Can DNA records and profiles be expunged?
The answer is, "Maybe." Read on!

New Jersey Expungement Law As It Relates to DNA

New Jersey expungement law as it relates to DNA records and profiles is interesting. By way of background, most New Jersey expungement provisions are in Title 2C of New Jersey Statutes. Title 2C is the New Jersey Code of Criminal Justice. Expungement provisions were placed in Title 2C in 1979. Those provisions were based upon expungement statutes first enacted in 1931. At that time, scientists had not yet identified the structure of DNA. By 1979, the structure of DNA was known. However, no procedures were in place in New Jersey's criminal justice system for its collection and use. Thus those portions of the New Jersey Code of Criminal Justice that relate to expungement of records contained no provision for expungement of DNA records or profiles.

Time passed. DNA evolved into an important law enforcement tool. While this was happening, New Jersey amended expungement statutes in its Criminal Code several times. None of these amendments touched upon DNA information. Thus, the law by which expungements under the New Jersey Criminal Code might affect DNA records or profiles became limited to court decisions. But only one New Jersey court decision even touches upon this issue, and that decision does so only peripherally.

The decision is a 2005 opinion of the Superior Court of New Jersey, Appellate Division. Its citation is State of New Jersey v. Jonathan Crawford, 379 N.J. Super. 250 (App. Div., 2005). In that opinion, the court ordered redaction or expungement of DNA records. The reason for the court's decision, however, was the court's finding that the DNA had been illegally collected from the individual in the first place. Thus, amazingly, to this very day, no published New Jersey court decisions shed light on whether DNA information derived from properly collected DNA can be expunged.

It is the official position of New Jersey State Police that expungement of criminal records does not require expungement of DNA. New Jersey State Police contend that expungement of DNA requires a separate court order over and above the court order issued upon routine expungements of records. Expungement Lawyers in New Jersey™ believe that this position is legally unjustified. Nonetheless, expungements of criminal records will leave DNA records intact until a court rules otherwise. Expungement Lawyers in New Jersey™ await the opportunity to challenge that position.

Expungement Lawyers in New Jersey™ have already had occasional success in obtaining judges' signatures on final orders that require expungement of DNA materials. It is likely that many, perhaps all, of these successes occurred only because persons reviewing proposed final orders containing that provision never noticed its presence. On some occasions, prosecutors did notice inclusion of that provision in proposed final orders. They objected. On all of those occasions, clients instructed Expungement Lawyers in New Jersey™ to accede to those objections, and remove those references to DNA.

There are two primary reasons that clients gave up on that issue. The first is that they were not prepared for the delay that would result, were the issue to be litigated. The second is that the clients were not in a position to pay the additional lawyer's fees and expenses that would be involved in such a battle. A related factor may be that many clients were not overly concerned over whether police had this information. Regardless, whether expungement of DNA records and profiles can be included in expungement orders under Title 2C remains an open question.

As mentioned above, neither the New Jersey Code of Criminal Justice nor prior law make reference to expungement of DNA information. However, recent New Jersey Legislation outside of  the New Jersey Code of Criminal Justice does. It is to be found in Title 53 of New Jersey Statutes. Title 53 is that portion of New Jersey statutes that relate to New Jersey State Police.

Title 53 DNA expungement differs from Title 2C expungement in two important ways. Firstly, Title 53 expungement is available only when the DNA was collected in the first place on account of a conviction, juvenile adjudication, or not guilty by reason of insanity, and that outcome (whichever of the three it might be) is later reversed on appeal, and the case thereafter dismissed. Thus, unless the final outcome of the matter is a particular result that is later reversed, the DNA information can never be expunged under a literal reading of the new Title 53 enactment, regardless of how much time passes.

Unavailability of Title 53 expunction of DNA where charges are initially dismissed would appear to utterly defy common sense. Why should persons initially convicted, adjudicated delinquent, or found not guilty by reason of insanity be in a better position than those against whom charges were dismissed in the first place? Expungement Lawyers in New Jersey™ surmise that the way this situation came about was that when Title 53 DNA expunction first became available, New Jersey statutes governing DNA required collection only upon conviction, or adjudication of delinquency. Thereafter, the DNA collection statutes were enlarged to require collection of DNA upon merely being charged. But DNA expungement provisions under Title 53 were never updated to address that situation. We surmise that, put to the test, New Jersey appellate courts would construe Title 53 DNA expunction to include DNA collected where charges were later dismissed. The courts have not yet dealt with that issue.

The second major difference is that, unlike Title 2C expungement, where records are merely “segregated,” expungement under Title 53 calls for DNA records to be “purged.” Purging constitutes much more complete relief in that purging encompasses actual destruction of the records and materials.

The precise statutory citation for the new legislation is N.J.S. 53:1-20.25. The precise administrative code citation that implements that statute is N.J.A.C. 13:81-6.1. The full text of both the statute and the implementing regulation follow.

