NOTE: The guide below is designed to be printed, and so it is all on one Web page. You can jump to any section by clicking on one of the underlined links in the Table of Contents.
In most Web browsers, you can also search the entire document for particular information by following these steps:
- In the upper left corner of your screen, click on Edit.
- Click Find, then enter the word or phrase you are looking for.
- Click Find Next.
|
Clearing Your Record: A six-step guide to expunging criminal records in New Jersey
Written and Published by Legal Services of New Jersey
© 2007 Legal Services of New Jersey
All rights reserved. No part of this handbook may be reproduced without permission. For further information, contact:
Legal Services of New Jersey, P.O. Box 1357, Edison, NJ 08818-1357
www.LSNJ.org
E-mail: publications@lsnj.org
Note: This guide will explain the expungement process, but the forms referred to here are available only in the print edition. For ordering information, visit the LSNJ.org publications page, e-mail publications@lsnj.org, or contact Legal Services of New Jersey at 732-572-9100.
Contents
Legal Services Programs
Visit Legal Services of New Jersey’s Web site to find out the address and telephone numbers of your nearest Legal Services program. You may also call Legal Services of New Jersey at 732-572-9100 for that information.
Table of Contents | Top of page
Publications
Most of Legal Services of New Jersey’s publications are available on our Web site along with Spanish-language publications.
Table of Contents | Top of page
LSNJ-LAW™, New Jersey’s Statewide Legal Hotline
Information about LSNJ-LAW is available on LSNJ.org. The hotline provides information, advice, and referral in civil legal matters to eligible low-income residents of New Jersey (criminal cases are referred). You may reach LSNJ-LAW by dialing the toll-free hotline number, 1-888-LSNJ-LAW (1-888-576-5529).
Table of Contents | Top of page
Preface
Legal Services of New Jersey (LSNJ) coordinates the statewide Legal Services system in New Jersey, providing free legal assistance to low-income people in civil matters. Part of Legal Services’ mission is to make people more aware of their legal rights. Awareness allows people to resolve some problems on their own, without the need for lawyers. Informed people also are able to make better use of lawyers when they are needed.
Table of Contents | Top of page
About This Handbook
This handbook provides basic information about how to clear (“expunge”) a record of arrest or conviction. In the limited circumstances where expungement is possible, the process is relatively simple and usually can be managed without the help of a lawyer. Since lawyers are rarely essential for expungement, Legal Services offices just as rarely provide representation in such cases; their scarce resources are needed in other areas. This handbook is provided in place of that representation. It is a guide intended to permit our clients to help themselves.
Table of Contents | Top of page
Please Note—A Word of Caution
The laws mentioned in this handbook were correct at the time of printing, but laws frequently change, and some may be different by the time you read this. You should always check to be sure that any law or principle mentioned in this handbook is current before relying on it. This handbook gives general information about the law. It does not provide specific advice about a particular legal problem that you may have, and it is not a substitute for seeing a lawyer at times when you need one. If you encounter a problem, or are in doubt as to whether you need a lawyer, talk to one.
Table of Contents | Top of page
If You Need a Lawyer
If you need the advice of a lawyer and cannot afford one, you may be eligible for Legal Services. Contact the regional Legal Services program that serves your county. You can also contact the toll-free statewide legal hotline, LSNJ-LAW™, at 1-888-LSNJ-LAW (1-888-576-5529). The hotline provides information, advice, and referral in civil legal matters to eligible low-income residents of New Jersey. This service is provided at no charge to callers who are financially eligible.
Table of Contents | Top of page
Acknowledgments
This edition of Clearing Your Record was revised by Stephanie Setzer, senior attorney at LSNJ. Susan Perger, director of technology and publications at LSNJ, handled the editing, design, layout, and production. Thanks to Deborah Fennelly, LSNJ senior attorney; Tom Makin, director of development; Tricia Simpson-Curtin, editor/writer; and Maribel Whitfield, administrative assistant, for their assistance with this manual.
Table of Contents | Top of page
How to Get Copies of This Handbook
This handbook is available free of charge to Legal Services clients and people with low incomes. Others may get copies from LSNJ for $15.00 each, which includes postage and handling.
