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.” If the person was fingerprinted, a record of the arrest went to the FBI. Even when not taken into custody 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 respond to most inquiries 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.
Adult criminal records in New Jersey normally cannot be sealed, outside the context of expungements. However, a special process does exist for sealing records relating to adjudications of delinquency, for juveniles. The specific New Jersey statute that treats sealing is N.J.S. 2A:4A-62. This site discusses sealing of juvenile delinquency adjudications a bit more on this page at Question 17.
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 (and sometimes federal statutes) contain provisions under which expungements are not effective. These provisions include the following:
- The person is applying for employment with a law enforcement agency;
- The person is applying for employment with a corrections agency;
- The person is applying for employment in the judicial branch of government;
- The person is seeking diversion of criminal or disorderly persons charges after having had a previous diversion expunged;
- The person is being sentenced for an offense committed after the previous expungement;
- The person is seeking naturalization.
So records stored in these special locations are checked in situations such as these.
There is a second reason expunged records are not destroyed. From time to time it is discovered that an expungement was granted in error. If that discovery is made known to the court within five years from when the expungement was granted, N.J.S. 2C:52-26 requires the court to vacate and reconsider the expungement. If the expungement is vacated, the segregated records then must be unsegregated.
There is still a third reason expunged records are not destroyed. It occasionally happens that different agencies or, sometimes, the very person whose records were expunged, needs actual copies, or certified copies of those records. N.J.S. 2C:52-19 enables that person to ask the court to order that the agency that has those records make them available.
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. Section 1570.3 is in that part of federal regulations that deals with maritime and land transportation security. (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. Additionally, you would be required to divulge the expunged conviction on a merchant mariner credential (MMC) application.)
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, or the expungement order itself, specifies it (almost none do), the recitation is not automatically disqualifying.
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, even under oath. 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 under oath, it makes little sense to do so, since the information will be available anyway to the agency that is asking the question.
When it comes to 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. The specific New Jersey law that says that is N.J.S. 2C:52-27. But N.J.S. 2C:52-27 begins, “Unless otherwise provided by law...”. What does “otherwise provided by law” mean? Does it mean other New Jersey law? Federal statutory law? Federal regulations? Montana regulations? Nobody knows.
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? We offer here some guidelines:
1. Read very carefully the question, and whatever information accompanies the questions to which you are responding. For example, the question or the instructions sometimes explicitly indicate whether how previously expunged matters are to be treated. On other occasions, a careful reading will sometimes reveal that the event in your past is one about which the question is not even inquiring.
2. Call the agency that provided the form and inquire as to their interpretation of the question.
3. Consult with a criminal defense lawyer who practices in the pertinent jurisdiction.
4. Lacking an authoritative answer by following guidelines one, two, and three, proceed with the understanding that, at least in theory, exposure may exist. Until someone is prosecuted and a court decides the issue and issues a published opinion in any given instance, no one knows for sure. The safest response, generally, would be to divulge the information. At the same time, the consequences of divulgence will sometimes outweigh whatever risk may exist from not divulging.
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. This notification is electronic. Thus, when we receive New Jersey State Police acknowledgement that it has processed the expungement order, the FBI will have already been notified.
Upon receiving the notification, federal law 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. Our Your Arrest History page on this site explains how you can verify for yourself that the FBI has, indeed, cleared your history of arrests and convictions.
A couple of notes of caution are in order. 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. Even after 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. FWCanada is a Montreal-based immigration law firm that provides professional legal services on Canadian immigration. That firm also offers a quick assessment tool to determine eligibility for entry.
Q10. I am not a United States Citizen. Is there anything special I need to know about expungements?
A. Indeed there is. 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, just as for non-citizens seeking entry, 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. Specific documents that may be needed can change from time to time, at the whim of naturalization agencies. After expungement, needed records may be obtainable (if at all) only by court order. As a general rule, Expungement Lawyers in New Jersey™ recommend that non-citizens contemplating naturalization defer expungement until the naturalization process has been completed.
