Straight Answers to Thirty-four Frequently Asked Questions of Expungement Lawyers in New Jersey™
Benefits and Limitations
Expungement Lawyers in New Jersey™
Q1. What is an expungement?
A. When a person is arrested, or charged with any non-traffic offense, that person gets a criminal record. At a minimum, there is a record of an arrest. If the person is later convicted, then the person has a record of both an arrest and a conviction. These records include complaints, warrants, commitments, DNA, processing records, fingerprints, photographs, index cards, rap sheets, and judicial dockets records. They can be on paper. More ominously, they can be on computer.
When a person is taken into custody, it is obvious that he has been arrested. However, many of the records just discussed exist even when the person is just given a summons, and never taken into custody. Some offenses are of such a trivial nature that the person pays a fine through the mail, and that is the end of it. Or is it?
These events are still reported as “arrests.” And, taken into custody or not, records of these events follow the person over the years. Prospective employers can access these records. Insurance companies, landlords, adoption agencies, and prospective creditors can too. To expunge a criminal record means to go through a court process. Upon successful completion of that process, you get a court order signed by a judge. The court order states that the offense “...shall be deemed not to have occurred.” Persons doing a background check through New Jersey State Police or through the FBI will receive a response that there is “no record.” Additionally, after you expunge your criminal record, you are legally entitled to state that the arrest or conviction never happened.
Q2. Is an expungement the same as a pardon?
A. No. To expunge a criminal record and to get a pardon are two completely separate things. 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. An expungement can be granted only by a judge. A pardon for a New Jersey offense can be granted only by the governor. A pardon for a federal offense can be granted only by the President.
While we're on the subject, there is yet an additional process available under some circumstances. This process is called obtaining a “Certificate of Rehabilitation.” This Certificate of Rehabilitation, when available, removes statutory bars to obtaining a professional license. It may also convince prospective private employers (or landlords, or adoption agencies, etc.) to disregard the criminal record that otherwise would have caused refusal. This Certificate of Rehabilitation may occasionally be available where the applicant would otherwise not qualify for expungement. On most occasions, Expungement Lawyers in New Jersey™ recommends expungement, when available. However, when circumstances will allow only the Certificate of Rehabilitation, Expungement Lawyers in New Jersey™ are able to assist in that process also.
Q3. Expungement of records, expunction of records, sealing of records--what's the difference?
A. There is no difference between expungement of records and expunction of records. Those are just different terms for the same thing. Sealing refers to the situation where the court makes records unavailable to the public. Legally, the event in question still happened. But nobody (supposedly) can find out about it. Thus, all expunged records are sealed, but not all sealed records are expunged.
A. No. Expunged records are segregated, not destroyed. That is, they are moved to special locations for expunged records. When ordinary record searchs are made, records kept in these special locations are not accessed. Thus the results of this ordinary search will be a return of “No Record Information.”
The procedure that New Jersey courts follow once an expungement has been granted is detailed in a document called an “Administrative Directive.” The Administrative Office of the Courts revises these Administrative Directives from time to time. The current document that specifies how the courts in New Jersey process expungement orders is Administrative Directive 02-12. It was issued on April 16, 2012.
Q5. Why are expunged records not destroyed?
A. The New Jersey expungement statutes contain provisions under which expungements are not effective. These provisions include situations where a person is applying for employment with a law enforcement agency, or corrections. Or where a person is applying for employment in the judicial branch of government. Or where a person is seeking a conditional discharge after having had a dismissal from a previous conditional discharge expunged. Or on sentencing for convictions for new arrests after the previous expungement. So records stored in these special locations are consulted in those situations.
A. There are many. Employment applications to be a nurse need not recite expunged matters. The same is true for employment applications to be a teacher, real estate broker, stock broker, banker, hospital worker, computer programmer, taxi driver, barber, or anything else, so long as it is not in law enforcement, corrections, or the court system. Applications to obtain professional licenses (other than to practice law) similarly need not recite court proceedings that have been expunged. After the court expunges the record, it no longer exists for purposes of an application to adopt a child. If you apply for admission to a school or a professional organization, the expungement is effective: You need not recite matters that have been expunged. If your arrest resulted in a conviction and that conviction is later expunged, Section 1570.3 of Title 49 of the Code of Federal Regulations allows you to tell the Transportation Security Administration (TSA) that you have not been convicted. (49 CFR 1570.3 does not specify whether you would still have to disclose the arrest on an employment application, or in a job interview.)
Q7. Does this mean that I can never get a job in law enforcement, or in the court system, or that I can never become a lawyer?
A. It does not mean that at all. It just means that if you do pursue any of those activities, you would be required to specify prior arrests on the application when asked, even though they have been expunged. You can state that they have been expunged, but you still need to recite them. The government agency will then consider your entire application, including the expunged information, and approve or reject your application on that basis. Unless a statute specifies it (and almost none do), the recitation is not automatically disqualifying.
Q8. If I am placed under oath, am I committing perjury if I deny the existence of expunged information?
