Can’t get a job in New Jersey with a criminal record? This is a common problem people facing background checks must deal with who have made past mistakes in their lives but are now seeking employment in the state. Thankfully, the law has changed significantly over the past several years making it easier for those with previous arrests and convictions to clear their records.
Expungement law in New Jersey is governed by state statute. Specifically, NJSA 2C:52 and its subsections lay out the rules of who qualifies, what criteria must be met, and what the waiting periods are. It also indicates what objections may be made by the state and prosecutor’s offices and what other limitations exist to expunging your record.
Expunging NJ Indictable or Felony Convictions
You can only expunge one felony conviction in New Jersey. While there is an exception for more than one crime committed during a “spree”, this exception is a narrow one and usually fought aggressively by prosecutors. It does not matter whether you received a concurrent sentence for crimes committed on separate dates. It also does not matter whether a second crime or indictable conviction was committed in a different state.
There used to be a mandatory 10-year waiting period to expunge an indictable (felony) offense in New Jersey. A few years back in 2016, Governor Christie signed legislation that allowed people with certain felony convictions to apply after a five year waiting period through what is known as an “early pathway”. This procedure places the burden on the applicant to demonstrate that an expungement of their felony conviction would be in the public interest. The same law also created a way for successful drug court graduates to have their records cleared as well.
The most recent change which took effect on October 1, 2018 further reduced the waiting period from 10 years down to six years. This is probably the most significant development in recent years regarding expungement eligibility. There is no need under the new 6-year pathway to go through the tedious uphill battle of the 5-year early pathway method. It may make sense for those who have already gone the five years to simply wait until the six year mark to initiate the process.
It is also important to keep in mind that the waiting period clock does not start ticking until you have completed your entire sentence, whether that be jail, prison, probation, or the payment of fines and/or restitution (also some exceptions are available in the event you were financially unable to make those payments).
Some crimes are not eligible for expungement under any circumstances. These include homicide, robbery, arson, and perjury. Individuals seeking expungement of their felony convictions also may not have more than three other disorderly persons convictions.
Disorderly Persons or Misdemeanor Convictions
One significant change was made in the recent 2018 legislation regarding the expungement of disorderly persons convictions. Previously, you could only expunge 3 such convictions (unless you had also been convicted of a felony). You may now include up to 4 disorderly persons convictions in a single expungement petition.
There is a 5-year waiting period to expunge this type of conviction. However, similar to the indictable early pathway method for felonies, you may apply for an early expungement of a disorderly persons offense after three years. Common disorderly persons offenses in New Jersey include criminal mischief, shoplifting and/or theft under $200, possession of less than 50 grams of marijuana or drug paraphernalia, harassment, and disorderly conduct.
Expungement of Dismissed Cases
A very significant change in the 2018 expungement law was to eliminate the so-called “PTI bar” that existed under NJSA 2C:52-14. If you had ever had a criminal charge dismissed following successful completion of the pre-trial intervention program, than any prior or subsequent conviction was not eligible for expungement. The new 2018 expungement law eliminated this disqualifier.
Charges dismissed through the PTI, Conditional Discharge, or Conditional Dismissal programs are still eligible for expungement following a six-month waiting period. Charges that are dismissed in municipal court (not from a diversionary program) are now eligible for expedited expungements where no filing fee applies and the court takes care of most of the process.
In 2017, the state passed legislation creating a veteran’s diversionary program for eligible service members of the armed forcers who suffer from mental health issues. This program is available for petty disorderly persons, disorderly persons, ordinances, and third and fourth degree offenses. In such cases, the individual may be diverted from criminal charge and instead referred to resources tailored to assist the veteran. Exceptions apply however for crimes involving violence or involving victim restitution. Criminal proceedings may be reinitiated however if the veteran fails to abide by the program conditions.
A veteran who successfully completes the Veterans Diversion Program can apply for expungement at any time following the dismissal of their matter.
Challenges that Remain
Some bars to expungement have not been changed by the recent legislation. For example, a previous expungement still bars the expungement of an indictable conviction. Other states have similar rules as well, making it very important to consult with an experienced attorney in the event that you have an out-of-state record. For example, in Florida, you may only expunge one dismissed matter, period! So if you expunged a dismissed case in New Jersey, then went to expunge the Florida matter, you’re stuck with the Florida criminal record. However, by doing the same in the reversed order, it may be possible to expunge both.
There also remains a bar to expungement when the subject matter of the case is still being litigated civilly. Dismissals of charges that resulted from plea bargaining in exchange for guilty pleas and convictions for charges that are not expungeable are also still barred.
Expunged records can also still be accessed and used by the state when determining eligibility for a diversionary program, when you are applying for employment with a law enforcement or judiciary agency, and in other narrow circumstances.
I have assisted countless individuals in clearing their criminal records in New Jersey. I personally handle the entire process. The work is not farmed out or assigned to paralegals, associates, or staffers. The process can take several months, so it is important to apply as early as possible so you don’t miss a valuable work or educational opportunity.