The bill that Gov. Murphy signed is now designated L. 2019, c.269. With minor exceptions, L. 2019, c.269 takes effect on June 15, 2020.
We begin our analysis of L. 2019, c.269 with some cheery news: With one rare exception, records that previously could be expunged can still be expunged. We will mention that exception as we go along. Now for a provision by provision analysis:
Previously, when a record included two or more totally unrelated criminal convictions, none of those convictions could be expunged. Once effective, L. 2019, c.269 will enable the most recent of those convictions to be expunged, assuming that conviction is otherwise eligible. “Otherwise eligible” means that all traditional prerequisites have been satisfied. For example, the waiting time (discussed below) must have passed. “Otherwise eligible” also means that the conviction is one that is eligible for expunction at all. Robbery convictions, for example, could previously never be expunged, and they still cannot. However, if (for example) unrelated convictions for aggravated assault and for burglary exist, then the later of those convictions can be expunged once the waiting perior requirement is met.
This can make the order in which those convictions occurred important. Consider, for example, a person convicted of robbery in 1990, and theft in 2000. Once L. 2019, c.269 takes effect, it will be possible to expunge the theft conviction because it was the most recent conviction and the waiting period is satisfied. The robbery conviction still cannot be expunged because it is not the most recent conviction and, additionally, because robbery is one of the crimes on the list of offenses for which convictions can never be expunged.
Now consider the opposite sequence: A person is convicted of theft in 1990, and robbery in 2000. The robbery conviction still cannot be expunged because robbery is one of the crimes on the list of offenses for which convictions can never be expunged. But the theft conviction cannot be expunged either because when multiple unrelated criminal convictions exist, L. 2019, c.269 enables expunction of only the most recent.
- Convictions for various drug-related crimes will, for expungement purposes, be treated as convictions for disorderly persons offenses. Those crime are: distribution, or possession with intent to distribute, hashish or marijuana, when the quantity of the marijuana is less than five pounds, or the quantify of hashish is less than one pound. This treatment will exist even when the offense occurred within a thousand feet of a public school, or within five hundred feet of a public housing facility, public park, or public building;
- By September 13, 2020, the Administrative Office of the Courts is to develop and maintain a system for the automatic sealing of convictions solely for the offenses just mentioned, without limit as to number. Persons convicted of those offenses before this system is implemented can apply for expungement on or after June 15, 2020, using the traditional method;
- Disorderly persons convictions for possession of marijuana or hashish, or for being under their influence, or for failure to turn over those substances to a law enforcement official, will no longer be considered in calculating whether a person has exceeded the limit of disorderly persons convictions that can be expunged. The same is true for disorderly persons convictions for possession of drug paraphernalia with intent to use, provided that that intent related to a disorderly persons quantity of marijuana or hashish. And these convictions will not be counted against the limit of permissible disorderly persons convictions when seeking expungement of a criminal conviction;
- The waiting period before an eligible criminal conviction can be expunged as a matter of course is lowered from six years to five years. L. 2019, c.269 clarifies, but makes no meaningful change concerning when the expungement eligibility clock starts ticking;
- The waiting period before a criminal conviction can be expunged is lowered from five years to four years when the applicant demonstrates “compelling reasons” for that one-year reduction. Expungement Lawyers in New Jersey™ believe that judges will interpret “compelling reasons” more stringently than the “in the public interest” test previously used to ease expungement requirements;
- In seeking to expunge records relating to third- and fourth degree convictions of distribution, or possession with intent to sell controlled dangerous substances (other than marijuana or hashish), the applicant is similarly required to demonstrate “compelling reasons,” as opposed to “in the public interest.” This is one of the rare instances where L. 2019, c.269 can make obtaining an expungement more difficult than before;
- The number of disorderly persons convictions that can be expunged is increased from four to five. (And remember that, as indicated above, marijuana- and hashish related convictions, and convictions for related paraphernalia, do not count at all towards that limit);
- When seeking expunction of disorderly persons convictions after only three years, the test that the applicant must satisfy is, again, “compelling reasons,” and not the previous “in the public interest” test. However, when expungement is sought for disorderly persons convictions for specified offenses, “compelling reasons” need not be shown. These specified offenses are distribution, or possession with intent to distribute, hashish or marijuana, when the quantity of the marijuana is less than five pounds, or the quantity of hashish is less than one pound. Need to establish “compelling reasons” is not needed even when the offense occurred within a thousand feet of a public school, or within five hundred feet of a public housing facility, public park, or public building;
- Dismissals in municipal court, or in the Superior Court of New Jersey, occurring after the effective date will be automatically expunged. Separate application will not be required. (This does not apply to charges dismissed in conjunction with plea agreements involving conviction of related offenses);
- Persons whose records cannot be expunged solely on account of having exceeded the number of criminal and disorderly persons convictions allowed, may nevertheless seek and obtain expungement of all convictions after passage of ten years from most recent conviction. This is known as the “clean slate” provisions. There is no change in what starts the ten-year clock ticking. However, this “clean slate” expungement is unavailable when the person's record includes a conviction for one or more crimes that, on account of their nature, can never be expunged. Additionally, if, after obtaining a “clean slate” expungement, the person is convicted of one or more of those ineligible crimes, all expungements obtained pursuant to that “clean slate” provision are nullified;
- The State must develop and implement a system that automates the “clean slate” expungements just described. Thus “clean slate” expungements will happen without need for any expungement application to be filed. As with non-automated “clean slate” expungements, the relief will be nullified if the individual is subsequently convicted of an ineligible crime;
- The statement that accompanies an expungement application is to include a provision that the applicant has never changed their name or, if they have, pertinent details;
- The Administrative Office of the Courts is required to develop and maintain a system to e-file expungement applications. This system for development and maintenance is to be completed no later than June 15, 2021. The system is to serve the expungement application upon New Jersey State Police, the New Jersey Attorney General, and the County Prosecutor of all affected counties. Thereafter, New Jersey State Police has sixty days in which to notify the court of any objections. Upon granting the expungement, the court must serve copies of the order upon all relevant law enforcement and criminal justice agencies and, also, upon the person whose records have been expunged;
- Listed above are provisions of expungement law that have changed. It bears mention that under previous law, convictions for first- and second degree distribution of controlled dangerous substances, or possession with intent to sell, could not be expunged. L. 2019, c.269 does not change that. Convictions for those offenses will remain outside the list of crimes that can be expunged;
- All filing fees are eliminated!
Warning: Our language in the highlights indicated above is vastly simplified. The wording of L. 2019, c.269, all twenty-nine single-spaced pages of it, is convoluted. Very convoluted. That wording must be examined closely to determine its precise provisions. Courts will be struggling for years, trying to interpret exactly what is included, and what is not. Expungement Lawyers in New Jersey™ will be at the forefront of those struggles.
For those with the patience, and for those with sufficient curiosity, here is a link to the full text of L. 2019, c.269 in .pdf format, as marked up by the Legislature.
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