A. It depends. If you are under oath in a New Jersey setting and not relating to a federal matter, you can legally deny the matter. Note, however, that the information is still available to New Jersey officials in certain instances. We list those instances in Question 5, above. So although you can legally deny the matter in those circumstances, and even under oath, it makes little sense to do so, since the information will be available anyway to the agency that is asking the question.
Concerning federal forms and proceedings, and matters involving other States, the law is less clear. New Jersey law says you can treat the matter as if it never happened. But some federal forms tell you that failure to reveal the matter when asked under oath is a federal crime. See, for example, the certification on page 121 of the National Security Positions Employment Questionnaire form . So does denying the existence of this matter that now supposedly never happened expose you to criminal prosecution? The answer is probably yes. Until someone is prosecuted and a court decides the issue and issues a published opinion, no one knows for sure. The safe response, generally, therefore, would be to divulge the information. See also Questions 6, 9, 13, and 14 on this page.
Q9. Will a New Jersey expungement clear my FBI criminal history?
A. Yes. As part of its processing, New Jersey State police notifies the FBI when records of an arrest or a conviction have been expunged. Federal law then requires the FBI to adjust its records accordingly. This requirement is spelled out in the Code of Federal Regulations. More particularly, 28 C.F.R. Section 16.34 specifies, “Upon the receipt of an official communication directly from the agency which contributed the original information, the FBI CJIS Division will make any changes necessary in accordance with the information supplied by that agency.” The FBI will then report that no record exists concerning the New Jersey arrest that was expunged.
We should add a couple of notes of caution at this point. First, one of the consequences of 9-11 was that federal agencies increased sharing of information. One must now assume, therefore, that information provided originally to the FBI will have been shared with agencies such as Homeland Security, Immigration and Customs Enforcement (ICE), and maybe even the CIA. The federal regulation that requires the FBI to adjust its records says nothing concerning those other agencies. It could be a mistake to assume that those other agencies will comply with a New Jersey court order expunging arrest or conviction records.
The second note concerns travel outside the United States. The information sharing just mentioned includes dissemination of arrest and conviction records to other countries. Canada, in particular, has very stringent regulations about who can enter the country. An article that we uploaded discusses some of these regulations. Persons whose criminal history precludes their legally entering Canada can seek an exemption. Regardless of whether a matter has been expunged, persons considering traveling outside the United States are strongly advised to speak with an immigration lawyer or embassy official for the destination country.
Q10. I am not a United States Citizen. Is there anything special I need to know about expungements?
A. Yes. As just mentioned, important federal exceptions to the effectiveness of expungement orders are the Department of Homeland Security, including Immigration and Customs Enforcement (ICE). Non-citizens applying for entry into the United States, or seeking naturalization, will likely need to divulge arrests and convictions, even after they have been expunged.
Additional considerations exist for non-citizens who may apply for citizenship in the future. For example, persons seeking citizenship must divulge information concerning arrests and convictions even after those arrests and convictions have been expunged. In that regard, they may need to furnish particular documents relating to those past matters. Those documents may need to be certified by the court, or by the agency that generated them. Expungement will make such documents exceedingly difficult and expensive to obtain. Thus, non-citizens contemplating expungement may need to take extra steps before obtaining their final expungement Order.
Expungement Lawyers in New Jersey™ strongly advise that persons facing such issues consult with an attorney who specializes in immigration law.
Q11. My record was expunged. Yet my criminal history is still showing up when I apply for a job. Why? And what can I do about it?
A. In seeking an answer to the “why” question, one place to start would be to see whether the expungement process was fully completed. After the judge signs the expungement order, still more remains to be done. The court provides a copy of the signed Order to the person who filed the original expungement petition. That person is usually a lawyer, but sometimes it is a person acting without a lawyer (“pro se”). Regardless, that person must then serve a copy of that signed expungement Order upon all courts, law enforcement agencies, supervising authorities (parole or probation), and places of confinement that have records of the arrest or conviction. Until those agencies have received and processed the expungement Order and segregated the records, they will continue to report the conviction or arrest, not knowing that it has been expunged.
You can be confident that the expungement process has been completed when you receive a letter of acknowledgement from New Jersey State Police. If a lawyer obtained the expungement for you, New Jersey State Police sends the acknowledgement letter to the lawyer. Ask your lawyer for a copy. You are entitled to it. Until you receive that letter, you should assume that your record is still being reported by government agencies.
Providing acknowledgement letters is not the highest priority of New Jersey State Police. Expungement Lawyers in New Jersey™ has never received that acknowledgement in less than two weeks. In the past it has taken as much as three months. As of early August, 2014, typical waiting time is about eleven to twelve weeks.
A second possible reason your history continues to show up is that expungements are of limited use in some situations. We discussed some of those situations in Questions Five and Nine, above. Question Fourteen, below, provides additional information in that regard.
Still more reasons exist why potential employers might see your expunged record. Consider the Internet. It is everywhere. Once information arrives there, it becomes difficult or impossible to get it removed. In addition to what is on the internet, consumer reporting agencies all over the world collect arrest information and criminal history from court records. These companies store that information on their own computers. In the normal course of things, neither the courts nor anyone else will inform these companies that your arrest or conviction record has been expunged. The courts do not even keep track of who has seen your records. Therefore the information that those companies previously stored can still be on those computers. Newspapers have reported on this situation from time to time. One such article was in The Salt Lake Tribune on June 5, 2011.
