Expungement FAQ : Do I Qualify?

What determines whether or not I am eligible to expunge my criminal record?

Expungement laws vary widely by state.  Whether or not a person can expunge their criminal record depends on the laws of the state in which the arrest and/or conviction occurred.  A person who is eligible for an expungement in one state may not be eligible for an expungement in another state.  Expungement laws in New Jersey are complicated.  The determination of which offenses qualify for expungement depend on the following factors, among others:

  • Whether the person seeks to expunge an arrest not resulting in a conviction or an actual conviction.
  • Whether the person was convicted of a crime (felony), disorderly persons offense (misdemeanor), or a municipal ordinance violation.
  • The total number of times a person has been convicted in the past and the types of offenses (i.e., crime, disorderly persons offense, or ordinance violation) the person has been convicted of.
  • Whether the individual has had criminal charges dismissed pursuant to a diversionary program such, as conditional discharge or pretrial intervention.
  • The date the individual completed their sentence (such as probation or payment of a fine) for any convictions.
  • Whether the individual was previously granted an expungement.

If you have been arrested or convicted multiple times, the laws regarding eligibility for expungement can become complicated.  The experienced expungement attorneys at the Law Office of Randolph Wolf will review all of your convictions and arrests in order to determine whether or not you qualify for an expungement.

 

If you are unsure of or do not remember exactly how many times you have been arrested or convicted, or are unsure what the final result was when you went to court, an accurate eligibility assessment will require reviewing the results of a criminal history search.  Click here to learn how to obtain a complete and accurate copy of your criminal record.

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When am I eligible to apply for an expungement?

You must wait a certain specified amount of time to expunge a conviction in New Jersey.  The time does not begin to run on the date of your conviction.  Instead, it begins to run from the date you completed your sentence – such as probation or payment of fines.  So, for example, if you were convicted on January 1, 2012, and sentenced to one year of probation, which you completed on January 1, 2013, the waiting time begins to run on January 1, 2013.  Note, however, that a court may relax this requirement with respect to the payment of fines.

The amount of time you must wait depends on the type of offense you were convicted of.  The time requirements are as follows:

  • Dismissal – no waiting period
  • Dismissal as a result of successful completion of a diversion program – six months
  • Young Drug Offender (under 21) – one year
  • Municipal Ordinance – two years
  • Juvenile Adjudication – five years or time period for expunging the offense if committed by an adult, whichever is shorter
  • Petty Disorderly Persons Offense (misdemeanor) – usually five years; however, an individual may be eligible for a three-year “early pathway” expungement.
  • Disorderly Persons Offense (misdemeanor) – usually five years; however, an individual may be eligible for a three-year “early pathway” expungement.
  • Crime (felony) – usually ten years; however, an individual may be eligible for a five-year “early pathway” expungement.
  • Please note that for those individuals who successfully completed Drug Court in New Jersey, the above time requirements do not apply.  Instead, upon completion of Drug Court, you may be eligible to have your entire criminal record expunged, regardless of how many convictions you have or how long it has been since you were convicted.

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I was arrested but the charges were dismissed.  Am I eligible for expungement?

If the charges were outright dismissed, you are eligible for an expungement right away, regardless of any other conviction you may have.  If the charges were dismissed pursuant to a diversionary program, such as conditional discharge or pretrial intervention, you must wait six months from the date of the dismissal for an expungement.

If your charges were dismissed after April 18, 2016, the court is required at the time of acquittal, dismissal, or discharge — upon your application — to order the automatic expungement of all records relating to the offense.  Please note, however, that this “automatic” expungement of arrests that resulted in dismissal applies ONLY if you “make application” to the court for the automatic expungement.  If you failed to ask the court for an expungement at the time the charges were dismissed, the record of the arrest will remain on your record and a petition for expungement will therefore need to be filed to remove the arrest record.  Moreover, if your charges were dismissed before April 18, 2016, the automatic expungement provision does not apply.  Thus, a petition for expungement will need to be filed with the court for charges that were dismissed prior to April 18, 2016.  

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I was arrested and the charges were dismissed outright or pursuant to a diversionary program.  Do I need an expungement?

Often times, people assume that they do not need an expungement if their charges were dismissed.  This mistaken assumption often leads to disastrous consequences, however.  Even if your charges were dismissed, anyone running a background check on you would be able to see the record of your arrest.  Arrest information does not automatically go away.  If order to ensure that this information does not show up, you must have the arrest record expunged.

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I was convicted of a municipal ordinance violation.  Am I eligible for expungement? 

As discussed above, the waiting period for an ordinance violation is two years.  If you have ever been convicted of a felony or more than two disorderly persons offenses, however, you may not expunge a local ordinance violation.

