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Expungement

 

What is an expungement?

Simply put, an expungement is a legal way to "clear your record".

Under New Jersey law (N.J.S. 2C:52-1), all records on file in the criminal justice system that relate to a criminal prosecution may be extracted and isolated.

Do the records just "disappear"? No. All the expunged records are sent to a special facility for expunged records. The records cannot be accessed for general law enforcement or civil use. However, there are certain exceptional situations under which the expunged records can be searched, retrieved, and used, but this is rare and normally requires a court order or statutory authorization.

One way to look at it is, expunged records do not "disappear", but they do "go away", and in most cases are never heard from again.  

 

Why do I need expungement?

A criminal conviction may affect on your legal rights, economic opportunities, and social situation.

Many people discover the problems a criminal record creates when they are trying to move forward in their lives --applying for a job, license, or entrance to higher education. It is important to obtain an expungement of criminal records as soon as possible, well before one's past history will be reviewed or questioned. It may be too late once an important opportunity or right is lost.

Following are just a few of the situations where a criminal record can affect your life.

Legal:

  • Voting
  • Jury duty
  • Child custody rights
  • Holding public office
  • Credibility as a witness in court
  • Firearms - Acquisition and Possession

Economic:

  • Economic: Bank Loans
  • Employment
  • College Applications
  • Professional Licenses

Social:

  • Social stigma
  • Military Service
  • Place of Residence
  • Clubs and civic organizations

 

IMPORTANT NOTE:

Your expungement will help you avoid the legal, economic, and social problems of a criminal record in two ways:

  1. You may legally say that you have never been arrested or convicted of a crime.
  2. If anyone does a background check on you, courts and law enforcement agencies will indicate that "no criminal record exists".

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What kind records may be expunged?

Normally, records in any court, correctional facility, law enforcement or criminal justice agency will be affected. Specifically, records regarding a person's detection, apprehension, arrest, detention, trial or the disposition of an offense within the criminal justice system are selected for expungement. Other records, which may exist in a court, such as property deeds, or civil lawsuits or judgments, will not be affected or expunged.

In effect, one's criminal record of arrest and/or conviction is erased and legally deemed not to have occurred.

Mental health records, which may affect one's ability to purchase or possess firearms or obtain employment or licenses, may also be expunged. The process is similar to the criminal history expungement.

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Who is eligible for an expungement?

Expungement eligibility is a highly technical area. One should ask a qualified attorney regarding one's specific facts situation.

Generally speaking, a person may have a criminal offense expunged if ten (10) years have passed since the completion of one's sentence. Disorderly persons offenses and petty disorderly persons offenses may be expunged after five (5) years. An arrest not resulting in a conviction may generally be expunged without delay.

There are limits as to the number of matters which may be expunged, and there are offenses which may not be expunged. There are also other various statutory limitations regarding expungement which are too technical to list.

The law of expungement and eligibility is so complicated and contains so many exceptions, that only a qualified lawyer should do the analysis of who is eligible and who is not.

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How do I get an "Expungement?"

An expungement involves petitioning the Superior Court of New Jersey.

First, an investigation of the person's criminal history is done to confirm eligibility for expungement. Second, a petition is prepared and filed in Superior Court. Third, notifications are sent to various law enforcement, prosecutor, and court offices.

After the court receives all of the necessary documents, a hearing date is set for the expungement petition to be heard. In most cases, it is not necessary for the petitioner (the person seeking the expungement) to appear. However, if any of the law enforcement, prosecutor, or court offices object to the expungement, then legal briefs and oral argument at the hearing may be required.

The process normally takes about 3 months, but may take longer depending on the legal issues involved or the particular court.

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Can an expungement help me to lawfully possess firearms?

Yes.

Because an expungement removes the criminal conviction or mental health record, it may have the effect of removing the disqualification placed upon a "convicted person" from purchasing or possessing firearms under the firearm licensing law of N.J.S. 2C:58-3(c) and under the firearm possessory law of N.J.S. 2C:39-7.

A State expungement also removes the Federal disqualification for convicted felons purchasing or possessing firearms. At one time an individual needed a Federal relief from disabilities even though they had a State expungement. Under the 1986 Gun Owners Protection Act, this was changed so that the Federal Government recognizes State expungement. This express recognition may be found under the U.S.C.A. Title 18, 921(a)(20).

Expungement of an otherwise qualifying offense also removes one from being subjected to the Lautenberg Domestic Violence Misdemeanor Gun Ban.

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