As mentioned in these newspaper articles, no complete solution to this problem exists. There are, however, partial solutions. The first partial solution is one that usually occurs automatically with the passage of time. This is a solution that is mandated by the federal Fair Credit Reporting Act. That Act requires that consumer reporting agencies follow reasonable procedures to assure maximum possible accuracy. Companies that provide consumer reports for a fee are “consumer reporting agencies.” “Consumer reports” include reports that are furnished for the purpose of evaluating suitability for employment.
If you need immediate clearance of expunged records, emergency procedures are available. You can formally tell consumer reporting agencies that your record was expunged. Reputable companies will remove arrest and conviction information upon receipt of such notification. Companies that refuse to do so expose themselves to a civil lawsuit, and criminal penalties.
The Fair Credit Reporting Act provides an additional important protection for job seekers. Consumer reporting agencies that compile and report public record information for employment purposes are required to do one of two things. The Agencies must either notify the consumer when it reports adverse information, including the name and address of the recipient; or it must maintain strict procedures designed to insure that the adverse information is still contained in a current public record. This protection applies whenever matters of public record are likely to adversely affect a consumer's ability to obtain employment. The Act imposes considerable civil liability upon violators of its requirements. Liability is imposed when the violation is willful, and even when it is just negligent.
Finally, be aware that sites exist for the sole purpose of extorting money from persons previously arrested. As reported in The New York Times, these sites post mug shots and identification, supposedly as a “public service.” For a fee, those sites will remove that information.
Persons having expunged records that are still carried by these sites have several options. They can pay the extortion. They can notify the sites that the information was expunged and ask for record removal. They can sue the publishers of those sites under various legal theories. Or they can ignore it. All of these options carry disadvantages. Expungements Lawyers in New Jersey™ can discuss this at greater length with persons who are affected.
Q12. I was arrested for possessing a small amount of marijuana, and a pipe. I went to court and got a conditional discharge. After I successfully completed my probation, the court dismissed both of the charges. Will an expungement be of any benefit to me?
A. Yes. Since your charges were dismissed, you have no record of a conviction. However the original arrest is still on your record. In New Jersey, arrest information never goes away automatically (FAQ 1). And its mere existence can put you at a competitive disadvantage. Your arrest record can cause prospective employers to hire someone else equally (or less) qualified, instead of you. Or they can even fire you after you've been hired. Discrimination against persons with an arrest record may be unfair, but it nevertheless exists. In order for your marijuana charge to not show up, you must expunge your arrest record.
Q13. My convictions were expunged. Now I want to apply for a gun permit. Should I divulge those expunged matters on my New Jersey firearms application?
A. No. In fact, questions on the official New Jersey Firearms Identification Card Application Form relating to past criminal convictions or arrests specifically exclude records that have been expunged or sealed. Your New Jersey expungement will also remove any federal firearms disability that arose on account of the New Jersey conviction. This follows from Title 18, Section 921(a)(20) of the United States Code. That provision states: "Any conviction which has been expunged...shall not be considered a conviction for purposes of this chapter, unless such...expungement...expressly provides that the person may not ship, transport, possess, or receive firearms." Note, however, that if you previously had a gun permit that was revoked, or if you previously applied for and were denied a gun permit, you would have to divulge that fact and explain the reasons even though those reasons related to matters that were later expunged.
As mentioned above, your New Jersey expungement will “clear” you to obtain your gun permit both federally and for New Jersey. Unfortunately, we are not able to advise you of the effect of your New Jersey expungement for gun permits in states other than New Jersey. In that regard, please see answers to Questions 9, 14, and 32 on this page.
Q14. I was able to expunge my criminal record in New Jersey. Now I am seeking licensure in California to be a teacher. California tells me that I must divulge all past offenses, even if they have been expunged. Must I divulge it?
A. No authoritative answer to this question exists. Article IV, Section 1, of the United States Constitution requires states to afford “full faith and credit” to decisions of courts of other states. This Constitutional requirement is implemented by Title 28, Section 1738, of the United States Code. Expungement of a New Jersey offense is a decision of a New Jersey court. Thus it would seem that other states should recognize the expungement and give it the same effect that it would have in New Jersey.
Unfortunately, it does not always work that way in practice. Public agencies in several states instruct applicants for professional licenses to divulge prior criminal matters, even when those matters were expunged in the state in which they arose. These requirements are specified in the statutes of those other states. Thus, for example, Florida Statutes 943.0585 and 943.059 require applicants to disclose prior expunged matters. Similarly, Section 44009 of the California Education Code considers prior criminal convictions regardless of the subsequent history of those offenses. The California Commission on Teacher Credentialing specifically requires information concerning past convictions, even after those convictions are expunged. A page on the site of the Medical Board of California discusses this issue in the context of applications for licensure in the medical field.
