EXPUNGEMENT RESOURCES
New Jersey Expungement Statute
Expungement
In the common law legal system, an expungement proceeding is a type of lawsuit in which a first time offender of a prior criminal conviction seeks that the records of that earlier process be sealed, thereby making the records unavailable through the state or Federal repositories. If successful, the records are said to be "expunged". Black's Law Dictionary defines "expungement of record" as the "Process by which record of criminal conviction is destroyed or sealed from the state or Federal repository."[1] While expungement deals with an underlying criminal record, it is a civil action in which the subject is the petitioner or plaintiff asking a court to declare that the records be expunged.
A very real distinction exists 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. In the United States, an expungement can be granted only by a judge, while a pardon can be granted only by a governor (for state law offenses) or the President (for federal offenses).
Each jurisdiction whose law allows expungement has its own definitions of expungement proceedings. Generally, expungement is the process to "remove from general review" the records pertaining to a case. In many jurisdictions, however, the records may not completely "disappear" and may still be available to law enforcement, to sentencing judges on subsequent offenses, and to corrections facilities to which the individual may be sentenced on subsequent convictions.[3]
New Jersey statutes allow expungement of conviction of many indictable offenses, disorderly persons offenses, municipal ordinances, and juvenile adjudications. The statutes disallow expungement for convictions if the applicant has been convicted of two or more indictable offenses,[20] or four or more disorderly persons offenses.[21] If the applicant has a combination of one criminal conviction and up to two disorderly persons convictions, the criminal conviction can be expunged when the waiting period has elapsed,[20] but the disorderly persons conviction can never be expunged.[21] A person who has had an indictable charge dismissed on account of a diversion cannot thereafter have a criminal or disorderly persons conviction expunged[22]
The waiting period was ten years for indictable convictions, and remains five years for disorderly offenses, and two years for municipal ordinances. In 2010, the waiting period on indictable convictions was lowered to five years. However, applicants who have not waited the full ten years must satisfy the judge that granting the expungement is in the public interest. No such showing need be made once the full ten years has elapsed. Waiting periods begin to run on the date of sentencing, the date all fines are paid, or the completion date of probation or parole, whichever occurs last. Not all offenses are eligible and several new ineligible offenses were added by the 2010 changes, including convictions that took place before the changes.
There is no waiting period for most dismissals and acquittals.[23] However, if the dismissal arose on account of a diversion, there is a six month waiting period.[24] If the acquittal resulted from a finding of insanity or lack of mental capacity, the offense cannot be expunged.[25] Motor vehicle offenses cannot be expunged.[26]
Expungements give the person the legal right to state, even under oath, that the event never occurred. All civil disabilities associated with the conviction are eliminated. However, expunged records must still be recited in certain situations. These situations include applications for employment with a law enforcement agency, applications for employment in the judicial system, and applications for a subsequent expungement.
Not all states honor New Jersey Expungements. White v. Thomas, 660 F.2d 680, 685 (5th Cir., 1981), cert. den., 455 U.S. 1027 (1982), held that each state may interpret its own law to determine what recognition it may give to the expungement order of a sister state.
