Expungement, or expunction, is the legal procedure for sealing your criminal record so that it is no longer part of your permanent or public record. Although your record is not entirely erased, it is for all practical purposes no longer an issue in any of your public or private affairs. In other words, the criminal event for which you were convicted no longer exists.
Effect of Expungement
New Jersey has eliminated the designation “felony” in describing certain serious criminal offenses. But crimes of the first, second, third, and fourth degree in New Jersey have the same effect. If you are convicted of any of these types of offenses, there are serious repercussions to your opportunities for employment, housing, travel, education, ability to adopt children, and your applications for credit.
Obtaining someone’s criminal record is a simple procedure. Anytime you apply for a job, credit, a student loan, or to rent an apartment, your criminal record may be scrutinized and you will be placed at a severe disadvantage.
An expungement will erase your criminal offense from public view. Even law enforcement agencies will not be able to find your offense unless you have committed another felony offense and are seeking admission to a diversionary program such as Pre-Trial Intervention (PTI) or are seeking employment in law enforcement, corrections or the judicial system.
On any job application, other than the ones cited above, you may legally and honestly state that you have never been arrested or convicted of a crime or offense.
At any deposition or proceeding where your testimony is given under oath, you can also testify without committing perjury that you have never been arrested or convicted unless it is given in the context of employment for law enforcement, corrections or within the court system.
New Jersey also allows you to apply for a gun permit once your record has been expunged unless the order expressly limits your right to possess firearms.
One important note is that if you are a non-citizen applying for citizenship. Under these circumstances, you will have to divulge your criminal history. A criminal defense attorney is highly recommended to address this issue.
What Criminal Offenses Can Be Expunged
Not all criminal offenses can be expunged or erased from your criminal record. The following offenses cannot be expunged in New Jersey:
- Homicide except death by auto
- Luring or enticing
- Human trafficking
- False swearing
- Aggravated sexual assault
- Aggravated criminal sexual contact
- Sexual contact, if the victim is a minor
- Criminal restraint if the victim is a minor and the offender is not the parent of the victim
- False imprisonment if the victim is a minor and the offender is not the parent of the victim
- Endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child; or causing or permitting a child to engage in a prohibited sexual act; or selling or manufacturing child pornography
- Knowingly promoting the prostitution of the actor’s child
- Producing or possessing chemical weapons, biological agents or nuclear or radiological devices
- Conviction for any crime committed by a person holding any public office, position or employment, elective or appointive, and any conspiracy to commit such a crime, if the crime involved or touched such office position or employment.
Further, the court will look at your criminal history to see if expungement is appropriate in your case even if your offense may qualify. For instance, if you have had prior or subsequent convictions or a previous expungement, the court may not grant an order under these circumstances.
What Other Procedures Are Available
Certificate of Rehabilitation
If a New Jersey court refuses to grant you an expungement order, or it is an offense that does not qualify under pertaining laws, you may still be able to obtain a Certificate of Rehabilitation (COR). This procedure is usually for those individuals who have had a professional license denied because of a conviction.
The effect of a COR is that the licensing authority may not deny you a license solely on the basis of your criminal conviction. The COR states that you have achieved a level of rehabilitation. You can still be denied a professional license, however, if the licensing board determines that issuing you the license would pose an unreasonable risk to property or individuals or that there is a relationship between your previous conviction and the license you are seeking.
You usually have to wait two years after any sentence has been completed or since any similar application was denied before applying for a COR, and you were previously paroled by the board.
A COR does not permit you to apply for a firearms permit. The COR is an alternative to an expungement order, but it is much more limited. Obtaining the advice of a criminal defense lawyer regarding your qualifications for a COR is highly advised.
Another procedure is to obtain a pardon, which would also reinstate your civil rights and has all the same benefits. Only the governor can grant you an “executive pardon.” Unlike an expungement, there is no time limit for the governor to grant a pardon nor are there any offenses for which the governor may not grant a pardon, other than for treason.
Typically, governors grant pardons at the end of their term of office to avoid controversy. Like any court, the governor will consider the facts and circumstances of your offense, whether all sentencing and obligations have been followed or completed, if you have been rehabilitated, your complete criminal history, and any character references.
Pardons are rarely given, however.
Multiple Convictions and Expungements
Generally, if you have had multiple convictions your chances of obtaining an expungement order may be limited.
If the convictions were all entered at the same time, it is possible the court would consider them as one conviction so that an order could not be denied on that basis alone. Expungement orders are within the discretion of the court, however.
Further, there is no limit on how many times you can apply but usually, the court will only permit a person to expunge his/her record once. The court will consider how many expungements have been previously granted as well as your entire criminal record in determining if it should grant your application.
The normal time before you can apply for an expungement order following a conviction for a crime of the first, second, third or fourth degree is 10 years, although you can apply after five years if you can demonstrate that granting the order is in the public interest.
For a disorderly persons offense or petty disorderly persons offense, the waiting time is five years.
Juveniles must also wait five years, unless they are a youthful drug offender or 21 years of age or younger; in which case, they can apply after only one year.
If you complete a court-ordered diversion program, or PTI, or your conviction was a conditional discharge, the waiting period is only six months. If your case was dismissed without a diversionary program or you were acquitted, you can immediately apply for an expungement.
Municipal ordinance violations can be expunged after two years.
The time for all of these runs from the moment you have successfully completed all conditions of your sentence, including payment of all fines, jail sentences, parole or probation, or whatever was last.
Retaining a Criminal Defense Attorney
For you to be successful in obtaining an expungement, you should consider retaining an experienced criminal defense attorney. Having a criminal defense attorney at the earliest stages of your criminal proceeding could eventually result in a conviction for an offense that can be expunged, having your application granted at an earlier time, or without any complications when presented.
Your attorney can present your application in the best possible light, or advise you on what you need to do to demonstrate that you no longer pose any risk to the public.
It is also possible that your case was never formally dismissed if you were placed on probation. Your criminal defense attorney can remedy that situation and ensure that any other technical obstacles are addressed so that your application moves quickly through the court.
Although an expungement does not guarantee you a prosperous future, you will at least be placed on a level playing field with everyone else without the burden of a criminal conviction.