Expungement Lawyers in New Jersey™ encourage persons facing such issues to consult with an attorney who specializes in immigration law.
A. The answer to this question is complicated. We'll answer the “why” question right here. The “what can I do about it” question we discuss briefly below, and in more detail on a separate page.
In seeking an answer to the “why” question, one place to look 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, they report the history as before.
You can be confident that the expungement process has been completed when you receive a letter of acknowledgment from New Jersey State Police. If a lawyer obtained the expungement for you, New Jersey State Police sends the acknowledgment 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.
Processing expungement Orders is (to put it charitably) not the highest priority of New Jersey State Police. Question 24, below, discusses this situation in more detail. Long long ago, processing time was typically in the neighborhood of four weeks. Steadily that time crept upwards. For quite a while, those delays increased to over seven months. In late 2019 considerable improvements occurred. In early February 2020, the time gap for Expungement Lawyers in New Jersey™ to receive an acknowledgment letter for a client's expungement Order was in the neighborhood of four and a half months, an increase of weeks from the beginning of December and, again, from the beginning of January.
We update this information monthly. Y'all come back!
For matters where DNA was collected, this lag time can be even greater. Where neither fingerprints nor DNA was ever collected (in other words, New Jersey State Police and the FBI lack records of your arrests), lag time is shorter.
There is a second possible reason your history continues to show up. Expungements are of limited use in some situations. We discuss some of those situations in Questions 5 and 9, above. Question 14, 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. As observed in G.D. v. Bernard Kenny, 205 N.J. 275, 298 (2011), “The expungement statute—enacted at a time when law enforcement and court documents may have been stored in the practical obscurity of a file room—now must coexist in a world where information is subject to rapid and mass dissemination.”
There are also sites that exist for the sole purpose of extorting money from people that have a record. 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. In one hopeful piece of news, California has brought criminal charges against principals of one of the more flagrant violators, mugshots.com. One can only hope that such charges discourage vermin of that ilk.
You also asked what you can do about it. For the situation where the expungement processing was never completed, the first step is to verify that the order for expungement was provided to New Jersey State Police. You can call New Jersey State Police to check on the status of their processing. Their phone number is 609-882-2000. Their expungement unit is at extension 2888.
Persons unwilling to tolerate State Police lethargy can return to the court that granted the expungement order, and ask the court to enforce it. The technical term for this legal process is a “motion to enforce litigant's rights.” The cost of this process, however, is likely to vastly exceed the cost of the original expungement. The judge considering the application can order New Jersey State Police to pay that additional cost. Expungement Lawyers in New Jersey™ successfully utilized this procedure in one egregious case where New Jersey State Police point blank refused to process the expungement Order at all. In that instance, however, the judge lacked sufficient backbone to order New Jersey State Police to pay counsel fees.
No perfect solutions to these other situations exist. Partial solutions are available. We look at these partial solutions elsewhere on this site.
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. 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. Employers 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.
You are perhaps aware that on June 15, 2020, new legislation that will automatically expunge prior marijuana arrests and convictions takes effect. This is both good news and bad news. The good part, of course, is that this will bring much-needed relief to tens of thousands of individuals victimized by our vicious “war on drugs”. The bad news is that expungement processing is already subject to an enormous backlog. Adding those tens of thousands of new expungements to that backlog will slow processing that already is close to standing still.
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. Question 18 on the official New Jersey Application for Permit To Carry a Handgun does likewise.
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. Simple the question, not so simple the answer. This question involves interplay between three diverse areas of law. Those areas are the Full Faith and Credit Clause of the United States Constitution, New Jersey expungement law, and applicable California law (or the law of whatever jurisdiction may be involved). We discuss this interplay elsewhere. However, if all you want is the “the bottom line,” the answer is that, ultimately, only the United States Supreme Court can tell us and, so far, that Court has not done so.
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.
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, potential clients, customers, or lending institutions may look up your record. 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. Prospective dates can look up your record! 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.”