Table of Contents | Top of page
Comments or Suggestions
We hope that this handbook will be helpful to you. Please let us know if you have comments or suggestions that we might use in future editions. You can write to us or e-mail us at:
Legal Services of New Jersey
P.O. Box 1357
Edison, NJ 08818-1357
publications@lsnj.org
Melville D. Miller, Jr.
President, Legal Services of New Jersey
Table of Contents | Top of page
Introduction
A record of an arrest or conviction can haunt a person forever. Applications for schools, jobs, and military service often ask about criminal records. Many people can solve this problem because they are eligible for expungement of their New Jersey criminal records.
New Jersey law provides a limited right to expungement. The purpose of New Jersey’s expungement law is to give a person who has either one or very few convictions a “fresh start.” The law also provides for the removal of records of arrests where the arrest did not end in a conviction.
The New Jersey expungement law states in detail who is eligible for an expungement. An eligible person must prepare and file a Petition for Expungement. The Petition for Expungement must be filed in the Superior Court in the county where the arrest or prosecution took place.
A judge then decides whether the person should be granted an Expungement Order. An Expungement Order means that, with some exceptions, the criminal proceedings “never happened.” It also allows the person to fill out school, job, and military applications truthfully without having to reveal that he or she was once arrested or convicted.
Table of Contents | Top of page
Records Required to Be Kept Private
When an expungement is granted, law enforcement agencies are required by law to keep that person’s records private. However, the law does allow expunged records to be used later in certain cases. Should the person ever again become involved in any criminal proceedings, the records can be used. This means that if the person is arrested following expungement, his or her past records will be considered in deciding eligibility for the pretrial intervention program (PTI), bail, or probation. If a crime victim files a claim with the Violent Crimes Compensation Board, the expunged records of the person convicted of the crime can be used in connection with the claim. If the criminal activity or arrest results in the person being incarcerated, the Department of Corrections is allowed to use the records in deciding how to classify and assign the prisoner within an institution. Also, following a conviction and a jail sentence, expunged records can be used in deciding eligibility for parole (early release). Further, the Expungement Order does not bar the retention of material and/or information required for purposes of the Pretrial Intervention Registry pursuant to R.3:28(e), and shall not prohibit the filing of reports required under the Controlled Dangerous Substance Registry Act of 1970. Therefore, your record will not be removed from and can be placed in these registries.
Many people want to go through the expungement process so that they can have clear records when they apply for jobs. However, the law does allow expunged records to be used when a person applies for a job with a law enforcement agency. This includes jobs with state, county, and local corrections departments, prosecutors, courts, and police. This does not mean that those agencies will never employ people with records, but it does mean that those applying must still reveal the existence of an expunged record on a job application.
Agencies that are not associated with law enforcement (such as the Real Estate Commission or the Department of Insurance) that require information about a person’s criminal record prior to expungement cannot be ordered legally to correct their records after an Expungement Order is granted. Such agencies are beyond the reach of expungement orders and may continue to publicize such information.
The expungement procedure is really quite simple. This guide has been prepared to help you if you cannot afford a lawyer and must do your own work. If, on the other hand, you can afford an attorney and decide that you want him or her to take you through this process, the information in this manual may help you in deciding whether or not you are eligible for an expungement. This guide will tell you the exact steps to follow. You can read the law itself, N.J.S.A. 2C:52, in the print edition of this guide.
Table of Contents | Top of page
What is N.J.S.A. 2C:52?
The laws made by the New Jersey Legislature are kept in a set of green books called by their initials, N.J.S.A. (New Jersey Statutes Annotated). “Statute” means a law. These books are numbered and have “titles.” There are many “chapters” in each book, and many “articles” in each chapter. So N.J.S.A. 2C:52-1 means that the law on expungement can be found in N.J.S.A., Title 2C, Chapter 52, Article 1. Note: There are three N.J.S.A. books listed as Title 2C–Code of Criminal Justice. Besides the law on expungement, these also contain most of New Jersey’s laws dealing with arrests, crimes, and punishment.
Table of Contents | Top of page
Step 1: Are You Eligible?
