We begin our analysis of L. 2019, c.269 with some cheerful 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. L. 2019, c.269 now enables 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 period 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. As a result of L. 2019, c.269, you can 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, for expungement purposes, are now treated as convictions for disorderly persons offenses. Those crimes 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 exists 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;
- No waiting periods are now required before convictions for specified crimes involving marijuana and hashish can be expunged. Those specified crimes include simple possession, failure to make lawful disposition of marijuana or hashish, being under the influence of those substances, and simple possession of drug paraphernalia when that paraphernalia was associated with marijuana or hashish. The specified crimes also include distribution of marijuana and hashish, and possession with intent to distribute, when the amount was less than one ounce or, for hashish, less than five grams. This no-wait change applies even when the convictions relate to activities within a designated school zone, public park, and public housing project. Unfortunately, marijuana-related charges amended to other Title 2C offenses like wandering cannot benefit from this provision;
- By September 13, 2020, the Administrative Office of the Courts was to develop and maintain a system for the automatic sealing of convictions solely for the offenses just mentioned, without limit as to number. Covid-19 forced postponement of this feature. It is now well under way, however. Persons whose convictions for these offenses have not yet been expunged can wait for the system to catch up. Alternatively, they can apply 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, are no longer 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. These convictions, too, are no longer 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 was 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 may make obtaining an expungement more difficult than before;
- The number of disorderly persons convictions that can be expunged 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. Indeed, as specified above, those specified offenses require no waiting period at all. Those specified offenses are distribution, or possession with intent to distribute, hashish or marijuana, when the quantity of the marijuana is less than one ounce, or the quantity of hashish is less than five grams. Need to establish “compelling reasons” is not needed even when the offenses 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, acquittals, and discharges without conviction, be they in municipal court, or in the Superior Court of New Jersey, occurring after the effective date are to be automatically expunged. Separate application is not required. The Superior Court is to enter the expungement order for dispositions occurring there. Expungements for dispositions in municipal courts are to be in accordance with procedures developed by the Administrative Director of the Courts. This automatic expungement provision, however, 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, payment of any court-ordered financial assessment, satisfactory completion of probation or parole, or release from incarceration, whichever comes last. This is known as the “clean slate” provision. 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 efile 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 for expungements are eliminated!
Warning: Our language in the highlights indicated above is vastly simplified. The wording of L. 2019, c.269, all eighteen 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 its full text in .pdf format.
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