CLEAR YOUR RECORD OF A PAST ARREST OR CRIMINAL CONVICTION WITH AN EXPUNGEMENT
Finding a good job can be a challenge for anyone. It can be all the harder if you have a criminal arrest or conviction on your record, even one from the distant past. But a brush with the law earlier in life doesn’t have to be a permanent blot on your reputation. A past conviction or arrest for many types of crimes can be erased from the public record through a process known as expungement. Legislatures in many states have enacted expungement statutes in recognition of the fact that the stigma of a past offense doesn’t just hurt those who are trying to make their way though life with a criminal offense on their record. The community at large also pays a price when law-abiding citizens remain unemployed or trapped in low-level jobs, or are deterred from renting property, applying for college or trade school or seeking a professional license out of a fear that their criminal past will scuttle their chances.
WHAT IS AN EXPUNGEMENT?
Expunged records are not erased completely. Instead, they will be separated from the part of your file that will be subject to disclosure in response to most inquiries. An expungement can isolate not only convictions but also the tell-tale evidence of lesser encounters with law enforcement agencies. New Jersey’s expungement statute is one of only a handful in the nation that goes so far as to specifically declare that once you obtain an expungement, you are legally entitled to talk to anyone who asks about your prior criminal record as if the expunged offense never happened. There are some exceptions to that rule. If you are seeking a job in the court system or with a law enforcement agency, for example, or are applying for law school, you must disclose all past criminal offenses, including any that have been expunged. But when applying for most other jobs, or answering questions about your past in applications or interviews with professional licensing boards, insurance companies, adoption agencies, landlords, creditors or most other organizations or agencies that may conduct a criminal background check, you are authorized by New Jersey law to say, without fear of penalty or prosecution for perjury, that you have never been arrested or convicted, if your prior offenses have successfully been expunged from your record. New Jersey’s expungement law also imposes an obligation on police departments, courts and other public entities to remove any of your expunged offenses from their publicly accessible files. So they, too, are legally required to tell any prospective employers, creditors, landlords or most others who might inquire, that they have “no record” of any arrests or convictions under your name.
WHO MAY GET AN EXPUNGEMENT?
Expungement are generally available to those who have committed no more than one felony crime or two misdemeanor offenses in the past but have lived as law abiding citizens in the years since. Certain crimes cannot be expunged from the record. Those include committing or attempting to commit murder, rape, sex crimes involving children, robbery, perjury, arson, driving under the influence, and offenses by public officials. One who has been convicted of aiding another in the commission of any of those crimes is likewise barred from expunging that offense from their record. Most offenses involving the sale of drugs are also ineligible for expungement. The most notable exception is possession of marijuana with intent to sell, if the quantity was 25 grams or less. Those whose drug offenses occurred prior to the age of 21 also may be able to get an expungement through special procedures established for youthful offenders. The law imposes a waiting period between completion of the sentence for an expungeable offense and the time when the offender may commence the expungement process. The waiting period is 10 years for felonies, five years for misdemeanors, and five years for juvenile adjudications, unless a juvenile offense was equivalent to an adult crime that could not be expunged. Those with drug offenses committed when they were under 21 in many cases can have their record expunged in two years. Records of an offense that was dismissed following successful completion of a diversion program can be erased from the record in as little as six months after the underlying case was closed. The waiting periods begin to run on the day that the judge imposed sentence or the petitioner finished paying off any fines or completed a sentence of incarceration, probation or parole, whichever comes last. As the extensive list of records that can be encompassed by an expungement order suggests, the procedure could benefit many who may not think they need it, for example, those have been arrested in a case in which charges were ultimately dropped, or those who were picked up on a minor drug possession offense in a case that resulted in a conditional discharge after completion of a diversion program. An expungement would prevent prior indiscretions of that sort from showing up years later in a criminal background check of police records. While offenders with multiple convictions on their record are ineligible for an expungement, there is no limit in the law on how many expungement one may obtain. However, the judge who hears the petition for an expungement is required to take a number of factors into account in determining whether a petitioner is deserving of relief, including whether previous offense have been expunged. The legislature has directed courts to pay especially close attention to whether successive offenses indicate that the applicant hasn’t truly moved away from the bad habits that have led to encounters with the criminal justice system in the past. As the New Jersey’s expungement law declares, “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.”
HOW TO GET AN EXPUNGEMENT
The process begins with a petition filed in the Superior Court of the county where the arrest or conviction occurred. Next, the law states that a copy of the petition must be served on all of the courts and police agencies involved in the arrest as well as the county prosecutor and state attorney general. A hearing is generally held within 60 days of the filing of the petition. If there is no objection filed and you meet the eligibility requirements, and if the particular county court’s local practice does not require it, you many not need to make a personal appearance. The court can issue an expungement order based on the paperwork. Once an expungement petition is granted by a judge, the court will notify the New Jersey State Police, who will generally remove any evidence of the offense from the public record within 30 days and will notify other agencies that maintain criminal records, including the Federal Bureau of Investigation, to remove the offense from their files, as well. You don’t necessarily need a lawyer to obtain an expungement, particularly if you are certain that only a single arrest or conviction is on your record, the matter was fully put to rest years earlier, and the offense clearly qualifies as an expungeable offense. However, if your prior record falls into any of the numerous gray areas in the state’s complicated expungement statute, or if you need an to have your record cleared quickly and on the first try, you are probably better off with legal representation. A lawyer familiar with the expungement process will know the nuances of the law and the variations in local court rules and will know how to prepare the extensive paperwork needed to present and implement a petition. If everything is in order, an expungement can be completed and your record cleared in just a few months.
WHAT AN EXPUNGEMENT CAN’T DO
Since an expungement will not completely erase a criminal arrest or conviction from your record, it is not the equivalent of a pardon. The records will remain accessible for limited purposes, and will be disclosed in special situations such as in response to an inquiry from a prospective employer in the judicial branch or with a law enforcement agency. The New Jersey law also may not be able to prevent disclosure of the information to other states or to federal agencies that don’t necessarily have to honor the New Jersey statutory provision declaring that a expunged criminal offense can be “deemed not to have occurred.” Thus, a non-citizen seeking naturalization with the Department of Homeland Security’s Immigration and Customs Enforcement unit will most likely need to disclose all arrests and convictions, even those that have been expunged, pursuant to a ruling of the Board of Immigration Appeals that the federal definition of “conviction” means that an alien remains convicted notwithstanding a subsequent state action to expunge the conviction. Whether New Jersey’s expungement law applies in other states is an open that has yet to be resolved by the U.S. Supreme Court. In the meantime, there is a split in opinion on the question. Some authorities assert that a state’s expungement statute should be honored in other states under the clause in the U.S. Constitution requiring states to afford “full faith and credit” to decisions of courts of other states. Other authorities, on the other hand, say the state with the expungement statute doesn’t have right to force other states to conform to its practices by forgoing access to records that have been expunged. State agencies is some states including Florida, California and Texas expressly require that all records of past offenses, whether expunged or not, must be divulged for certain purposes, such as applying for a teaching position in California. An expungement also will not prevent private companies that create their own databases of records from public court files from keeping a record of your arrest or conviction and divulging it to employers or others who use those private companies for background checks. A lawyer may be able to provide assistance in contacting those companies and asking them to update their databases by removing offenses that have been expunged from their databases.
COULD YOU BENEFIT FROM AN EXPUNGEMENT?
If you feel that you might benefit from an expungement, please contact for more information at (609) 585-2443 x116 to schedule an appointment.