The United States Supreme Court has never ruled on whether such practices violate the Full Faith and Credit Clause. One United States Court of Appeals did. The Fifth Circuit held that such practices are legal. White v. Thomas, 660 F.2d 680, 685 (5th Cir., 1981), cert. den., 455 U.S. 1027 (1982), held that Texas requiring information concerning an out-of-state matter that was expunged does not violate Full Faith and Credit because Texas is not required to conform its practices to the law of other states. The issue has been resolved only in the Fifth Circuit.
Expungement Lawyers in New Jersey™ disagree with the White v. Thomas decision. However, barring a better reasoned decision in any particular location, the safer course might be to divulge the prior criminal history, even though expunged in New Jersey. Issues such as these should be presented to lawyers licensed to practice in the specific jurisdiction in question.
Q15. Do I really need to expunge my record?
A. The answer to this question depends on the value that you place on an expungement. A record of a criminal conviction, or even an arrest, can keep people from obtaining a much desired job. We discuss that situation in Question 12, above. “Collateral consequences” are many.
At the same time, understand that an expungement will not magically solve all day to day problems. You will still have to get up each morning, take a shower, and go to work. You will still have to care for your spouse, your kids (present or future), or your elderly parents. And, to borrow from an old joke, if you could not play the piano before the expungement, you will still be unable to play it after. What it will do, however, is help you to reach your potential. It will open some doors previously closed. Continuing our analogy, if you could play the piano before the expungement, your expungement may enable you to join the orchestra. Expungement is thus another tool in managing this fantastic thing we call life.
If you are self-employed, you perhaps have no need for an expungement. But even if you are self-employed, need sometimes arises. For example, you may want to be considered for government contracts. Or you may want to rent an apartment, or coach a local sports team, or adopt a child. Remember, too, the psychological benefit. The weight of the past is lifted from your shoulders if your record is saddled with this burr. As former client M.D. put it, "It's a new beginning."
So do you really need it? The bottom line is that this is a question that only you can answer.
A. No. Whether someone can expunge his record is determined by the law of the state where the event occurred. Thus a person who qualifies for an expungement in Nebraska or Arizona may not qualify in New Jersey, since the law in each state is different. In New Jersey, the determination of who qualifies is quite complicated. Relevant factors are set forth in NJ expungement statutes. They include the following:
|Is what the person wants to expunge just an arrest, or was there also a conviction?|
|If there was a conviction, what was the person convicted of? Some convictions can never be expunged. These include convictions for murder, robbery, arson, kidnapping, perjury, and sexual assault.|
|How many times has the person been convicted?|
|When was the person convicted?|
|What was the person's sentence?|
|Were all fines paid? When?|
|Has the person ever previously had an expungement?|
|Are any charges against the person still open?|
This “Eligibility” section (right here through Question 22) provides much information concerning eligibility. An expungement eligibility assessment is also available using our online questionnaire. This assessment often identifies possible trouble areas. However, it is only preliminary. A more accurate assessment sometimes requires reviewing results of a criminal history search.
Eligibility determinations are easiest when you have been charged with an offense exactly one time in your entire life, and you know what the charge was, the court in which it was ultimately resolved, the exact outcome of the charge, and the date. When not all of these facts are readily available, or when you have been charged on more than one occasion, things start to get more involved. The situation may require a detailed review of all convictions and arrests that you have ever had. Expungement Lawyers in New Jersey™ can provide that review. In order for us to do that, you sometimes need to do some work on your own first.
New Jersey residents seeking their New Jersey history can do so in various ways. One way is to make arrangements with some creatures that call themselves MorphoTrust USA. Their telephone number is 877-503-5981. They are arrogant. They insist on dealing only with you. They will not work with your lawyer. So you pay MorphoTrust USA $67.20 for the privilege of allowing them to belittle and humiliate you.
To begin, you obtain a form that MorphoTrust USA calls its Universal Fingerprint Form (IDG_NJAPP_110113). MorphoTrust USA mandates use of this form. The form has instructions. These instructions are detailed and onerous. You complete boxes 9 through 26 on the form. After completing and printing their form, you arrange for MorphoTrust USA to fingerprint you. To do that, you copy information from IDG_NJAPP_110113 onto a different form. This is the MorphoTrust USA online appointment request form. You then follow the instructions on that form. You must bring your IDG_NJAPP_110113 form with you when you keep your appointment to be fingerprinted. Your history comes to you in the mail, usually within a couple of weeks after your fingerprinting.
If you reside outside New Jersey, but your entire court history was in New Jersey, an alternate way is available for you to obtain your New Jersey history. You call the Criminal Information Unit (CIU) of the New Jersey State Police. Its telephone number is 609-882-2000, extension 2918. You tell them that you are out of state, but would like to get your New Jersey criminal history. CIU will mail you a package containing forms and instructions. Histories obtained through this method will be processed by the same MorphoTrust USA characters mentioned above. The instructions are extremely detailed. They must be followed to the letter.
Whether you live in New Jersey or not, you can bypass MorphoTrust USA. Instead, you obtain your arrest and conviction history from the FBI. If your arrest history includes events outside New Jersey, an FBI search is usually a much better way to obtain your history. The FBI web site contains step-by-step instructions to obtain your criminal history from them. Like the MorphoTrust USA search, obtaining the FBI search is something that you can do on your own. Unlike the MorphoTrust USA search, however, the FBI does allow attorneys to obtain this information on behalf of clients. To do it on your own, you start by getting the FBI form. Either way, getting your FBI history will require an inked (or scanned) fingerprint card.
