An expungement is a legal process that allows for the removal of records of select past criminal offenses for adults or acts of delinquency among juveniles. Expungement of juvenile criminal records is a key aspect of a fair judicial system because there are numerous reasons why people may end up committing crimes, knowingly and unknowingly, when they are young due to the social environment that impacts their behavior and the callousness of youth. Young adults also make mistakes of this nature, whether they go to college or not. Those who engage in crimes at a young age and wish to go to college may desire to expunge their record so as not to disturb or inhibit future life plans.
Expungement throughout the nation is growing as states seek to find ways to allow people convicted of drug crimes a way to return to normal life. Law enforcement officials and legislators are realizing that using alternative means to deal with drug crimes can lead to improved lives and save the state money. As the opioid crisis continues to be a challenge for the country, even during a pandemic, and as an increasing number of other drugs are being decriminalized at the state level, the need for robust expungement policies is substantially greater than in the past. In addition, the need for experts who understand the process in their state and can help clients maximize the benefits of the expungement process has also grown over time.
If you file an expungement petition in New Jersey, and it is approved by a court, adverse records associated with the crime at issue will not appear when you are subjected to a background screening. For example, if you had a criminal record and applied for a job that required a background screening (most jobs), there would be no information in the screening related to this prior criminal activity. The employer would, therefore, not be aware that you had engaged in a crime and would not use that information against you when deciding if you should be hired. This does not guarantee that a person will get a job, but it does increase the chances that a person has. The criminal record is treated as though you never engaged in the criminal act because it is truly removed from being accessible by the public. The record still exists for limited purposes, such as a job application to become a police officer or sheriff. However, in general, this is truly a new lease on life. This is an opportunity for the person who engaged in the crime to make himself or herself into a better person. Eligibility requirements do exist and must be met if a person is going to benefit from the expungement process. There are also limits to how this process will impact information about your criminal offenses, if you have more than one.
What is expungement?
Expunge means “to erase.” The New Jersey Criminal Code of Justice allows for certain criminal offenses to be erased from the record of an individual. The general purpose behind this approach is to help individuals who are younger move forward with their lives after they are appropriately punished by New Jersey, such as through imprisonment and/or probation. For these younger people, lawmakers believe and think that they can be reformed and that having a criminal record just makes their already difficult life worse. Instead of creating a disadvantage for these young people, lawmakers are trying to help them get a new start in life. Also, a number of criminal offenses for younger people involve them being associated with crimes that they may not have been fully aware of at the time. Expungement can help remove criminal acts of this nature by extracting and isolating all records that are filed with the court that convicted the individual. In addition, records of detention or correctional facilities can be extracted. Some of the types of documents that can be extracted according to the NJ Criminal Code of Justice are: “complaints, warrants, arrests, commitments, processing records, fingerprints, photographs, index cards, “rap sheets” and judicial docket records.” This wide range of documents helps decrease the chance that something will still be available during criminal records searches that would indicate the person has a criminal history. However, since there are so many records to manage, expert legal help is often needed to make sure all key records are expunged when they exist in different offices of the criminal justice system. Expungement is not the same as forgiveness for a crime, which is a pardon. Also, pardons do not require that records be expunged. Pardons are granted by elected officials – such as governors or Presidents. These are usually given to people who are in prison for reasons that the elected official does not agree with. It is usually used to help people who help the elected official in the past with donations or campaign work.
Another important note on expungement is that only one indictable conviction or episode can be expunged. Individuals with multiple offenses can have part of their record modified, but not all of it. There are efforts underway in New Jersey to change this aspect of the expungement process. The new approach will help people with multiple offenses, such as someone who was charged with using and selling drugs or perhaps taking drugs and engaging in criminal activity at the same time. Partial expungement can still be useful for people if the remaining crimes are minor, but some employers accept no criminal record. For those employers, the ability to expunge all offenses is important.
What are the limitations on what can be expunged?
What should be clear at the outset for any person seeking to expunge criminal records is that not all information related to criminal offenses exists in the criminal justice system. In the era of social media and countless streams of information, there are numerous other places that have access to criminal offense information. For example, newspapers may have information related to your offense so that if a background searcher “googles” your name and crime, something may appear. This search could also identify social media pages of people discussing the criminal activity, especially if it occurred in an area that does not have much criminal activity usually or if the crime is unique in some way. Also, individuals aware of your criminal offense are not prohibited from spreading this information in any way. People have freedom of speech in the United States. They can make statements to others or post thoughts to various social media outlets regarding your criminal activity. In addition, criminal offenses in more than one state may lead to a situation where some offenses are expunged, and others are not. This will mean that information from the other state can influence your chances of moving forward in your current state of residence where a crime was committed.