The answer to this basic question depends on the type and number of criminal records you have. (Only New Jersey convictions and arrests may be expunged in New Jersey. If you are interested in expunging a record from another state or a conviction or arrest for a federal offense, you must contact the court system in that state or the federal court system to determine whether you may expunge that record.) The type of records means whether a conviction was for an indictable offense (generally crime punishable by six months of jail time or more), for a disorderly persons offense (generally crime punishable by less than six months of jail time), or for a violation of a municipal ordinance. Note that even where an indictable offense carries a penalty of six months or more in jail time, a judge is allowed at sentencing, in some cases, to give you probation and not send you to jail.
If the conviction or guilty plea occurred in a county Superior Court, then the crime was probably an indictable offense. If, on the other hand, the conviction or guilty plea occurred in a municipal court, it was probably a disorderly persons conviction.
Note: Motor vehicle convictions, which often occur in municipal court, may not be expunged. The reason for this is that they are not considered criminal offenses, but instead are violations of the Motor Vehicle Code. This includes driving under the influence of alcohol or drugs.
Also, convictions for the sale or distribution of a controlled dangerous substance or possession with the intent to sell cannot be expunged except where the crimes relate to marijuana, where the total quantity sold, distributed or possessed with intent to sell was 25 grams or less, or Hashish, where the total quantity sold, distributed or possessed, with intent to sell was 5 grams or less. However, possession with the intent to distribute is expungeable regardless of the type or amount of the drug possessed.
Table of Contents | Top of page
Expunging an Indictable Conviction
To be eligible to expunge a conviction of an indictable offense, you cannot have had any other indictable convictions in any state at any time. Also, you cannot have more than two disorderly persons convictions in any state before or after the conviction for the indictable offense. (However, the court may consider the nature of any subsequent disorderly persons convictions, even if there is only one, and the circumstances surrounding them when considering a petition to expunge. Any subsequent convictions may be a basis for denial of the expungement in certain circumstances.) You must wait at least 10 years from the conviction, payment of fine, completion of probation or parole, or release from jail, whichever is later before applying to expunge the record.
Table of Contents | Top of page
Convictions That Cannot Be Expunged
Certain indictable convictions for crimes occurring after September 1, 1979, cannot be expunged:
- Murder
- Kidnapping
- Aggravated sexual assault
- Robbery
- Arson and related offenses
- Perjury
- False swearing
- Conspiracies or attempts to commit such crimes.
The following indictable convictions committed prior to September 1, 1979, cannot be expunged:
- Murder
- Manslaughter
- Treason
- Anarchy
- Kidnapping
- Rape
- Forcible sodomy
- Arson
- Perjury
- False swearing
- Robbery
- Embracery
- Conspiracies or attempts to commit any of the foregoing; or aiding, assisting, or concealing persons accused of the foregoing crimes.
Finally, any crime committed by a person holding any public office, or conspiracy or attempt to commit such a crime, cannot be expunged if the crime involved or touched such office.
Table of Contents | Top of page
Expunging a Disorderly Persons Conviction
To expunge a disorderly persons conviction, you cannot have any indictable convictions in any state at any time. You cannot have more than two other disorderly persons convictions in any state. The statute allows for up to three disorderly persons convictions to be expunged. In order to expunge a disorderly persons conviction, you must wait five years from the date of conviction, payment of fine, completion of probation or parole, or release from jail, whichever is later.
Note: Whether you are attempting to expunge a disorderly persons offense, a petty disorderly persons offense, or a criminal charge, if you have before or after that conviction been granted dismissal of criminal charges following completion of a supervisory treatment or other diversion program, such as pretrial intervention (PTI), your petition will be denied.
Table of Contents | Top of page
Expunging a Municipal Ordinance Conviction
Municipal courts also hear cases involving violations of municipal ordinances (town laws). If the conviction was for a violation of a municipal ordinance, the sentence could not have been for more than 90 days or a $200 fine. Some examples of actions not allowed by municipal ordinances include littering, obscenity, curfew violations, unleashed pets, and loud radios.
