Exceptions to the Statute

The New Jersey’s Expungement Statute (Statute) was conceived to give its citizens a new lease on life by removing the social and economic stigma that can result from a conviction or arrest of a criminal offense.

Despite the noble purpose of the Statute, there are a number of exception to the Statute that can course a court to deny an expungement application. They follow:

1. An expungement application can be denied if the applicant has failed to satisfy the statutory prerequisite. Thus, if the application to expunge a disorderly persons offense is filed five years prior to the completion of the sentence, including the payment of all fines and the completion of probation, the application will be denied.

2. People who have been previously convicted of certain crimes can not obtain an expungement for those crimes. Those crimes include murder, death by auto, kidnapping, aggravated assault, false imprisonment, robbery, aggravated arson, perjury and endangering the welfare of a child. In addition, you cannot obtain an expungement for a conviction relating to the sale or distribution of drugs. If a person has been pardoned for one of these offenses, this statutory bar does not apply.

A person holding a public office cannot obtain an expungement, if the crime involved the public office. This disqualifier does not apply to disorderly persons offenses.

3. Where the need to make the defendant’s criminal records available outweighs the general underpinning of the expungement statute, an expungement request may be denied. The party objecting to the expungement has the responsibility of demonstrating the need to continue to maintain the conviction on the public record.

4. Where the subject matter of the expungement is relevant to civil litigation between the applicant and any governmental agency, an expungement request can be denied.

5. A prior expungement of crime or three disorderly or petty disorderly offenses will bar subsequent requests for an expungement.

6. A person can not obtain an expungement if he/she has previously received the benefit of supervisory treatment or other diversionary programs (i.e. P.T.I).

7. A person can not obtain an expungement of a crime, if he/she has been convicted of a prior or subsequent crime or more than two disorderly persons or petty disorderly person. A person can not obtain an expungement of a disorderly person or a petty disorderly persons conviction, if the person has been convicted of a prior or subsequent crime or three subsequent disorderly persons offenses or petty disorderly persons offense. These disqualifications relate to convictions in any jurisdiction. (Bo 2 or 3 N.J.S.A. 2C:52-2(g)).

8. A prior expungement will not bar a request to expunge an arrest record that did not result in a conviction or an expungement of a municipal ordinance conviction.

Once an expungement order is issued, the arrest or the convictions subject of the order with certain exceptions are erased from the defendant’s record. Thus, if the defendant has successfully obtained an expungement he/she may respond "no" to an application that questions whether he/she has was ever been arrested or convicted. Law enforcement agents who have received inquiries about prior arrests and convictions are required to answer that "no records exist" if an expungement has issued. Simply stated, an expungement means the extraction and isolation of records relating to criminal arrests and convictions. It does not mean that documents relevant to prior criminal encounters are destroyed or erased. They are simply removed from the government’s records and isolated with other expunged records. These records can include the complaint warrant, processing records, fingerprints, photographs of sheets and judicial dockets. Notably, however, a person who has received the benefit of an expungement must disclose the expungement seeking employment with a judicial branch or a law enforcement or correction agency.

Frank T. Luciano, Esq., is a trial lawyer in Bergen County, Passaic County, Hudson County and Morris County with over thirty years of experience in the defense of criminal prosecutions with special emphasis in drug crimes and drunk driving (DWI/DUI) offenses.