A Way Past Your Stray Past: Understanding the Expungement Landscape
“Your Honor, that record was expunged!”
We have all heard this line many times from frantic defense attorneys on Law and Order or any number of courtroom dramas. And unlike many other legal terms, expungement actually means what it sounds like: erasure. So, if one is so fortunate as to have a record expunged, as far as the government is concerned—as well as any future employers, insurers, or potential mates—it never existed, and hence cannot be used against you. Therefore, it is important to be up to speed on what can be expunged, when, and how.
Taken straight from the New Jersey code (NJSA 2C:52-1), if an offense is expungable, that means the entire record is such; everything from a complaint or warrant to an arrest, fingerprints, photographs, processing records, and judicial records, even your “rap sheet.” Can everything be expunged? Of course not. Murder, manslaughter, rape, arson, child molestation, terrorism, and a whole host of other serious and/or violent crimes are not eligible for expungement under any circumstances. But, certain offenses are eligible, and since April 2016 in New Jersey, that list has expanded to some degree and the requirements eased.
Offenses that are eligible for expungement under the right circumstances include misdemeanor disorderly persons or petty disorderly persons offenses; possession of small amounts of marijuana or hashish, or certain controlled dangerous substances if the conviction is 3rd or 4th Degree (small amounts). Juvenile delinquent judgments may be expunged as long as further offenses have not been committed since the judgment of delinquency. With these offenses, it can either be a five-year or two-year waiting period, depending on circumstances. Violation of town ordinances (i.e., open containers) can be expunged even more quickly. One big change in the 2016 law is the allowance of expungement of the records of minor (under 21 years of age) drug offenders after one year as long as certain requirements have been met. This law offers a true new start to those who might have been experimenting with drugs but have learned their lesson after a tour of the criminal justice system.
There are a couple of points worth remembering. First, if expungement is to be available, it is after a guilty judgment, which in the majority of cases will mean that defendants must plead out. Next, any additional offenses committed, while not certain to derail your expungement petition, may do so…therefore, keeping your hands clean after your guilty judgment is very important. Finally, it doesn’t matter if you’ve moved from one state to another during your waiting period; your record will follow you wherever you are in the United States.
The public policy behind these changes in the law is to allow those who have committed minor mistakes to rehabilitate their lives fully, without a smear on their record. If you believe you may be eligible for expungement, please refer to these resources below.