Criminal history searches through the FBI have one significant drawback: The FBI's response time is longer than the response time of MorphoTrust USA. As indicated above, the MorphoTrust USA response time is typically two weeks or less. The FBI site says its response time can be as much as five to six weeks. However, this response time can be drastically shortened, for an extra fee. The way to shorten it is to use one of the FBI approved “channelers.” This method is discussed as “Option 2” on the FBI link provided above.
After jumping through all these hoops, the information that you obtain may still be incomplete. (We never told you it would be simple.) For example, the procedures described above sometimes omit juvenile records, and records of events in municipal courts. Municipal court history is most likely to be omitted when fingerprinting was not done during processing. Where juvenile records exist, pertinent information can be obtained from the courts directly. Municipal court records can usually be obtained from the municipal courts themselves. Even though information is omitted from State Police or FBI records, prosecutors will nonetheless object to the expungement when they find the information elsewhere.
An authoritative determination of eligibility often requires a conference with Expungement Lawyers in New Jersey™. However, you can obtain a preliminary assessment from an online questionnaire available on this site.
Note: Laws change. Some changes are for the better, and some for the worse. For example, S-2764 is a bill introduced on March 10, 2011, in the New Jersey Senate. This bill, if passed, would open the door for expungement in many situations where that door is now firmly shut. If your record cannot be expunged now, check again from time to time. You never know!
Q17. How long must I wait before I can expunge my conviction?
A. All convictions require a waiting time before the court will let you expunge your record. Dismissals also will require a waiting time if the dismissal resulted from successful completion of a diversion. These times are as follows:
|Crime (Felony)||Ordinarily, ten years. However, the court will consider an application to expunge a felony conviction after five years. (The court refers to this as “early pathway.”) For early pathway, the court will require you to show that granting the expungement is in the public interest.|
|Disorderly Persons Offense (Misdemeanor)||Five years|
|Petty Disorderly Persons Offense (Misdemeanor)||Five years|
|Juvenile Adjudication||Five years, or period for equivalent offense if committed by an adult, whichever is less|
|Municipal Ordinance||Two years|
Young Drug Offender
(21 years of age or younger when offense was committed)
|Dismissal following successful completion of diversion (PTI, Conditional Discharge, or Conditional Dismissal)||Six months|
|Not guilty by reason of insanity, or not guilty for lack of mental capacity||These dispositions cannot be expunged|
|Final Restraining Order arising from domestic violence situation||Records relating to restraining orders cannot be expunged because restraining orders are civil in nature, not criminal. Information about restraining orders is available elsewhere.|
|Dismissal, Other||No waiting time at all. Call us!|
Q18. Do these times run from the date of the offense?
A. No. The times run from the date that the judge imposes sentence, the date you pay all of your fines, the date you successfully complete parole or probation, or the date you complete your jail or prison sentence, whichever comes last. A law that took effect on March 13, 2010, changed this requirement somewhat. Under this new law, the court may relax the waiting period relating to payment of fines if the court finds that fines were paid substantially on the schedule specified by the sentencing judge, or if we satisfy the court that compelling circumstances prevented you from paying your fines.
More information concerning how payment of fines affects waiting period is available elsewhere on this site.
Q19. I was found guilty of driving while intoxicated. Your chart does not specify the waiting time before I can get that matter expunged.
A. New Jersey classifies driving while intoxicated as a motor vehicle offense. Motor vehicle defenses are defined in Title 39 of New Jersey Statutes. One of the New Jersey expungement statutes specifies that motor vehicle offenses defined in Title 39 cannot be expunged. For that reason, unless New Jersey laws change, your DWI conviction remains on your driving record, regardless of how much time has passed.
Note that inability to expunge DWI offenses can create difficulties beyond driving consequences. One example of such difficulties relates to exclusion from foreign countries. Canada, in particular, routinely denies entry for persons convicted of driving while intoxicated. Question 9, above, discusses this situation at greater length.
Finally, some offenses, although in Title 39, are designated disorderly persons offenses. One example relates to a parent or guardian who, driving while intoxicated, had a minor as a passenger. The statutory reference for that offense is N.J.S. 39:4-50.15b. It should be possible to expunge an offense falling in that category . However, Expungement Lawyers in New Jersey™ is not aware of any decisions where the court has ruled on that issue.
Q20. I was charged with a federal crime. What is involved in getting that expunged?
A. Federal law is very unforgiving. A 2011 non-precedential opinion of the United States Court of Appeals for the Third Circuit held that expungement of records relating to arrests for federal crimes was limited to situations specified in statutes passed by Congress. That decision is Carter v. United States, 431 Fed. Appx. 104 (3rd Cir., 2011). But federal provisions that provide for expunction of arrests and convictions are extremely limited.