To expunge a conviction for a violation of a municipal ordinance (not including traffic offenses), the requirements are the same as for disorderly persons offenses, except that the waiting period is two years from the date of conviction, payment of fine, satisfactory completion of probation, or release from jail, whichever is later.
Table of Contents | Top of page
Young Drug Offenders Get Special Consideration for Certain Convictions
A person who was 21 or younger when convicted of possessing a controlled dangerous substance, or of selling, distributing, or possessing marijuana or hashish with the intent to sell it, may be able to apply for expungement one year after the conviction if:
- The conviction was for possession of a controlled dangerous substance; or
- The total amount of the marijuana sold, distributed, or possessed with intent to sell was 25 grams or less; or
- The total amount of hashish sold, distributed, or possessed with intent to sell was 5 grams or less.
Table of Contents | Top of page
Expunging an Arrest Record
Most people probably believe that if they were arrested but not convicted (either because they were found not guilty or because the charges were simply dropped), their record remains clean. However, this is not true. In fact, a record of an arrest can hurt as much as one indicating a conviction. It is, therefore, as important to expunge an arrest record as it is to expunge the record of a conviction.
If you were arrested for any offense but not convicted (either found not guilty or the charges were never brought to trial), you are eligible for an expungement at any time. However, if you were found not guilty by reason of insanity, expungement is not permitted at all.
Table of Contents | Top of page
Pre-Trial Intervention, Supervisory Treatment, Conditional Discharge, and Other Diversion Programs
If you have been awarded PTI—pretrial intervention—in your case and your case was subsequently marked dismissed after you completed the PTI, you will still have an arrest record which can be expunged like any other arrest record. See Expunging an Arrest Record, above.
If your case was marked dismissed after you participated in a supervisory treatment program or your case was conditionally discharged pursuant to the New Jersey Controlled Dangerous Substance Act, N.J.S.A. 2C:36A-1, you must wait six months after completion of those programs before filing your petition.
If your case was dismissed after you completed a supervisory treatment, PTI, conditional discharge, or other diversion program, the judge can deny your Petition for Expungement of convictions that were entered subsequent to or prior to the completion of the supervisory treatment, PTI, or diversion program.
Table of Contents | Top of page
Other Requirements Before You Can File a Petition for Expungement
You must not have any charges pending or otherwise still open when you file a Petition for Expungement, and you must certify to that on your Petition. Also, you must certify that you have never been granted an expungement in the state of New Jersey or in any other state. And finally, if your case has been dismissed as a result of completion of a supervisory treatment or other diversion program, you must indicate the nature of the original charge, the court of disposition, and the date of disposition.
Table of Contents | Top of page
Was There a Plea Bargain Involved?
If you had one or more charges dismissed or discharged as the result of a plea bargain agreement in which you agreed to a conviction on other charges, that conviction must be expunged before the arrest record of the dismissed charges can be expunged.
Example: John was charged with harassment and simple assault, both disorderly persons offenses. In court, John agreed to plead guilty to the assault charge in exchange for the harassment charge being dropped. As a result, John was never convicted of harassment. However, for the harassment arrest to be expunged, he would first have to expunge the assault conviction, and could then expunge the record of the arrest on the harassment charge. Thus, the five-year waiting period would apply to both charges.
Table of Contents | Top of page
Step 2: Locate Your Records
In order to prepare your expungement petition and prove your eligibility, you will need to get the following information:
- The date of your arrest.
- The statute(s) and the offense(s) for which you were arrested or convicted. (Note that, if the offenses were reduced from the original charges, these will be different.)
- The original indictment, accusation, state grand jury (SGJ) summons(es), warrant(s), or complaint(s)/docket number(s).
- The date of the conviction or the date the charges were dismissed if you were found not guilty (also called “date of disposition if no conviction resulted” in the statute).
- The specific punishment or other disposition.
You should obtain any of the above information that you are missing.
If you had an attorney when you were arrested and charged, check first to see if he or she has this information in your case file; if so, this can save you quite a bit of time.
