Bill Would Automatically Expunge Criminal Record of those who Successfully Complete New Jersey’s Drug Court Program

December 2, 2013

Pending legislation, Bill A-2829, would create a mechanism for the automatic expungement of criminal records to certain individuals that have completed a sentence to a term of special probation, otherwise known as the drug court program.  Bill A-2829 was introduced on May 10, 2012.  On May 14, 2012, the bill was reported and referred to the Assembly Appropriations Committee, where it has remained since.

A criminal record can make it difficult to obtain employment, rent an apartment, and obtain financial aid.  By admitting these individuals into New Jersey’s drug court program, the criminal justice system presumes that drug court participants will be better served by treatment and rehabilitation, rather than incarceration.  Proponents of the bill, therefore, argue that it furthers that purpose by giving individuals that successfully complete the program the chance to start over, without a criminal record holding them back.  Thus, according to its sponsor, the bill is about “second chances.”

The proposed law would add a Subsection (m) to the New Jersey drug court statute, N.J.S.A.2C:35-14.  Subsection (m) would provide, as follows;

Upon completion of a sentence to a term of special probation, the conviction and all records and information pertaining thereto shall be automatically expunged, provided that:
(1)The person has not been convicted of any prior crime, whether within this State or any other jurisdiction, and has not been adjudged a disorderly person or petty disorderly person on more than two prior occasions;

(2)The conviction is for a crime not included in the list of crimes that may not be expunged as provided in subsections b. or c. of N.J.S.2C:52-2; and;

(3)The person has not had a previous criminal conviction expunged regardless of the lapse of time between the prior expungement, or sealing under prior law, and the completion of the present sentence to a term of special probation.

Thus, to qualify for an automatic expungement, the proposed law requires that the individual cannot a prior conviction for a felony/indictable offense or more than two prior disorderly or petty disorderly persons convictions.  The conviction seeking automatic expungement must also not be for any of the crimes that are ineligible for expungement pursuant to N.J.S.A. 2C:52-2.  Crimes that are ineligible for expungement under N.J.S.A. 2C:52-2 include violent offenses, such as criminal homicide, kidnapping, human trafficking, sexual assault, robbery, and arson, among other offenses.  Finally, the person cannot have had a previous felony/indictable offense expunged.

The bill also sets forth certain procedural requirements for the granting of the automatic expungement.  For example, no petition would be required and no fee would be charged for the expungement.  Moreover, a statutory disqualification would be the only basis for a prosecutor to object to the expungement.

The bill has not yet been released from the Assembly Appropriations Committee. At present, there is no such thing as an automatic expungement.  Petitioners seeking expungement in New Jersey must proactively file a petition with the courts requesting an expungement.  Courts, moreover, oppose the bill because it shifts the burden of expungement from the defendant to the courts: they point to the substantial burden the bill would impose on them as a result of having to perform the work that lawyers traditionally handle in the expungement process. In the meantime, we will continue to provide updates on this important expungement bill, which is still in its early stages.

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