Criminal convictions can have severe consequences for you, regardless of whether you are sentenced to prison or not. Besides being branded as a “convict”, those with criminal records may face heavy aftereffects as a result of their conviction, whether it be in obtaining a license to work in a regulated occupation or in applying to a school among other things. Today, many people are subject to background checks, not just from prospective employers, but also in simple capacities such as a little league coach or even a scout leader. It may be difficult to explain to a regulated professional that your conviction was simply a mistake of youth or arose from a simple misunderstanding.  How is one able to avoid this problem and embarrassment resulting from a prior criminal record?

Having your record expunged will erase prior criminal arrests and convictions from your record, meaning that when employers or others do a background check, the result will be “no record found.” On January 10, 2010, the New Jersey Assembly approved an amendment to the current laws on expungements. The new amendment states that a court may grant an expungement under the following conditions:

 
 
GENERAL CONDITIONS NECESSARY FOR EXPUNGEMENT
 

1. Five years has passed since the date of conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is latest; and
    
2. The person receiving the expungement has not since been convicted of any crime, disorderly persons offense, or petty disorderly persons offense; and
    
3. The petitioner for the expungement can persuade the court that the expungement is in the public interest, after giving appropriate consideration to the nature of the offense, the character of the petitioner, and the petitioner’s conduct since the arrest or conviction.

 
 
EXPUNGEMENTS DESPITE PETITIONER FAILING TO PAY FINES

The new amendments also allow a petitioner to have his expungement request granted even if they have been unable to pay fines given to them from the prior offense. In order to do so, the petitioner must show “compelling reasons”, which can include: 1) the amount of the fine, 2) petitioner’s age at the time the offense was committed, 3) petitoner’s inadequate financial status, and 4) any other relevant circumstances involving the petitioner’s ability to pay the fine. The hope is that if compelling financial circumstances exist, that expunging the petitioner’s record will allow them to obtain employment and then pay the fine.

EXPUNGEMENT OF DRUG CONVICTIONS

The recent amendments also address more serious criminal offenses that one may attempt to have expunged. Per the statute, a third or fourth-degree controlled dangerous substance offense may be expunged, but only “where the court finds that expungement is consistent with the public interest, giving due consideration to the nature of the offense and the petitioner’s character and conduct since the conviction.” This amendment is more generous that previous law, which forbid expungement of any conviction related to the distribution of a controlled dangerous substance, unless the conviction was for under 25 grams of marijuana or under five grams of hashish.

The new law also provides, however, that in third and fourth-degree drug offenses, a petition for expungement may be denied by a court if they conclude that the need for availability of the petitioner’s criminal record outweighs the benefit of expunging the persons record and releasing them from the harms normally associated with such a conviction. Previously, these grounds for denial were not allowed unless someone filed an objection to the petition for expungement.

EXPUNGEMENT OF A DISORDERLY PERSONS OFFENSE AND

OTHER MINOR OFFENSES

 
Disorderly persons offenses remain unaffected by the recent amendments, with expungements still requiring a five-year waiting period. Similarly, the two-year waiting period for miscellaneous municipal ordinances remains. Obviously, all charges that have been dismissed or those where the defendant has been acquitted of the charges continue to have no waiting period. In addition, the six-month waiting period from the time of completion of a diversion program or conditional discharge remains in place.

NEW JERSEY OFFENSES NOT SUBJECT TO EXPUNGEMENT

 
The recent amendments also expanded the list of offenses for which an expungement is prohibited. These convictions include human trafficking, causing or permitting a child to engage in a prohibited sexual act, distribution or manufacturing of child pornography, knowingly promoting prostitution of actor’s child, terrorism, and production or possession of chemical weapons, biological agents, or nuclear or radiological devices. Other offenses which were included before the amendments remain exempt from expungement, including criminal homicide (except death by auto), kidnapping, aggravated sexual assault, aggravated criminal sexual contact, criminal restraint, false imprisonment, robbery, arson and related offenses, endangering the welfare of a child by engaging in sexual conduct that would impair or debauch the morals of the child, perjury and related conspiracies, and attempts to commit crimes listed in this section. Additionally, crimes committed by public office holders or employees where the office deals with their position are not eligible to be expunged.

EXPUNGEMENT OF FEDERAL OFFENSES

Generally, a defendant is prohibited from having a federal offense expunged from their record. There are two important exceptions. First, a conviction for a civil violation based on the possession of drugs from personal use in an amount not greater than that specified by the attorney general may be expunged. Second, a misdemeanor conviction for simple possession of drugs is also expungeable if the defendant was under 21 years old at the time the offense was commited.

CONCLUSION

It is of the utmost importance that one who is eligible to have their record expunged of arrests and conviction should do so at the earliest opportunity. In doing so, the official record will be sealed, but previously published newspaper articles or internet posts about the person’s arrest or conviction are not destroyed.

Call our managing partner, Fredrick P. Niemann toll-free at
(855) 376-5291 or e-mail him at fniemann@hnlawfirm.com

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