N.J.S. 53:1-20.25

a. (1) Any person whose DNA record or profile has been included in the State DNA database and whose DNA sample is stored in the State DNA databank may apply for expungement on the grounds that the conviction that resulted in the inclusion of the person's DNA record or profile in the State database or the inclusion of the person's DNA sample in the State databank has been reversed and the case dismissed. The person, either individually or through an attorney, may apply to the court for expungement of the record. A copy of the application for expungement shall be served on the prosecutor for the county in which the conviction was obtained not less than 20 days prior to the date of the hearing on the application. A certified copy of the order reversing and dismissing the conviction shall be attached to an order expunging the DNA record or profile insofar as its inclusion rests upon that conviction.

(2) Any juvenile adjudicated delinquent whose DNA record or profile has been included in the State DNA database and whose DNA sample is stored in the State DNA databank may apply for expungement on the grounds that the adjudication that resulted in the inclusion of the juvenile's DNA record or profile in the State database or the inclusion of the juvenile's DNA sample in the State databank has been reversed and the case dismissed. The juvenile adjudicated delinquent, either individually or through an attorney, may apply to the court for expungement of the record. A copy of the application for expungement shall be served on the prosecutor for the county in which the conviction was obtained not less than 20 days prior to the date of the hearing on the application. A certified copy of the order reversing and dismissing the adjudication shall be attached to an order expunging the DNA record or profile insofar as its inclusion rests upon that conviction.

(3) Any person found not guilty by reason of insanity, or adjudicated not delinquent by reason of insanity, whose DNA record or profile has been included in the State DNA database and whose DNA sample is stored in the State DNA databank may apply for expungement on the grounds that the judgment that resulted in the inclusion of the person's DNA record or profile in the State database or the inclusion of the person's DNA sample in the State databank has been reversed and the case dismissed. The person, either individually or through an attorney, may apply to the court for expungement of the record. A copy of the application of expungement shall be served on the prosecutor for the county in which the judgment was obtained not less than 20 days prior to the date of the hearing on the application. A certified copy of the order reversing and dismissing the judgment shall be attached to an order expunging the DNA record or profile insofar as its inclusion rests upon that conviction.

b. Upon receipt of an order of expungement and unless otherwise provided, the division shall purge the DNA record and all other identifiable information from the State database and the DNA sample stored in the State databank covered by the order. If the entry in the database reflects more than one conviction or adjudication, that entry shall not be expunged unless and until the person or the juvenile adjudicated delinquent has obtained an order of expungement for each conviction or adjudication on the grounds contained in subsection a. of this section. If one of the bases for inclusion in the DNA database was other than conviction or adjudication, that entry shall not be subject to expungement.

N.J.A.C. 13:81-6.1

(a) A person whose DNA profile has been included in the DNA database and whose DNA sample is stored in the DNA databank may apply to the Superior Court of New Jersey, Law Division for expungement of the DNA profile and the DNA sample on the grounds that the conviction, adjudication, or finding of not guilty by reason of insanity that resulted in the inclusion of the person's DNA profile in the database or the inclusion of the person's DNA sample in the databank has been reversed and the case dismissed. A certified copy of the order shall be attached to the application. A copy of the application for expungement shall be served on the prosecutor for the county in which the adjudication or conviction was entered and on the Division of Criminal Justice not less than 20 days prior to the date of the hearing on the application.

(b) Upon receipt, review and verification by the CCU of a certified court order directing expungement and unless otherwise provided, the CODIS manager shall:

1. Delete all DNA profiles, records, and identifiable information in the CODIS Database computer pertaining to the person with regard to the reversed and dismissed conviction;

2. Notify and direct any contract laboratory used to delete any record associated with the SBI number and e-mail a confirmatory notice to the CODIS manager;

3. Destroy all samples obtained from the individual that pertained to the reversed and dismissed charge; remove any identifier from the sample; and cut the sample and the identifier into pieces and dispose of it as medical waste;

4. Send a letter to the Director of the Office of Forensic Sciences or his or her designee who shall forward it to the NDIS Custodian thus notifying NDIS of the expungement;

5. Maintain a permanent file of all requests to expunge DNA records and the disposition of those requests; and

6. Send a letter of expungement confirmation to the requesting agency.

(c) The CCU shall delete from its electronic records all identifiable information that pertains to the offender. The DNA databank specimen submission form pertaining to the offender shall be removed from the secured general files of the CCU and shall be placed in a separate secured file that has been designated as an expunged file. The CCU shall ensure that such forms or the information contained therein is not released for any reason and is not utilized or referred to for any purpose. In response to requests for information or records of the offender whose DNA sample was expunged, the CCU shall reply that there is no record information.

(d) If the entry in the database reflects more than one conviction, adjudication, or finding of not guilty by reason of insanity, that entry shall not be expunged unless and until the person has obtained an order of expungement for each conviction, adjudication of guilt, or finding of not guilty by reason of insanity on the grounds contained in (a) above. If any one of the bases for inclusion in the database was other than adjudication of guilt or not guilty by reason of insanity, that entry shall not be subject to expungement.

Adopted by R.2007 d.336, effective December 3, 2007.

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Law Offices of Allan MarainNJ and New Jersey arrested can expunge criminal records and convictions for crimes and dismissed.
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