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I was convicted of a disorderly persons offense.  Am I eligible for expungement? 

As discussed above, you must wait five years from the date you completed your sentence to expunge a disorderly persons offense, although you may be eligible to apply for an “early pathway” expungement after only three years from the date you completed your sentence.  You can expunge up to three disorderly persons convictions. 

If you have been convicted of a prior or subsequent crime (or felony), along with any petty or petty disorderly persons offenses, you may apply to have the felony conviction and up to two petty disorderly persons or disorderly persons offenses expunged at the time same, so long as it has been at least ten years from the date you completed your sentence on the most recent conviction.  You may also be eligible to apply for an “early pathway” expungement of one felony conviction and up to two petty disorderly persons offenses or disorderly persons offenses if it has been at least five years from the date you completed your sentence on the most recent conviction.

It is important to note that the ability to expunge once felony conviction and up to two petty disorderly persons or disorderly persons offenses is a new law in New Jersey with respect to expungements, which went into effect on April 18, 2016.  Prior to April 18, 2016, anyone convicted of a felony could expunge their felony conviction, however, any petty disorderly persons offenses or disorderly persons offenses would remain on the record.  Thus, if you applied for an expungement of your felony conviction prior to April 18, 2016, and you were denied expungement of any petty disorderly persons or disorderly persons offenses that were on your record at that time, you may in fact now be eligible to have those convictions expunged under the 2016 amendments to expungement law in New Jersey.  

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I was convicted of a crime (felony).  Am I eligible for expungement?

Certain crimes, see below, are never eligible for expungement.  Excluding those offenses, if you have not been convicted of another crime (felony) or of a disorderly persons offense on more than two occasions, you are eligible to expunge your felony conviction.  You must generally wait ten years to expunge a felony conviction.  In 2010, however, the statute was amended to provide for an “early pathway” felony expungement.  Under the 2010 amendment, you can apply for expungement of a felony after five years so long as certain conditions are met.  The “early pathway” expungement is complex and requires compliance with many conditions as well as a court appearance.  As such, it is best to consult with an attorney if you are seeking an early expungement.

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Are certain convictions not eligible for expungement?

Yes.  Convictions for more serious crimes in New Jersey are statutorily barred from the expungement process.  Records of conviction for the following crimes, among others, are ineligible for expungement: homicide, kidnapping, human trafficking, arson, sexual assault, terrorism, robbery, and false imprisonment.

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I was convicted of DUI/DWI.  Can I expunge this record?

No.  In New Jersey, driving while intoxicated is considered a traffic offense – not a criminal offense.  Only criminal arrests or convictions can be expunged in New Jersey.  As such, it is not possible to expunge records relating to driving while intoxicated.  Motor vehicle violations remain on your driver’s abstract.

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I was convicted of possession of CDS with intent to distribute.  Is this offense eligible for expungement?  

In the past, convictions for possession of CDS with intent to distribute were ineligble for expungement.  In 2010, however, the law changed.   If your conviction was of the third or fourth degree, you are eligible to expunge the record so long as you prove that expungement is consistent with the “public interest.”  If you are seeking a “public interest” expungement, it is best to consult with an attorney.  This special type of expungement requires a heightened showing as well as a court appearance.  If your were convicted of first or second degree possession with intent to sell, your record is still ineligible for expungement.

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I am not eligible for expungement.  Is there anything that I can do? 

Yes. As illustrated by the above example, expungement laws change.  If your record is not eligible for expungement now, check again periodically as the laws regarding expungement may have changed.

In addition, you may want to consider apply for a Certificate of Rehabilitation.  Certificates of Rehabilitation are usually sought by individuals that have been denied a professional license due their criminal history.  Certificates of Rehabilitation are presumptive evidence of rehabilitation. This means that if you are granted a Certificate of Rehabilitation under N.J.S.A. 2A:168A-1, then the applicable New Jersey licensing authority will usually be prohibited from denying you a license based solely on your criminal conviction.  It should also be kept in mind that Certificates of Rehabilitation are not only available to individuals with professional licenses, however. Individuals who do not have professional licenses, but available to individuals with professional licenses, however. Individuals who do not have professional licenses, but e of Rehabilitation. Indeed, CORs can often times prove very useful in demonstrating rehabilitation to potential employers. Unlike with licensing authorities for professional licenses, however, private employers are free to afford as much or as little weight as they want to CORs.  Click here to read more about Certificates of Rehabilitation.  

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In the past, I received an expungement.  I was subsequently arrested again.  Am I eligible for another expungement? 

Perhaps.  While there is not limit to the amount of times a person can apply for an expungement, the court will looks at your complete criminal record (including matters that were expunged) in order to determine whether you are eligible for another expungement.

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