Provision exists for persons who obtained a “Special Probation” under Title 18, Section 3607 of the United States Code. That section relates to persons charged with simple possession of controlled dangerous substances. It is available only to persons under twenty-one years of age at the time of the offense. And, incredibly, this exception is available only to persons found guilty of the offense. If a person was arrested, went to trial, and acquitted; or if the charge was dismissed for insufficient evidence, 18 U.S.C. 3607 makes no provision for expungement of that arrest.
A different situation exists in which expungement for federal arrests and convictions arguably can be expunged. That situation is where a person is charged in a federal complaint with violating a state statute. This can happen when the alleged offense occurs within New Jersey, but on federal property. Title 18, Section 13, of the United States Code authorizes charges in that situation. An example of this might be simple possession of marijuana occurring in Sandy Hook National Park. We say that such arrests and convictions “arguably” can be expunged because whether offenses of that nature can actually be expunged, to our knowledge, has never been decided by any federal court. The Ninth Circuit held in United States v. Bosser, 866 F.2d 315 (9th Cir., 1989), that state rehabilitative statutes that permit dispositions not resulting in a permanent conviction can be used by a federal court sentencing a defendant under this Act. Note, however, that what was involved in Bosser was sentencing, not expungement. Also, decisions of the Ninth Circuit are often contrary to decisions of other Circuits. When the United States Supreme Court reviews decisions of the Ninth Circuit, those reviews often result in reversal. Thus Bosser provides a cogent argument as to why federal courts should allow expungement of offenses prosecuted under Title 18, Section 13. The final outcome, however, is far from certain.
Some limited caselaw holds that federal courts have inherent power to expunge criminal records when necessary to preserve basic legal rights. One such case is United States v. McMains, 540 F.2d 387 (8th Cir., 1976). Even McMains held, however, that “The power is a narrow one, usually exercised in cases of illegal prosecution or acquittals and is not to be routinely used.” Chastain v. Kelley, 167 U.S.App.D.C. 11, 510 F.2d 1232, 1235 (D.C. Cir., 1975), holds that the power to order expungement is an instance of the general power of the federal courts to fashion appropriate remedies to protect important legal rights. And the Chastain opinion cites other cases of similar holding. The Third Circuit opinion that speaks to this issue is the Carter decision, mentioned above. The United States Supreme Court has never treated this issue directly. It has, however, upheld expunction of non-criminal records of administrative agencies. Cases so holding are collected in Chastain. The long and the short of it is that, except for the “Special Probation” described above, expunction of federal criminal records remains a very open question.
The absence of more meaningful provision to expunge federal arrests and court history is a national disgrace. Some members of Congress, from time to time, have attempted to address this problem in “Second Chance Acts”. To date, all such efforts have failed. Perhaps after enough members of Congress, or their families, are indicted and convicted of federal offenses, the situation will change.
Q21. When I was nineteen, I pleaded guilty to possession of cocaine with intent to distribute. Two lawyers have told me that that offense can never be expunged. Are they right?
A. They were possibly right when you spoke to them, but expungement law in New Jersey changed on March 13, 2010. Thus, although the crime to which you pleaded guilty originally could not be expunged, you may now be eligible. If your offense was possession with intent to sell, and if it was of the first or second degree, then records of that offense still cannot be expunged. But if your crime was of the third or fourth degree, your records become eligible to be expunged. Before the court will allow you to expunge those records, however, the judge must make a finding that the expungement you seek is in the public interest. Compared with “plain vanilla” expungement processing, this is a substantial undertaking, And you must still, of course, meet all other requirements. We discuss “in the public interest” expungements in much more detail elsewhere on this site.
Even if your crime was of the first or second degree, you may still be eligible, provided that your intent was to distribute without selling. This distinction is subtle, but important. All sales involve a distribution, but not all distributions involve a sale. The Superior Court of New Jersey, Appellate Division, addressed this subtlety on August 3, 2007, in a case entitled Expungement Application of G.R. What the G.R. court said is that convictions for possession with intent to distribute can be expunged provided that the distribution was to be gratuitous. If the intent to distribute was to be in connection with a sale, then expungement must be denied.
Combining the new law with the decision in G.R., many convictions for possession with intent to distribute can now be expunged. Even under the new law, however, such applications will seldom sail through smoothly. You will need to anticipate an objection from the prosecutor. An in-court hearing will then be needed. At this in-court hearing, the judge will consider the entire circumstances of the conviction. Where distribution or intent to distribute was involved, you may still have to convince the judge that expungement is the public interest. The final decision to grant or deny the expungement application will turn on that determination.
It is also important to note that the losing party after such a hearing has the right to appeal the judge's decision. The bottom line is that if you are seeking to have this offense expunged, expect delays, possible need for a court appearance, and a process that will likely be quite costly with no guaranteed outcome.
Q22. I received an expungement a few years ago. Unfortunately, I was subsequently arrested again. Can I get a new expungement for those later charges?
A. Maybe. There is no limit to the number of times that a person can apply for and receive an expungement. However, when determining whether a person is eligible to have his record expunged, the court looks at the person's entire past criminal history, including matters that were previously expunged. Thus, to determine eligibility on the newest matters, the person's complete criminal history must be considered, as if the person had never previously received an expungement.