Other sources of information about your criminal record may be addressed in other ways. For example, there are services that review your reputation on the Internet and work with online companies to remove negative information. As they work on building your reputation, they can also request that people remove damaging statements regarding your prior criminal activity. This may not work, but it is a useful approach to try.
What is the importance of expunging criminal records?
Since there are limitations on expungement, you may be wondering why you would consider seeking to expunge your records. There may still be benefits from doing so. One case where it may be useful is if you are seeking to move away from where you engaged in the criminal act and start a new life. Remaining in the same area may prevent you from escaping the awareness of community members that you were a convicted criminal or juvenile delinquent. However, expunging your records and moving to another place would allow you to engage in a normal life without worrying about the prior criminal offense or offenses. This can be important for numerous aspects of your life. When you seek a job, a background check is conducted. There are some jobs that will allow minor problems on a criminal record because the demand for labor is so high, but most employers seek to avoid people with criminal records if they can. Also, when you apply to work with children – such as the coach for your child's sports team – you will be subject to background checks. Also, financial consequences can arise. You may not be able to rent a place to live or get access to a loan for a home if you have a criminal record. Volunteering in schools can also be challenging because background checks are required for this. Applying for most white-collar jobs will not work if you have a criminal record. Any efforts you have taken to reform yourself and increase your education can be thwarted by a criminal record. This is definitely something you want to adjust if you can. With legal guidance, you can move forward in a manner that helps improve your life.
How much time does the expungement process take?
The time for the process may vary depending on the backlog of courts and how cases are being prioritized. Also, the complexity of your case will matter. For example, if records exist in more than one state or for a crime that involved numerous people or a criminal organization. Typically, half a year is enough time to address the needs of most people requesting an expungement. With severe court backlogs as many states are facing as a result of the COVID-19 pandemic, the process can take longer. The process takes so long because of all the steps involved. These steps include, but are not limited to: 1) Identifying or obtaining criminal records from all relevant sources and locations; 2) File a notarized expungement request; 3) Send the petition to the appropriate government agencies; 4) Attend a hearing during which the petition is discussed with a court; and 5) If the petition is approved, submit the final expungement order to the appropriate government agencies to execute the order. Some factors that can delay this process are slowing moving organizations that have your criminal records. There is not much of an incentive for the government agencies to expedite the request unless required to do so by some oversight body. Another challenge regarding the speed of the process is the backlog of the court. Your case may be prioritized at a low level since it is not a pressing matter. If the petition is approved, the speed at which organizations receive and respond to the order may also pose a timing challenge. With all the potential hiccups that can occur, you will need patience throughout that process. Legal help will also help you work through these complexities.
How can the expungement process be expedited?
New Jersey does not offer an expedited review of expungement petitions. Numerous processes are involved in acquiring all the necessary information to review and potentially approve an expungement process. In addition, this process is helping improve the life of someone with a criminal record. This is not a traditional role of courts or law enforcement. The existing system has numerous challenges that can occur along the way. The best way to move quickly through the process is to have all paperwork in order for courts so that there are no questions about what is being presented. Managing all of this on your own can be quite difficult because there are numerous government entities to interact with if you have a complicated case. A lawyer can help you with this process and ensure that a successful outcome is likely to occur.
Juvenile Expungement (2C:52-4.1)
Records of juvenile delinquency are eligible for expungement five years after the individual has been discharged from detention, probation, or other related supervision. The individual must not have been convicted of any subsequent offenses during this five-year period, either as a juvenile or an adult. This is an important point that many people overlook regarding expungement. Lawmakers created expungement as a way to help people who are focused on self-improvement. If a person decides to continue a life of crime, the person will potentially take away the opportunity to expunge records. In addition, the individual must not have had adult criminal charges dismissed after completing alternative sentencing or diversionary programs. The limitations of this type of expungement are an incentive for juvenile delinquents to focus on improving their lives after being released from detention. If they continue to move forward, a normal life is possible without the hindrance of a criminal record. If they continue their criminal behavior, they forfeit their ability to have a chance to live normally.
