On January 19, 2016, Governor Christie signed Assembly Committee Substitute for A-206, 471, 1663, 2879, 3060, and 3108 into law as P.L. 2015, c.261. The new law takes effect on April 18, 2016.
“Drug Court” Expungement – The new law amends N.J.S.A.2C:35-14 to authorize the Superior Court to order the expungement of all records relating to all prior arrests, detentions, convictions, and proceedings for any Title 2C offense upon a person’s successful discharge from a term of special probation, regardless of whether the person was sentenced to special probation under N.J.S.A.2C:35-14, N.J.S.A.2C:35-14.2, or N.J.S.A.2C:45-1, if the person satisfactorily completed a substance abuse treatment program and was not convicted of any crime, or adjudged a disorderly person or petty disorderly person, during the term of special probation. Under the law, the procedural requirements for expungements in N.J.S.A.2C:52-7 through N.J.S.A.2C:52-14 do not apply to a “drug court” expungement (i.e., verified petition, service, denial). The law provides that no fee can be charged to a person who is eligible for expungement under section 1. The law requires that court grant the expungement unless it finds that the need for the availability of the records outweighs the desirability of having the person freed from any disabilities associated with their availability, or it finds that the person is ineligible for expungement because the person’s records include a conviction for an offense barred from expungement. Under the law, the prosecutor must notify the court of any disqualifying convictions or public safety factors that should be considered by the court when deciding whether to grant a “drug court” expungement.
The law requires that the court provide a copy of a “drug court” expungement order to the prosecutor, the drug court graduate and, if the person was represented by the Public Defender, to the Public Defender. Thereafter, the drug court graduate or the Public Defender must promptly distribute copies of the expungement order to appropriate agencies who have custody and control of the records specified in the order.
Under the law, if a drug court graduate whose records are expunged upon discharge from special probation is convicted of any crime following the discharge, the full record of arrests and convictions may be restored to public access and the person is thereafter barred from any future expungement.
Finally, the new law provides that a person who, prior to the law’s effective date, was successfully discharged from a term of special probation may seek an expungement of all records relating to all arrests, detentions, convictions, and proceedings for any Title 2C offense that existed at the time of discharge. Persons seeking a post-discharge expungement under this provision must present an application to the Superior Court in the county in which the person was sentenced to special probation, which contains a duly verified petition pursuant to N.J.S.A.2C:52-7 for each crime or offense sought to be expunged. Under the law, consideration of the petition would proceed pursuant to N.J.S.A.2C:52-1 et seq., except that the requirements related to the expiration of the time periods specified in N.J.S.A.2C:52-2 through N.J.S.A.2C:52-4.1 do not apply. This section of the law contains additional requirements related to the person’s eligibility for expungement and the court’s consideration of the expungement application. The law provides that no fee can be charged to a person seeking a post-discharge expungement under its provisions.
Requirements for Expungement of Crimes – The new law continues the five-year “public interest” exception (known as “early pathways”) to the standard 10-year eligibility time requirement for the expungement of a crime, but authorizes the court to order the expungement of up to two disorderly persons or petty disorderly persons convictions along with the expungement of a crime. Under the law, each conviction sought to be expunged must be supported by a separate verified petition and must comply with the requirements of N.J.S.A.2C:52-1 et seq. The law provides that when a person is seeking an expungement for a crime and disorderly persons convictions, the eligibility time standard is 10 years, or five years with a “public interest” finding, from the date of the “most recent” conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration for the crime and any disorderly persons offense, whichever is later.
Requirements for Expungement of Disorderly Persons Offenses – The law provides that a person seeking expungement of a disorderly persons or petty disorderly persons conviction may do so by filing an expungement petition with the court. However, if the person has been convicted of a prior or subsequent crime, the person cannot proceed under N.J.S.A. 2C:52-3, but must seek expungement of all eligible convictions (including the crime) under N.J.S.A.2C:52-2, as amended by section 2 of the law. Additionally, the law allows a person to seek the expungement of up to three disorderly persons or petty disorderly persons convictions in a single application to the court, although a separate verified petition must be presented for each conviction and must comply with the requirements of N.J.S.A.2C:52-1 et seq. To parallel the “early pathways” exception in N.J.S.A.2C:52-2, the law provides that when a person is seeking the expungement of a disorderly persons or petty disorderly persons conviction under N.J.S.A. 2C:52-3, the eligibility time standard is five years, or three years with a “public interest” finding, from the date of the conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration for that crime or for any disorderly persons offense, whichever is later. The law clarifies that where the person is seeking the expungement of multiple disorderly persons convictions, the eligibility time standard tolls from the date of the “most recent’ conviction.
Expungement of Arrests Not Resulting in Conviction – The new law provides that when a person has been arrested or held to answer for a crime or any lesser offense and the proceedings against the person were dismissed, the person was acquitted, or the person was discharged without a conviction or finding of guilt, the Superior Court must upon application from the person, order the expungement of all records relating to the arrest or charge at the time of the dismissal, acquittal, or discharge. Under the law, if the proceedings took place in a municipal court, the municipal court must provide the person, upon request, with appropriate documentation to transmit to the Superior Court to request expungement pursuant to procedures developed by the Administrative Office of the Courts. Upon receipt of such documentation, the Superior Court must enter an ex parte order expunging all records and information relating to the person’s arrest or charge.
The law states that the provisions of N.J.S.A.2C:52-7 through N.J.S.A.2C:52-14 (verified petition, service, and denial) do not apply to an expungement pursuant to section 4. In addition, the law provides that no fee can be charged to a person making such an application. The law clarifies that an expungement related to a dismissal, acquittal, or discharge does not bar any future expungement.
The law provides that an expungement under section 4 shall not be ordered where the dismissal, acquittal, or discharge resulted from a plea bargaining agreement resulting in the conviction of other charges, but that this bar does not apply once the conviction resulting from the plea agreement is expunged.
The law requires that the court forward a copy of the expungement order to the appropriate court and to the prosecutor. Under the law, the prosecutor must promptly distribute copies of the expungement order to appropriate law enforcement agencies and correctional institutions who have custody and control of the records specified in the order.
Finally, the law permits a person who did not apply for the expungement of an arrest or charge not resulting in a conviction at the time of dismissal, acquittal or discharge to present, at any time following the court’s disposition, a duly verified petition as provided in N.J.S.A.2C:52-7 to the Superior Court in the county in which the disposition occurred praying that the records of such arrest and proceedings be expunged. The law provides that no fee shall be charged to a person for applying for an expungement of an arrest or charge not resulting in a conviction where a petition is filed after the court’s disposition.
Use of Expunged Records – The law amends N.J.S.A.2C:52-21 to provide that, in addition to other authorized purposes, expunged or sealed records of prior arrests or convictions may be provided to the Probation Division of the Superior Court, the pretrial services agency, or the Attorney General when such records are requested for use in conjunction pretrial release determinations pursuant to N.J.S.A.2C:162-15 et seq.
Expungement Policy – The law modernizes the overarching policy of the State’s expungement laws to reflect the statutory revisions of Chapter 261.