Friday, June 3, 2016

Updates on Expungement Law Changes

As people may know, expungement is a tool that permits people to erase criminal histories in state and local criminal history records. It is available mostly to those who have been either charged but never convicted, or convicted of relatively low level offenses like shoplifting, simple assault rather than aggravated assault, defiant trespass and the like. One warning for people who have immigration issues, the Federal government does have access to records that may have been blocked by state or local authorities, so you should consult with an immigration attorney to see whether an expunged offense needs to be reported or not.
Under prior law, ten years must have passed from the date of completion for your conviction (not the date of conviction) while only five years needed pass for convictions in municipal court. This means if you were convicted in 2004, finished jail in 2006, and completed parole and paid off all fines in 2007, then you would wait ten years from 2007, not 2004, if this were an indictable offense.
 Now, you need wait five years for indictable offenses (those that occurred in Superior Court) or three years for municipal court convictions. If it was an ordinance violation, then only two years wait is necessary. Another important change is that the municipal courts are to order records expunged without the required filing of an expungement complaint for $75.00 once a person has completed the terms of a conditional discharge or dismissal or has completed the terms of drug court.
If you were arrested but never convicted, and the charge dismissed, then you can apply immediately. Some grave crimes like murder, kidnapping, child exploitation, child pornography, terrorism and some other listed crimes are not subject to expungement, but other indictable offenses can be expunged. This does not prevent the petition from being denied. Motor vehicle charges such as DUI convictions are also not subject to expungement. Similarly, if you were charged for domestic violence, any charges in criminal court or in municipal court may be expunged, however, if a final restraining order was granted as a civil penalty, that is NOT subject to expungement.

In addition to shortening the period of time one has to wait for an expungement, the new law permits a person to file an expungement petition for an indictable offense and any disorderly persons that may have been included in the charges, at the same time. These offenses must have arisen from the same event however.

Where a charge is brought but there is no conviction, municipal courts will be required to notify defendants that the charges can be expunged without opposition AND without filing a fee for the petition for expungement. Even those people who have had arrest records from before the law takes effect will be permitted to file petitions for expungement without the usual $75.00 fee.

Those people sentenced to drug court may have their entire record expunged after completion of a special probation, provided they have not been convicted of some offense that is non-expungeable as defined under NJSA 2C:52-2(b).
Again, expungements are a one time "get out of jail free" card and cannot be used again. If you were convicted of a crime in a different state or under federal law, this would count against your ability to expunge a New Jersey offense. Also, the Federal government can access these expungements, so for instance, if you expunged a crime for shoplifting, you may still need to explain to a hearing officer the circumstances of the crime if you are filing for any change of status with immigration. Similarly, as mentioned, if you apply for a position in law enforcement or corrections you will still need to explain the circumstances behind the expungement as was mentioned above. However, while it may be considered, it should still be considered as evidence of rehabilitation if the request was granted.

Questions regarding those who are considering careers in law enforcement or corrections
For those who are thinking of entering law enforcement or corrections, you are still legally required to inform the potential employer of an arrest or conviction even when it has been expunged.  See NJSA 2C:52-27. One legal case that concerned an applicant for a police position who had been arrested but never convicted led the Appellate Division to remand a denial of employment based upon an arrest in the applicant's background. In re J.B. 386, N.J. Super. 512 (A.D. 2006) held that, while a police applicant was required to report an arrest that did not lead to a conviction when seeking employment, and such an arrest could be considered a "disability" in hiring, as described in the statute under N.J.S.A. 2C:52-27, the Appellate Division found that the Merit System Board failed to treat the expungement as evidence of the applicant's "rehabilitation" as required under N.J.S.A. 11A;4-1. This meant that, while a person who has been convicted of a crime must make a showing that he or she has rehabilitated him or herself when seeking employment, the expungement for an arrest where there was no conviction should be treated as the required evidence of rehabilitation for purposes of employment. In this case, the Appellate Division did mention that the Merit System Board could weigh other factors, but that they could not consider "rehabilitation" in terms of the expunged arrest, since the application for expungement requires the applicant to show that they have rehabilitated themselves.

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