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, kiss your spouse and go to work. You will still have to care for your spouse, your kids (present or future), or your elderly parents. 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 doors previously shut. Continuing our analogy, if you could play the piano before the expungement, your expungement may enable you to join the orchestra. We expunge records; the rest is up to you. Expungement is simply another tool in managing this improbable journey we call life.
So do you really need it? 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. These factors include:
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 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. For starters, unless you already have your complete record of arrests and convictions, we must track it down. We explain how to do that elsewhere on this site.
Wikipedia has a good overview of New Jersey eligibility criteria. You can also obtain a preliminary assessment from an online questionnaire available on this site. However, an authoritative determination is best obtained from a conference with Expungement Lawyers in New Jersey™.
Note: Where records cannot be expunged, other alternatives may exist. Also, laws change. Some changes are for the better, and some for the worse. In the past few years, the New Jersey Legislature has increased expungement eligibility in several ways. If your record still 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:
Nature of Conviction
The full waiting period is six years. The court will consider an application to expunge an eligible 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.
As of June 15, 2020, the waiting time will lower from six years to five years. Further, upon a showing of compelling circumstances, the court will consider an application to expunge an eligible felong confviction after only four years.
|Disorderly Persons Offense (Misdemeanor)||
The full waiting period is five years. However, the court will consider an application to expunge a disorderly persons conviction after three 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
As of June 15, 2020, the court will require you to demonstrate “compelling circumstances” to satisfy the three-year requirement. This would appear to be a higher burden than the “in the public interest” showing that is required before that date.
|Petty Disorderly Persons Offense (Misdemeanor)||
The full waiting period is five years. However, the court will consider an application to expunge a petty disorderly persons conviction after three 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.
As of June 15, 2020, the court will require you to demonstrate “compelling circumstances” to satisfy the three-year requirement. This would appear to be a higher burden than the “in the public interest” showing that is required before that date.
Three years, or period for equivalent offense if committed by an adult, whichever is less.
Note that a separate process exists whereby records of juvenile adjudications that cannot be expunged may be “sealed.” Sealing provides many of the same benefits that are obtained with expungement. The waiting period to seal juvenile delinquency adjudications is two years. For persons seeking entry into the United States Armed Forces, the two-year waiting period is waived.
|Municipal Ordinance||Two years|
Young Drug Offender
(21 years of age or younger when offense was committed)
|Driving While Intoxicated (DWI/DUI)||DWI/DUI arrests and convictions cannot be expunged under New Jersey law. Please see Question 19, below, for more detailed information.|
|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. However, if there was a commitment to a mental health facility, it may be possible to expunge that commitment.|
|Final Restraining Order arising from domestic violence situation (“DVRO”)||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 finish paying 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. Any conviction for a disorderly persons offense or petty disorderly persons offense will reset the clock to zero. 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 offenses 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. Thus unless New Jersey laws change, your DWI conviction remains on your driving record, regardless of how much time has passed.
Some offenses, although in Title 39, are designated disorderly persons offenses, rather than motor vehicle offenses. One such offense relates to the situation of 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. Arrests and convictions of non-motor vehicle matters, even though in Title 39, can be expunged.
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.
Q20. I was charged with a federal crime. What is involved in getting that expunged?
A. In general, federal law is very unforgiving. 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.
H.R. 3884, introduced in the House of Representatives on July 23, 2019, would decriminalize marijuana under federal law, and provide for expungement of previous federal marijuana convictions. H.R. 3884 awaits House consideration.
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 use the word “arguably” above because whether 18 U.S.C. 13-type arrests and convictions 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 18 U.S.C. 13. The final outcome, however, is far from certain.
Emerging limited caselaw holds that federal courts have inherent power to expunge criminal records when necessary to preserve basic legal rights. We discuss this limited federal caselaw separately. The long and the short of it however, 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, although a growing consciousness is emerging of the injustice. Perhaps after enough members of Congress, or their families, are indicted and convicted of federal offenses, real change will come.
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. When did they tell you this? Expungement law in New Jersey has changed over the years, in most instances for the better. Thus, although your record originally could not be expunged, it 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 can be considered for expungement. 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. Sales usually 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. A May 2019 decision of the Supreme Court of New Jersey, State v. Davon M. Johnson, A-58-17, (not an expungement-related case), elaborates upon this distinction.
