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Will Recent Changes to New Jersey’s Expungement Law Affect You?

 

The law about expunging (clearing) criminal records in New Jersey recently changed. Key changes include:

  • Third and fourth degree drug convictions for sale and distribution may now be expunged.
  • Indictable convictions may be expunged before the 10-year waiting period.
  • Additional serious offenses were added to the list of convictions that cannot be expunged.

Convictions of Third or Fourth Degree CDS Crimes

If you have been convicted of a third or fourth degree drug crime, such as sale or distribution or possession of a controlled dangerous substance (CDS) with intent to sell, a court may now permit you to expunge this type of conviction from your record. To make this decision, a court will look at the following:

The nature of the offense you committed:

  • Was the offense violent or non- violent?
  • Were you a juvenile or an adult?
  • How serious was the offense (what was the degree of the offense)?
  • Did the crime involve a victim?
  • Were your acts intentional (on purpose) or a mistake?
  • Did your acts involve dishonesty?

Your character:

  • Are you remorseful?
  • Have you accepted responsibility for your past conduct?
  • Have you “turned your life around”?
  • What are your plans for the future?

Your conduct since your conviction:

  • Any other convictions (before or after)?
  • What is your education?
  • Are you employed? Seeking employment?
  • Have you attended drug/alcohol rehab?
  • What is your religious membership and activity, if any?
  • What are your family connections?
  • Have you received any letters of support, educational/vocational certificates, awards, or recognitions?

Your Indictable Convictions May Be Expunged Earlier

An indictable offense is a crime usually heard in the Superior Court (sometimes referred to as “high court”) of the county in which the crime occurred. Before the new law, if you had committed an indictable offense, you had to wait 10 years from the time you were convicted, paid a fine, or completed your period of incarceration, probation, or parole before you were permitted to clear your record of this conviction.

The court now has the power to allow you to expunge an indictable conviction, even if less than 10 years have passed since paying the fine, if:

  • The other requirements have been met (10 years since any period of incarceration, probation, or parole) and you have been making steady payments on a payment plan, or
  • The fine is a large one, you were very young at the time of the offense, or your financial situation or any other circumstances make it difficult to pay.

If your case involved a conviction, and a period of incarceration, probation, or parole, you must still wait 10 years from the end of that period.

The court may grant your expungement if at least five years have passed since your conviction, payment of fine, end of period of incarceration, or probation or parole if you meet the following requirements:

  • You have no new convictions
  • Your expungement is in the “public interest,” based on the seriousness of the offense, and your character and conduct since the conviction. (See above.)

If you feel that you might qualify for one of these exceptions, you should bring it to the court’s attention in writing (a signed, sworn letter or certification) when you file your petition for expungement. You should also testify about how you might qualify for these exceptions in court at the time of your hearing, if a hearing is required.

More Non-Expungeable Convictions

The recent changes to the law also added several additional “serious” convictions which may not be expunged at any time, including terrorism, chemical weapons possession, and certain child welfare convictions. The following convictions cannot be expunged:

  • Criminal homicide (except death by auto as specified in N.J.S.A. 2C:11-5)
  • Kidnapping or human trafficking; luring or enticing
  • Aggravated sexual assault, aggravated criminal sexual contact, or criminal sexual contact (if the victim is a minor)
  • Criminal restraint or false imprisonment (if the victim is a minor and the offender is not the parent of the victim)
  • Robbery
  • Arson and related offenses
  • Terrorism
  • Producing or possessing chemical weapons, biological agents, or nuclear or radiological devices
  • Endangering the welfare of a child by engaging in sexual conduct that would impair or debauch the morals of the child
  • Endangering the welfare of a child by photographing or filming a child in a prohibited sex act or simulated sex act, or reproducing or reconstructing such an image
  • Causing or permitting a child to engage in a prohibited sexual act, selling or manufacturing child pornography, or knowingly promoting the prostitution of the actor’s child
  • Perjury and false swearing
  • (First or second degree) sale or distribution of controlled dangerous substances or possession with the intent to sell (exception: 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 five grams or less).
  • Any crime committed by a person holding any public office, or conspiracy or attempt to commit such a crime, if the crime involved or touched such office
  • Conspiracies or attempts to commit such crimes.

Juvenile Delinquency Convictions

The recent amendments may also change how you must calculate the length of time for waiting periods that determine when you may expunge certain juvenile delinquency convictions.

Legal Services of New Jersey's Prisoner Reentry Project

If you have further questions about your eligibility to expunge your record, you may call LSNJ-LAW™, Legal Services of New Jersey’s statewide, toll-free legal hotline, at 1-888-LSNJ-LAW (1-888-576-5529) or 732-572-9100 if you are calling from outside New Jersey. Hotline hours are Monday through Friday, 8 a.m. to 5:30 p.m. If you are not eligible for assistance from Legal Services, the hotline will refer you to other possible resources.

Legal Services of New Jersey’s Prisoner Reentry Project (PREP) provides legal help in civil matters to eligible inmates and those with criminal records to help their successful transition back into society.

This article appeared in the April 2010 edition of Looking Out for Your Legal Rights®.

This information last reviewed 4/15/10.

 

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Low-income New Jerseyans can get free legal help by phone: call our toll-free hotline at 1-888-LSNJ-LAW (1-888-576-5529), Monday through Friday, 8:00 a.m. to 5:30 p.m. Outside of New Jersey, please call 732-572-9100 and ask to be transferred to the hotline.