in such situations will have to satisfy the court that the expungement is in the public interest, and that compelling reasons exist for not meeting the payment requirements. It bears repeating that S2935 is only a bill. It is not law. Whether it will become law in its present form, or whether it will become law at all, cannot be determined at this time. Persons affected by this proposed legislation should check back here from time to time.

Q19. I was charged with a federal crime. What is involved in getting that expunged?

A. Except in highly unusual circumstances, federal arrests and convictions cannot be expunged.

Q20. I was found guilty of driving while intoxicated. What is the waiting time before I can get that matter expunged?

A. Driving while intoxicatated is classified in New Jersey as a motor vehicle offense. Motor vehicle defenses are defined in Title 39 of New Jersey Statutes. One of the New Jersey expungement statutes specifies that no offenses defined in Title 39 can be expunged. For that reason, unless New Jersey laws change, your DWI conviction cannot be expunged, regardless of how much time has passed.

Q21. When I was nineteen, I pleaded guilty to possession of cocaine with intent to distribute. Two lawyers have told me that that offense can never be expunged. Are they right?

A. The offense that you describe is on the border line of what can or cannot be expunged. The expungement statute says that possession of a controlled dangerous substance with intent to sell cannot be expunged. But there is no drug statute in New Jersey that prohibits “possession with intent to sell.” The drug statute is phrased in terms of “possession with intent to distribute.” All sales involve a distribution, but not all distributions involve a sale.

On August 3, 2007, the Superior Court of New Jersey, Appellate Division, addressed this anomalie. The case that decided this issue is Expungement Application of G.R. What the G.R. court said is that convictions for possession with intent to distribute can be expunged, but only if the distribution was to be gratutious. If the intent to distribute was to be in connection with a sale, then expungement must be denied.

The practical effect of this decision is that persons may apply to have convictions for possession with intent to distribute expunged. However, such applications will seldom sail through smoothly. The applicant will need to anticipate an objection from the prosecutor. An in-court hearing will then be needed. At this in-court hearing, the judge will consider the entire circumstances of the conviction and make a determination concerning whether or not the controlled dangerous substance was intended for sale. The final decision to grant or deny the expungement application will turn on that determination.

It is important to note that the losing party after such a hearing has the right to appeal the judge's decision. The bottom line is that a person seeking to have this offense expunged should expect delays, court appearances, and a process that will likely be very costly with no guaranteed outcome.

Finally, a bill presently pending in the New Jersey Legislature, if passed, will make significant changes to eligibility in this (as well as several other) areas. This bill will allow persons convicted of third- and fourth degree sales of controlled dangerous substances to expunge their convictions if the applicant can persuade the court that expungement is in the public interest.

Q22. I received an expungement a few years ago. Unfortunately, I was subsequently arrested again. Can I get a new expungement for those later charges?

A. Maybe. On the one hand, there is no limit to the number of times that a person can apply for and receive an expungement. However, when determining whether a person is eligibile to have his record expunged, the court will examine the person's entire past criminal history, including matters that were previously expunged. Thus, to determine eligibility on the newest matters, the person's complete criminal history must be considered, as if the person had never previously received an expungement.

Cost

Q23. What does it cost to expunge my criminal record?

A. Cost depends on many factors. These factors include the following:

bullet For how many arrests is expungement being sought?
bullet When did those arrests occur?
bullet Do you have (or can you obtain) complete court records relating to all arrests that you ever had (including out-of-state arrests, and arrests for which expungement is not being sought)?
bullet What arrests have you had for which expungement is not being sought?
bullet Will anyone object to the expungement application?

Cost also depends on which lawyer you use. Different lawyers charge different prices. These prices reflect the lawyer's experience, expertise in the area in question, and amount of time that the lawyer is willing to spend with his clients.

In many cases, expungement lawyers in New Jersey will be able to provide you with an estimate of total costs during the course of an initial telephone conference or office visit.

Procedure

Q24. How long does it take to expunge a criminal record?

A. In most cases, the time to obtain the order of expungement after the necessary papers are filed with the court is four months or less. Expungements in Bergen and Essex Counties typically take longer.

Q25. Must I personally appear in court to obtain the expungement?

A. Usually, no. In some situations, a personal court appearance could be necessary. One of those situations would be if someone objects to the application. In such a situation, the judge will likely require the person to appear. The expungement judge in New Jersey's Passaic County formerly required a personal appearance on all expungement applications, regardless of whether objections were filed. As of late 2003, Passaic County appears to have discontinued that practice.

Q26. Even though the statute says that I qualify for an expungement, won’t the victim, or the cop who arrested me, object anyway?