If you must locate your records on your own for an indictable/criminal conviction or arrest, contact the Criminal Case Management Office in the county where the arrest or conviction occurred, and take some personal identification, such as a driver’s license or a birth certificate. You might also contact the county prosecutor (see link at the bottom of this page), and explain that you are interested in expunging your records and ask for the information listed above, or ask to look at your file if this is permitted. You may also be able to find information you need on disorderly offenses by contacting the clerk of the municipal court(s) in which you were prosecuted or the police department involved in your arrest(s).
If you cannot get all of the information you need, contact your local police department where you live to make an appointment to have your fingerprints taken on a state applicant fingerprint card for the purpose of “individual review or challenge of record.” Fill out the Request for State Police Record and send it to the address on the form, along with a certified check or money order for $30.00. (The State Police will not accept personal checks.) That office will send you a copy of your “rap sheet,” which should contain the full information. (If you live out of state, you may obtain a fingerprint card from the State Police and have your fingerprints made where you live.)
Note: The State Police will only have a rap sheet if you were fingerprinted when you were arrested. If you were not fingerprinted, and only a complaint was signed against you when you were arrested, you will still have a record of the arrest to expunge at the police department, but you will not have a rap sheet within the Division of State Police, State Bureau of Investigation.
Table of Contents | Top of page
Step 3: Complete the Forms
Note: The forms referred to here are available only in the print edition of this guide. Order forms from our Web site or contact Legal Services of New Jersey at 732-572-9100.
Table of Contents | Top of page
Step 4: File and Serve the Forms
Note: The forms referred to here are available only in the print edition of this guide. For ordering information, visit on our Web site, or contact Legal Services of New Jersey at 732-572-9100.
Table of Contents | Top of page
Step 5: Go to the Hearing
Get to the court on your assigned hearing date about 15 minutes early. (All counties do not require an appearance. If an appearance is not required, you must mail the green return receipt cards to the place you filed your petition, at least one week before the scheduled hearing.) Take the Petition for Expungement, the Expungement Order, and the green return receipt cards to the hearing (unless you previously filed them with the court) and, when you arrive, inform the court clerk that you are there. If any law enforcement officers object to the expungement, they will tell the judge the reason. The judge may ask you some questions and will decide whether to grant or deny you an expungement. If there is no opposition, the judge will, in most cases, grant your expungement.
If no law enforcement officers object to the expungement, the court may grant the order without a hearing. If this happens, you will receive a signed and filed Expungement Order in the mail.
It’s always a good practice to call the court the day before the hearing to confirm that it is still on the court’s calendar.
Table of Contents | Top of page
Step 6: Use the Expungement Order
Immediately after you receive a copy of the Expungement Order signed by the judge and stamped “Filed” by the court, mail one copy of the Expungement Order, by certified mail, return receipt requested, to each of the following:
- The Attorney General
- The Superintendent of State Police, Expungement Unit
- The county prosecutor
- The magistrate or the court clerk of the municipal court if the matter was heard by a municipal court
- The chief of police or other head of the police department where the offense was committed or the arrest was made
- The chief law enforcement officer of any other law enforcement agency of this state that participated in the arrest
- The records division of any institution in which you were incarcerated
- The identification bureau in the county where the arrest was made or where you were incarcerated
- The warden of any institution in which you were incarcerated
- For State Grand Jury cases:
Division of Criminal Justice
Attention: Records and Identification
25 Market Street
P.O. Box 085
Trenton, NJ 08625
- For conditional discharge (CD) and pretrial intervention (PTI), the county probation department should be served.
Keep the mailing receipts and the green cards that are returned to you as proof that the documents were received. You are now entitled by law to answer any question on job applications, school applications, credit applications, military service applications, and the like as if the arrest and/or conviction never occurred. Remember, however, that if any law enforcement officer asks you about previous arrests or convictions, you must tell them that you have an expunged record, and you must identify to them what the record was. Keep a copy of the Expungement Order in a safe place.
Table of Contents | Top of page
Conclusion
As a final reminder, make sure that you have completely followed all of the steps required in this guide. This is very important because even though you may be eligible, if you have missed any of the required steps, your Petition for Expungement may be denied. In that case, you will have to start over.
We have tried to explain as simply as possible the steps to get your records expunged. Please contact us if you have any suggestions on how this guide can be improved.
Table of Contents |