Young Drug Offenders Expungement (2C:52-5)
New Jersey has some provisions that apply specifically to those under the age of 21 who are convicted of drug-related offenses. These are offenses associated with the use or possession of controlled substances. After a one-year period has elapsed since the individual has satisfied all conditions, they may apply in the court where the conviction occurred. To be eligible, the individual must not have had any subsequent convictions or had charges dismissed after completing alternative sentencing or diversionary programs.
Those whose conviction involved selling or distributing drugs or possession charges with intent to sell are excluded. This applies except when the offense was for intent to sell or distribute marijuana when the amount of the drug was less than 25 grams. An exception also applies to hashish when the amount of the drug was less than 5 grams.
Indictable Offenses (2C:52-2)
The majority of indictable adult offenders are eligible for expungement of their criminal record after 6 years (this was ten years but was updated in 2018) has passed since all the conditions of the case were satisfied. To qualify, the individual must not have had subsequent criminal convictions or four (this was two but was also updated in 2018) or more disorderly person offenses or petty disorderly person offenses. Those wishing to apply may do so in the court where the conviction occurred.
Some individuals may be eligible for expungement of charges when only five years have elapsed since all conditions of the conviction were satisfied. To qualify, the individual may not have had any subsequent convictions, including any disorderly person or petty disorderly person offenses. The decision to allow for expungement under these circumstances is based on the court's discretion.
Those seeking expungement that is ineligible due to having four or more convictions for a disorderly person or petty disorderly person offenses may still qualify for expungement. This also is based on the court's discretion. The court may consider the severity of the offenses and other factors. Convictions associated with serious crimes such as arson, manslaughter, murder, and rape, are not eligible for expungement.
Arrests not resulting in conviction (2C:52-6)
Individuals may be arrested but subsequently not actually convicted. This process of prosecuting the person can generate numerous documents and records. This person can also file a petition for expungement of these records. Similar to someone who is convicted, this information may impact future efforts by a person to live a normal life, so removing the records are a key part of them moving beyond this unfortunate period of life.
Petition for Expungement
There are several formal documents that must be completed for an expungement. They are as follows:
- Form A: The Petition for Expungement that must be filed with the court where the conviction occurred.
- Form B: An order that requests a hearing. Upon receipt, you can expect the court to schedule a hearing typically between 35 to 60 days.
- Form C: The Expungement Order that must have the judge's signature.
- Form D: A cover (form) letter that is sent to the Superior Court Case Management Office. A filing fee payable to the New Jersey Treasurer is also required.
The court may require you to attend a formal hearing if an agent of law enforcement has an objection to the potential expungement. The judge may otherwise waive the hearing at their discretion and approve the expungement. Each of these forms has its own complexities. Legal expertise can help you navigate them with success.
Grounds for denial of relief (2C:52-14)
The decisions of the courts are difficult to predict when a petition for expungement is filed. There are various reasons that a court can deny the request. One reason is that there is a legal requirement that has not yet been satisfied by the person committing the criminal offense. As legal standards change over time, a petition may be filed prior to some new legal change that blocks the petition from being effective. Prior to filing, all existing legal standards must be reviewed to prevent such problems from arising. A lawyer familiar with this process can make sure that you follow all the required processes required by courts based on the most current legal requirements at the time of your petition. Another reason is that the court will decide that it has a great need for the records to remain available. For example, the records may be needed to continue an investigation related to someone else who has not yet been convicted but is a suspect for a crime. Another example is that the records could be informing an ongoing, long term investigation, and they need to remain available to aid in the solving of this larger, more complex case. In these situations, a party receiving notice of the expungement would typically need to provide proof that the records are better left available. For certain offenses, courts will engage in this assessment independently. Another reason is that there is a connection between the conviction being expunged and other charges as part of a plea bargain. For example, an individual may plead guilty to a charge of using illicit drugs while other individuals with that person are robbing a store. Both crimes could be connected. However, the person may plead guilty to drug use in return for no conviction for robbery and serving as a witness that other individuals committed the robbery. Yet another reason is that civil litigation is underway involving the criminal offense, and this litigation requires that these records remain available. For example, a person may have been convicted of sexual assault, and this assault caused serious medical injury to a person. There could be a civil case seeking money for the damage suffered by the person who was assaulted. Denial may also occur when a person had a previous crime expunged. This particular rule is under review. The general concept behind it is that people with multiple criminal problems – repeat offenders – should not be able to avoid all responsibility for those various offenses. However, a counter-argument is that some criminals may engage in the same small crimes over and over when young such as using illicit drugs. Failing to expunge these repeat problems that can lead to the person being punished more than necessary for a chronic problem that needs treatment rather than a criminal conviction and prison time. Finally, a denial can occur when the person seeking expungement has already had charges dismissed when the person was attending a diversion program. In this manner, the court is treating a diversion program similar to a prior conviction. The general idea is the same, but what is different is that the diversion program may give the person an opportunity to avoid prison or jail and improve her/his life. The state does not want to reward anyone for squandering the great opportunity these programs offer.