A. The expungement statutes are very specific concerning who must be notified when a person applies for an expungement. Neither the victim nor the arresting officer are included amongst the persons who receive notice of the expungement application. Thus when a person satisfies all of the requirements of the statutes, it is rare that anyone will object.

Q27. I was convicted of prostitution. A few years after I was arrested I got married. I never told my husband about my past. Will he find out about it if I apply for an expungement?

A. The court mails all notices concerning an expungement application to the lawyer, and not to the person whose record is to be expunged. Expungement lawyers in New Jersey are discreet. If you alert us to the sensitive household situation, we will hold mail that we normally send to clients, and communicate with you only by e-mail, or by whatever other method you specify.

Q28. I was charged with possessing a small amount of marijuana a few years ago. I received a conditional discharge, paid fines, and successfully completed my probation. That is the only time I was ever charged with an offense. Can anything go wrong when I apply to have my record expunged?

A. No lawyer who is honest with his clients guarantees a particular outcome. In the situation you describe, the process should run smoothly. But always the possibility of something unexpected exists. These possibilities include the following:

bullet You were charged with another offense that you've forgotten about.
bullet Someone else who was arrested used your name and your social security number.
bullet You never actually completed all of your payments to the court.
bullet You did complete your payments, but the court did not properly record it.
bullet You did successfully complete your probation, but the court never formally dismissed the complaint.
bullet Someone objects to the Petition, even though the objection has no legal or factual basis.

That said, expungement lawyers in New Jersey would add that while complications such as these sometimes happen, they are the exception and not the rule. Your own past court history and payment of fines is something that you likely are on top of. Those other situations happen but, fortunately, rarely. Most potential expungement problems are weeded out by careful review of the situation before filing the application with the court.

Q29. Do I need one of the expungement lawyers in New Jersey?

A. Not necessarily. Some people obtain an expungement without the assistance of a lawyer. However, the process is complicated. So is the law. Much paper work is involved. There is a big learning curve. Prosecutors and judges demand extremely strict adherence to the technical requirements contained in the statutes. Mistakes in the process are seldom fatal. However, such mistakes can cause great delay in obtaining the expungement. Expungement lawyers in New Jersey make the process faster, easier, and less prone to mistakes. Nevertheless, if you want to explore obtaining the expungement on your own, the New Jersey Administrative Office of the Courts has provided forms with instructions. You can find these materials at http://www.judiciary.state.nj.us/prose/10557.pdf.

Expungement Lawyers in New Jersey

Q30. My arrest occurred in South Jersey. Allan Marain’s offices are in New Brunswick. Wouldn’t I do better with a lawyer from South Jersey?

A. Allan Marain is a recognized authority on handling expungements throughout New Jersey. The monthly magazine of the New Jersey State Bar Association published his article on handling expungement cases. Prevailing practice in most cases is that courts handle New Jersey expungement petitions on the papers, with no personal appearance. Allan Marain represents expungement clients worldwide on an ongoing basis from his New Brunswick location. Judges and prosecutors throughout New Jersey regularly process petitions that he submits for his clients. Client communications are routinely handled by telephone, by mail, and by e-mail. Thus Allan Marain’s New Brunswick location will be a factor if you want to meet with him face-to-face. In all other cases, his office location should not matter.

Q31. The arrest that I want expunged happened in New York. Can Allan Marain get that arrest expunged?

A. Allan Marain is licensed to practice only in New Jersey. Therefore he is not able to represent persons seeking expungement of matters from other states.

Q32. Should I delay contacting expungement lawyers in New Jersey until my waiting period has passed?

A. No. The sooner you begin, the better. In order for expungement lawyers in New Jersey to prepare the necessary expungement application, they often must obtain pertinent information from the police, from the court, or from other sources. Obtaining this information requires time, sometimes months. While your waiting period is still running, expungement lawyers in New Jersey can gainfully use this time to collect all necessary information. In that way, as soon as your waiting period is over, expungement lawyers in New Jersey will be ready to hit the ground running.

ALSO, if the applicant retains the services of Expungement lawyers in New Jersey before the waiting period is over, the applicant is protected against any fee increases that may occur.

Q33. I would like to expunge my New Jersey criminal record. How do I begin?

A. The first step is to determine whether you are eligible for an expungement under the statute. This requires a detailed review and analysis of all convictions and arrests that you have ever had. You can get an assessment right now from our eligibility questionnaire. But that assessment is only preliminary. You should discuss your situation with one of the expungement lawyers in New Jersey.

Q34. How can I get more information about the law practice of Allan Marain?

A. There are three ways:

  1. Visit http://www.MarainLaw.com;

     
  2. Send Allan Marain an e-mail; and

     
  3. Call him. His telephone number is 732-828-2020.

 

 



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