EXPUNGEMENTS - The Law Office of Joseph A. Rutigliano, North Bergen and Hackensack, New Jersey

The Law Office of

JOSEPH A. RUTIGLIANO, L.L.C.

EXPUNGEMENTS IN NEW JERSEY

What is an expungement?

An expungement is the removal and isolation of all records on file within any court, detention or correctional facility, law enforcement, criminal justice agency or juvenile justice agency concerning a person's apprehension, arrest, detention, trial or disposition of an offense within the criminal or juvenile justice system. Unless otherwise provided by law, if an order for expungement is granted, your arrest, the disposition and any related proceedings are considered not to have occurred.

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, 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 receive an Order signed by a judge. This 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.

What is the difference between an expungement and a pardon?

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.

Are expunged criminal records destroyed?

Expunged records are not destroyed. Rather, they are segregated. That is, they are moved to special locations for expunged records. When ordinary record searchs 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.”

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, employment in the judicial branch of government, 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.

Then in what situations are expungements effective?

There are many such situations. For example, 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. Also, applications to obtain professional licenses (other than to practice law) similarly need not recite court proceedings that have been expunged. Similarly, after the court expunges a 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.

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?

It does not mean that at all. It just means that if you do pursue any of those activities, 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 prospective employer, or school, or 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.

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?

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.

Will the FBI continue to report my criminal history?

The FBI is governed by federal law, not State law, and 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.

What about other federal agencies?

Important federal exceptions to the effectiveness of expungement orders are the Department of Homeland Security, including the United States Citizenship and Immigration Services (USCIS). 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 us for more information relating to their particular circumstances.

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

Since your charges were dismissed you have no record of a conviction. However the original arrest remains on your record. It does not go away automatically. Its mere existence can put you at a competitive disadvantage. Your arrest record can cause a prospective employer to hire someone else who is equally (or less) qualified, instead of you. Discrimination against persons with an arrest record may be unfair, but it nevertheless exists. In order for your drug charge not to show up you must have your arrest record expunged.

I was arrested and now want to apply for a firearm permit. Will an expungement benefit me?

It depends on what you were arrested for, but 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.") Please note that if you previously had a gun permit that was revoked, you would have to divulge that fact, even if the reason for the revocation was conviction for an offense that was later expunged.

Can anyone expunge his criminal record?

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. Please consult us for more information relating to your particular circumstances.

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

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. These times are as follows:

Nature of Conviction/Waiting Time

Crime (Felony): Ordinarily, ten years. The court will consider an application to expunge a felony conviction after five years under a possible "Early Pathway” provision. See below.

Disorderly or Petty Disorderly Persons Offense (Misdemeanor): Five years, but three years under a possible "Early Pathway” provision. See below.

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

Not guilty by reason of insanity, or not guilty for lack of mental capacity: These dispositions cannot be expunged

Dismissal: People mistakenly believe that if a case is "dismissed" in Municipal Court, their criminal history will not appear on a background check. However, unless the charge, arrest and dismissal are expunged, they will appear on a background check. The law on this changed in 2016. Previously, a person who was charged, arrested and whose case was dismissed in municipal court, had to file an expungement petition to have the charges, arrest and dismissal expunged. The new amendment requires the municipal court judge or court administrator to sign a written confirmation, to be delivered to the Criminal Division of the Superior Court by the person who received the dismissal. After delivery, it becomes the responsibility of the Criminal Division and the County Prosecutor's Office to ensure that the arrest, charges and dismissal are expunged.

Drug Court: Although this only applies to those individuals who participated in and graduated from Drug Court, it has the most far reaching effect. When a Drug Court participant (sentenced to "Special Probation" Drug Court) successfully completes the program, his or her entire criminal history can be expunged. This will apply to every arrest and conviction for every crime or offense, except for convictions for crimes that have always been barred (such as murder, sexual assault, or robbery). The Drug Court graduate will not need to file the expungement petition since Drug Court personnel will expunge the entire criminal history through the expungement process. Again, these amendments only apply to those who have participated in and successfully completed Drug Court.

What is an "Early Pathway" provision? In some cases the court will allow you to show that granting an expungement is in the public interest. What might qualify you for this early pathway? Perhaps proof of completion of college, full-time employment, connection with a religious organization, community service, letters positively describing your character, work ethic and personal growth since the conviction. Every case is different and it may depend on what your conviction was for.

Do these times run from the date of the offense?

No. The times run from the date that the judge imposes sentence, the date you pay all of your fines, the date you successfully complete parole or probation, or the date you complete your jail or prison sentence, whichever comes last. A law enacted on January 12, 2010, that will become effective on March 13, 2010, changed this requirement somewhat. Under this new law, the court may relax the ten-year waiting period relating to payment of fines if the court finds that fines were paid substantially on the schedule specified by the sentencing judge, or if the court is satisfied that compelling circumstances prevented you from paying your fines.

Should I delay beginning the expungement process until my waiting period is over?

No. The sooner you begin the better. In order for your attorney to prepare the necessary expungement application, he or she 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 running, your attorney can gainfully use this time to collect all necessary information. In that way you may be ready to file your application as soon as your waiting period is over.

Additionally, there may be other important reasons why you may wish to proceeded as quickly as possible. Consider the following:

• You may unexpectedly need to change jobs. It takes months to expunge a record. Even when things go smoothly and you may not be able to wait that long.

• If you are charged with a new offense, you will be unable to expunge any records at all until your new charges are ultimately resolved.

• Eligibility to expunge records is measured against the law in effect when the expungement application is filed, and not against the law in effect at the time of the arrest. The Legislature can change the rules at any time.

I was found guilty of driving while intoxicated. Can that matter be expunged?

In New Jersey driving while intoxicated is classified as a motor vehicle offense. Motor vehicle offenses are defined in Title 39 of New Jersey Statutes. The New Jersey expungement statutes specifiy that offenses defined in Title 39 cannot be expunged. For that reason, unless New Jersey laws change, a DWI conviction cannot be expunged, regardless of how much time has passed.

How long does it take to expunge a criminal record?

Typically, the time to obtain the order of expungement after the necessary papers are filed with the court is approximately three to four months. Expungements in some counties take longer.

I was convicted of something that I never told my spouse about. Will he/she find out about it if I apply for an expungement?

The court mails all notices concerning an expungement application to the lawyer, and not to the person whose record is to be expunged. We are discreet. If you alert us to a 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.

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

The first step is to contact us to determine whether you qualify for expungement under New Jersey statutes. Making this determination is often straightforward. Sometimes, however, a detailed review is needed of all convictions and arrests that you have ever had. Contact us to discuss your particular situation.

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