Combining the changed law with the decision in G.R., many convictions for possession with intent to distribute can now be expunged. Even under the changed law, however, such applications will seldom sail through smoothly. You should be prepared for 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. My record was expunged a few years ago. Unfortunately, I was subsequently arrested again. Can I get a new expungement for those later charges?
A popular myth has been circulating for years that the most expungements a person can ever get is one. That is nonsense. There is no limit to the number of expungements you can apply for and receive in New Jersey. However, when determining whether your newest matter is eligible to be expunged, the court will consider your entire past criminal history, including everything previously expunged. See Question 5, above. For that reason, if you are using our free eligibility review, answer the questions as if you never had any arrests or convictions previously expunged.
Q23. What will it cost for me to seek an expungement?
A. This question, like the question, “How much does a divorce cost?” is a question that is impossible to answer in a vacuum. Before being able to answer the divorce question, details are needed: Will the other party oppose the divorce? Are there child custody issues? Health issues? Disputes over division of assets? And so forth.
So it is with expungements. Cost depends on many factors. These factors include the following:
Are you using a lawyer, or will you do it on your own? (See Question 30.)
Which lawyer are you using?
Does your expungement have special issues that must be addressed? For example, is it an “early pathway” (FAQ 17, above) or other type of “public interest” (FAQ 21, above) case?
Will the prosecutor (or anyone else) object to the expungement application?
If you handle the matter on your own, your cost will typically be about $175.00. These are the out-of-pocket expenses that you will incur. Having a lawyer will raise the cost.
The fee of Expungement Lawyers in New Jersey™ ranges from $685.00 including expenses, to $4,000.00, plus expenses. For the vast majority of expungements, their fee is $885.00. That amount includes their guarantee. So which is it, $685.00, $885.00, $4,000.00, or some number in between? The answer is, “It depends.” Expungement Lawyers in New Jersey™ provide a much more detailed analysis of their fee structure elsewhere.
A. In theory, the expungement process should take about three months. In reality, it usually takes over three times that long. By “the expungement process,” we mean not just how long it takes for the judge to grant the expungement but also, even after that, the time before the arrest and conviction history is actually cleared.
Why so long? The answer is that expungement processing in New Jersey is broken. Five break points exist. All five break points occur after the expungement Petition is signed and forwarded to the court for filing.
Break point one is court processing upon receipt of the Petition. In some counties this processing can be completed in as little as a week or ten days. But other counties can take a month. If the person who processes expungement applications is away for an extended period (some counties have no back-up person for that particular task), the expungement Petitions pile up.
Break point two is with New Jersey State Police. After the court returns the filed Petition, the applicant or their lawyer serves various State agencies. Two of those agencies are the county prosecutor, and New Jersey State Police. N.J.S. 2C:52-24 requires county prosecutors to verify the accuracy of expungement petitions, and inform the court of the results of their review, including whether any statutory disqualifications exist. Prosecutors rely upon New Jersey State Police to verify the petitions' accuracy. New Jersey State Police can perform this verification process within minutes. That notwithstanding, present New Jersey State Police delay on this step is the neighborhood of three to four months.
The third break point is with county prosecutors. Prosecutors are required to advise the court of the State's position on whether the Petitioner's record is one that the law allows to be expunged. As just indicated, prosecutors rely upon New Jersey State Police information to formulate that position. After receiving that information, processing again halts until the prosecutor has reviewed it and then communicated its position to the court. Assessing the length of this break point is difficult because New Jersey State Police never informs applicants when it provides results of its investigation to the county prosecutor. Expungement Lawyers in New Jersey™ suspect that this is seldom a significant delay.