Records to be removed (2C:52-15)
If your expungement request is approved by a court, you should be aware of which documents need to be expunged. The documents include all records of arrest and conviction. The records should be removed from the files of agencies that receive notice of the expungement. The head of these agencies should create a process to ensure that the records are not released for any reason or utilize for any purpose. If the records are requested in the future, departments and agencies receiving the request should reply that no information exists. If records are provided after expungement, you should seek legal help to make sure the expungement is being enforced correctly.
Expunged record including names of persons other than petitioner (2C:52-16)
If your criminal offense involved other individuals and they are named in records, these records will likely not be expunged unless the other person also has an approved expungement petition request.
County prosecutor's obligation to ascertain propriety of petition (2C:52-24)
The county prosecutor that receives the expungement notice has the responsibility to verify that the request has all the appropriate facts in it and bring any problems to the attention of the court.
Vacating of orders of sealing; time; basis (2C:52-26)
An expungement order can be reversed if within 5 years the court that provides the order finds out that there are pending charges that would prevent you from receiving expungement. This could mean your criminal record is maintained.
Motor vehicle offenses (2C:52-28)
The expungement law does not apply to arrests or convictions for motor vehicle accidents. These offenses often involved numerous individuals and also have insurance consequences so that these records are connected to non-law enforcement stakeholders.
The cost of the petition is quite low - $30. The benefits that can arise from expungement are much greater than the costs. Expungement could increase your chances of getting a job and getting subsequent promotions. It could also improve your general happiness since your criminal record will not hinder your life in some way.
Effect of expungement (2C:52-27)
The expungement effectively removes a criminal record as though it never occurred. Employers will not have access to these files, with the exception of law enforcement employers.
The process for expungement continues to evolve in New Jersey. A law was passed in late 2019 to modify the expungement process. This law was initially supposed to become effective in June of 2020, but given the challenges with the court system functioning normally during the pandemic, the changes were delayed until February 2021 based on an Executive Order for the NJ governor.
The changes are modifying drug-related offenses to be treated similarly to disorderly persons offenses. This will allow more flexibility for individuals with criminal offenses to also have a drug offense and still be able to expunge their criminal offense. The person could have up to five drug offenses under the new approach before being denied expungement of a criminal offense.
The new approach also lowers the waiting period from six years to five years. This continues a trend to lower this amount of time. The state appears to be learning that the length of time impacts people with criminal offenses greatly. People who are able to get their records expunged earlier can become more productive residents for the state earlier. Individuals can also apply for expungement of criminal offenses even if they already had one offense removed. One of the more exciting changes is that automatic expungement will be centralized and occur after ten years of law-abiding behavior by people with a criminal offense. This approach will decrease the burden on courts and individuals. However, since this is a new strategy, not yet in place, it will likely still require legal assistance in order to make sure it is functioning well. The new approach will also allow people with multiple indictable offenses to receive expungement for all of them.
Once your crime is expunged, how can you address questions about your prior crimes?
A common question that people have with regards to expungement is how they should or should not respond to various questions regarding their criminal past. One of the unique aspects of expungement is that the person is legally allowed to say that they have no criminal record. This may seem strange at first, but when considering the purpose of expungement laws, one can better understand why this would be the case. The purpose of these laws is to provide a second chance to a person. Without the ability to truly behave and respond as though no criminal record exists, the person would not have this second chance. The person may still encounter people who are aware of their criminal past. The expungement law does not impact what the rest of society knows and how they perceive a person. This reputation building is up to the individual who engaged in the criminal offense.
Importance of Legal Representation
Those seeking to have a criminal record expunged should consult with a knowledgeable criminal defense lawyer. Your attorney will determine your potential eligibility for expungement, make the court requirement process more efficient, assist you with preparation for a hearing if applicable, and more.
New Jersey Attorney for Expungement of Past Conviction Records
Joseph D. Lento is a defense attorney with years of experience in representing clients in the New Jersey court system. Contact the office at (888) 535-3686 today to learn how he can help at any stage of the New Jersey criminal process, including addressing and resolving past mistakes.