Q23. What will it cost for me to seek an expungement?
A. Cost depends on many factors. These factors include the following:
|Are you using a lawyer, or will you do it on your own? (see FAQ 30.)|
|Which lawyer are you using?|
|Does your expungement present special issues that must be addressed? For example, is it an “early pathway” (FAQ 17) or other type of “public interest” (FAQ 21) case?|
|Will anyone object to the expungement application?|
If you handle the matter on your own, your cost will typically be about $150.00. These are the out-of-pocket expenses that you will incur. Having a lawyer will raise the cost considerably.
Where no special issues are involved, Expungement Lawyers in New Jersey™ charge an all-inclusive $1,500.00. For “early pathway” and other “public interest” cases, Expungement Lawyers in New Jersey™ charge $4,000.00. We discuss payment arrangements and stages of processing for these public interest expungements on another page on this site. This $4,000.00 amount, or some in-between figure, may also apply to the situation where one or more persons or agencies object to the granting of the expungement. It depends on the nature of the objection. Please see FAQ 28 in that regard.
Unlike the no-special-issues situation, the $4,000.00 charge on these more complex expungements is not all-inclusive. Payment for special out-of-pocket items such as court transcripts and, possibly, investigation expenses, will typically add to the cost. Note also that these costs are for expungement of criminal records. Costs for expungement of mental health records are discussed on a different page on this site. And these cost figures apply only to work on the initial application. In the rare case where an appeal is needed, additional costs apply.
Over and over, former clients tell Expungement Lawyers in New Jersey™ that their fees are reasonable. At the same time, Expungement Lawyers in New Jersey™ understand that many people seeking expungement of records still cannot afford those fees. For those individuals, Expungement Lawyers in New Jersey™ are happy to provide the names of other expungement law firms whose fees are less. Expungement Lawyers in New Jersey™ feel strongly that persons seeking expungement of criminal records should not be held back on account of financial circumstances.
A. Until recently, the time to obtain the order of expungement after the necessary papers are filed with the court was about ten to twelve weeks. Expungements in Essex County always took a couple of months longer. Unfortunately, Expungement Lawyers in New Jersey™ are recently seeing a new trend. New Jersey State Police, which must review all expungement applications before courts will consider them, are taking longer and longer to complete that review. Court budgets tighten. Staffing is being reduced. Personnel who leave by attrition are sometimes not replaced. And various courts give expungement applications lower priority than other matters. Thus the time to obtain an expungement will seldom be less than three months, and may be more.
The processing must run its course. A lawyer may tell you he can obtain expungement completion in just a month or two. Hungry lawyers may make such promises to get you to take out your checkbook. In fact, no lawyer can guarantee successful outcome of the case at all, let alone by a particular date. (See Question 28, below). When a lawyer does promise expungement by a particular date, tell him to put his promise in writing. Have in the writing provision for full refund of the fee if he fails to obtain the expungement by the promised date. That will almost certainly cause the lawyer to sudddenly display less confidence about when (or even if) the expungement will be granted.
Also note that after obtaining the expungement, still more time is needed before the expunged record is actually “cleared” from police files, court files, and files of consumer reporting agencies. We discuss that process in greater detail in Question 11, above.
A. In the vast majority of cases, no court appearance is needed. There are exceptions. If someone objects to the application, an appearance might be required. And, as explained earlier, if your offense involved possession of a controlled dangerous substance with intent to distribute, a court appearance on your part may sometimes make a difference.
Q26. Even though the statute says that I qualify for an expungement, won’t the victim, or the cop who arrested me, object anyway?
A. The expungement statutes are very specific concerning who must be notified when a person applies for an expungement. Neither the victim nor the arresting officer are included amongst the persons who receive notice of the expungement application. Thus when a person satisfies all of the requirements of the statutes, it is rare that anyone will object.
Q27. I was convicted of prostitution. A few years after I was arrested I got married. I never told my husband about my past. Will he find out about it if I apply for an expungement?
A. The court mails all notices concerning an expungement application to the lawyer, rather than to the person whose record is to be expunged. Expungement Lawyers in New Jersey™ are discreet. If you alert us to your sensitive household situation, we will hold mail that we normally send to clients, and communicate with you only by email, or by whatever other method you specify. For those having the necessary software, confidentiality of email communications can be increased still further through PGP encryption. Here is a link for our PGP public key .
Q28. I was charged with possessing a small amount of marijuana a few years ago. I received a conditional discharge, paid fines, and successfully completed my probation. That is the only time I was ever charged with an offense. Will you guarantee that I can have my record expunged?
A. Any lawyer who guarantees a particular outcome is either being less than candid with his client, or does not know what he is doing. In the situation you describe, the process should run smoothly. But always the possibility of something unexpected exists. These possibilities include the following:
|You were charged with another offense that you've forgotten about.|
|Someone else who was arrested used your name and your social security number.|
|You never actually completed all of your payments to the court.|
|You did complete your payments, but the court did not properly record it.|
|You did successfully complete your probation, but the court never formally dismissed the complaint.|
|Someone objects to the Petition, even though the objection has no legal or factual basis.|
That said, Expungement Lawyers in New Jersey™ would add that while complications such as these sometimes happen, they are the exception and not the rule. Your own past court history and payment of fines is something that you likely are on top of. Those other situations happen but, fortunately, rarely. Most potential expungement problems are weeded out by careful review of the situation before filing the application with the court.