Break point four is with the judiciary. Upon the filing of a petition for expungement, courts set a date for a final hearing. N.J.S. 2C:52-9 requires that that date be within sixty days. Courts usually comply with that requirement. The problem is that when the specified date finally arrives, because of the previous break points, primarily break point two, more often than not the courts will not have been favored with the information that N.J.S. 2C:52-24 requires the prosecutor to provide. Processing stops. Even after receiving the prosecutor's position, judges in some counties consider expungement applications only monthly. If the prosecutor opposes the application and the Petitioner requests a hearing, a delay of two to three months before obtaining that hearing is not uncommon.
Break point five is typically the longest. It again involves New Jersey State Police. After the judge finally signs the expungement order, the petitioner serves a copy of that order upon (among other agencies) New Jersey State Police. New Jersey State Police must then process it. It is this step that causes the petitioner's record to actually be cleared. The problem is that upon receiving court orders granting expungement, New Jersey State Police tosses them onto yet another pile, to be processed when reached. Question 11 on this page provides current figures on how long the expungement orders remain in that pile.
On February 2, 2019, the New Jersey Law Journal published an Op Ed that we submitted. The Op Ed encouraged the New Jersey Attorney General and the Administrative Office of the Courts to involve themselves in this travesty. To date, that encouragement appears to have fallen upon deaf ears. Allan Marain chairs the Expungements Committee of the Association of Criminal Defense Lawyers of New Jersey. That Committee, and ACDL-NJ, are addressing this problem. A rapid solution does not appear to be at hand.
You also asked whether there was any way to speed up the process. Persons whose expungement application processing is stalled do have remedies, in theory. These remedies are financially costly. They may speed up the process. Then again, they may not. We provide much more detail elsewhere for persons interested in alternatives to passively allowing the process to run its course.
A. In the vast majority of cases, no court appearance is needed. Exceptions exist. 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 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. Lawyers who guarantee a particular outcome are either being less than candid with their clients, or do not know what they are 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. Do expect complications if your matter is one that must be filed in Camden County.
While Expungement Lawyers in New Jersey™ do not guarantee a particular outcome, they do guarantee the quality of their work. The specific terms of their guarantee are on a separate page.
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, Question 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. And some prosecutors insist on requirements beyond what is specified in NJ statutes. While this page answers Frequently Asked Questions, it certainly does not cover everything. Having a lawyer means not having to pull your hair out when other questions come along, which they will!
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 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™ will 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. Must I come to Allan Marain's New Brunswick offices in order to use his services?
A. Allan Marain is happy to meet with clients and prospective clients at his New Brunswick offices. However, the primary benefit achieved from those meetings is that the meeting enables the client to better evaluate his or her prospective lawyer. In that regard, however, Allan Marain is a recognized authority on handling expungements throughout New Jersey. He chairs the expungement committee of the Association of Criminal Defense Lawyers of New Jersey. Other New Jersey expungement lawyers consult with him regularly on expungement-related questions. As a Wikipedia editor, Mr. Marain did a complete rewrite of the section relating to expungements in New Jersey. In February 2005, and again in October 2015, the monthly magazine of the New Jersey State Bar Association published articles that he wrote on expungement law, and 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. Between June and November 2018, he gave presentations to the Criminal Law Section, and to the Municipal Court Practice Section of the New Jersey State Bar Association; he presented a New Jersey State Bar Association Webinar; and he coordinated and presented Expungement Hot Topics at the Association of Criminal Defense Lawyers of New Jersey's “Super Saturday”.
Allan Marain represents expungement clients worldwide on an ongoing basis from his New Brunswick location. Judges and prosecutors throughout New Jersey, and New Jersey State Police, regularly process petitions that he submits for his clients. Client communications are routinely handled by telephone, by mail, and by email, either plain text or encrypted. Thus you are not required to come to his New Brunswick offices to use his services.
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). Therefore he cannot 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.
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, when 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 (see Question 11, above), 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, not the law in effect at the time of the arrest. The Legislature can change eligibility rules at any time. Thus convictions eligible for expungement when the waiting period is satisfied can later become ineligible. This actually happens from time to time.
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. To begin with, you can read what former clients have said. Another excellent way is to contact him, or his office. Our Contact Us page mentions different ways you can do that.
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