Q29. I would like to expunge my New Jersey criminal record. How do I begin?
A. We recommend these steps:
Decide whether you are going to seek assistance from a lawyer, or whether you will represent yourself. The next question on this page, FAQ 30, lists some factors to consider in making that decision.
If you decide to seek legal assistance, select a law firm.
Contact the firm that you choose. Make an office appointment, if convenient. Otherwise make arrangements to provide the firm with relevant information, and for payment. Cost information can be found elsewhere on this page. Contact information for Expungement Lawyers in New Jersey™ is on the Contact Us page on this site.
A. Perhaps not. Some people obtain an expungement without the assistance of a lawyer. Proceeding without a lawyer has two advantages. First, of course, is the savings in lawyers' fees. The second advantage is that some people just enjoy the satisfaction and the challenge of doing it themselves. But it is, indeed, a challenge. The process is complicated. So is NJ expungement law. Much paper work is involved. There is a big learning curve. Prosecutors and judges demand extremely strict adherence to the technical requirements contained in the statutes. Prosecutors in some counties insist on requirements beyond what is specified in NJ statutes.
The expungement statutes themselves were poorly written. They contain ambiguities and, in some cases, outright inconsistencies. Expungement Lawyers in New Jersey™ are aware of those difficulties, and are able to counsel its clients accordingly, and help steer applicants through these rocky shoals.
If you qualify, mistakes in what you submit will seldom be fatal. However, mistakes can cause great delay and frustration. Expungement Lawyers in New Jersey™ make the process faster, easier, less prone to mistakes. Nevertheless, if you want to explore obtaining the expungement on your own, the New Jersey Administrative Office of the Courts provides forms with instructions.
Q31. My arrest occurred in South Jersey. Allan Marain’s offices are in New Brunswick. Wouldn’t I do better with a lawyer from South Jersey?
A. Allan Marain is a recognized authority on handling expungements throughout New Jersey. As a Wikipedia editor, he did a complete rewrite of the section relating to expungements in New Jersey. The monthly magazine of the New Jersey State Bar Association published his article on handling expungement cases. He is a Senior Instructor on the faculty of Garden State Continuing Legal Education Services. He has presented its "Expungements under New Jersey Law" seminars to New Jersey attorneys throughout the State.
Allan Marain represents expungement clients worldwide on an ongoing basis from his New Brunswick location. Judges and prosecutors throughout New Jersey regularly process petitions that he submits for his clients. Client communications are routinely handled by telephone, by mail, and by email. Thus office location is seldom a serious factor. If your application is one to which objections are likely, the importance of having a lawyer who is experienced and knowledgeable in this area outweighs the inconvenience that his New Brunswick location may cause.
Q32. The arrest that I want expunged happened in New York. Can Allan Marain get that arrest expunged?
A. Allan Marain is licensed to practice only in New Jersey, plus before various federal courts and administrative agencies. But, generally, federal arrests and convictions cannot be expunged. (See Question 20 on this page.) Therefore he is not able to represent persons seeking expungement of matters from other states. For information concerning expungement in other jurisdictions, you may want to take a look at Wikipedia or other web sources.
Q33. Should I contact Expungement Lawyers in New Jersey™ now even though my waiting period still has a while to go?
A. Yes. The sooner you begin, the better. In order for Expungement Lawyers in New Jersey™ to prepare the necessary expungement application, they often must obtain pertinent information from the police, from the court, or from other sources. Obtaining this information requires time, sometimes months. While your waiting period is running, Expungement Lawyers in New Jersey™ can gainfully use this time to collect all necessary information. In that way, as soon as your waiting period is over, Expungement Lawyers in New Jersey™ will be ready to hit the ground running.
There are important reasons why Expungement Lawyers in New Jersey™ recommend proceeding as quickly as possible. For one thing, you may unexpectedly need to change jobs. It takes months to expunge a record. Even when things go smoothly. You may not be able to wait that long. Secondly, if some day you are charged with a new offense, you will be unable to expunge any records at all until your new charges are ultimately resolved. Further, the outcome of new charges can disqualify you from obtaining expungement of convictions that previously could have been expunged. Finally, eligibility to expunge records is measured against the law in effect when the expungement application is filed, and not against the law in effect at the time of the arrest. The Legislature can change eligibility rules at any time. Thus convictions that become eligible for expungement when the waiting period is satisfied can later become ineligible. This has happened on a number of occasions.
As an added incentive, if you retain Expungement Lawyers in New Jersey™ before your waiting period is over, you are protected from fee increases that may occur.
Q34. Where can I find more information about Expungements Lawyers in New Jersey™?
A. We thought you’d never ask. Here are four ways:
- Read what former clients have said;
- Click Here;
- Send Allan Marain an email; and
- Call him. His toll free number is 877-XPUNG-NJ (877-978-6465).