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Drug Court Expungements: The Impactful Legislation of New Jersey
Drug Court Expungements:The Impactful Legislation of New Jersey
Overview of Expungement
• An expungement is the removal of an arrest, juvenile custody, conviction, adjudication of delinquency, or disposition from an individual’s records held by any court, detention facility, law enforcement, criminal justice agency or juvenile justice agency.
Drug Court Expungements: The Impactful Legislation of New Jersey
Expungement Overview
• NJSA 2C:35a-1.a. provides:– “Expungement shall mean the extraction
and isolation of all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person’s detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system”.
Drug Court Expungements: The Impactful Legislation of New Jersey
The Benefits of Expungements
• Once an expungement has been granted, the arrest, conviction and any proceeding related thereto shall be deemed not to have occurred and the petitioner my answer any questions relating to their occurrence accordingly.
Drug Court Expungements: The Impactful Legislation of New Jersey
• Once a government agency receives an expungement order they must remove the criminal records from their files.
• In response to public requests for any records regarding the person or offenses that were expunged all agencies must reply that there is “no record information”.
Drug Court Expungements: The Impactful Legislation of New Jersey
• The petitioner does not have to disclose the record when applying for employment, firearm permits, professional licenses, schools, adoptions or housing.
• These records can however, be available in certain future court proceedings.
Drug Court Expungements: The Impactful Legislation of New Jersey
• The scope of the expungement is limited. They are only available:– An indictable offense, 2 disorderly
offenses, outright dismissals, a conditional discharge and ordinance violations can be expunged
– 3 disorderly or petty disorderly offenses, dismissals, a conditional discharge and ordinance violations
– PTI and any other offense; only the PTI outright dismissals and ordinance violations
Drug Court Expungements: The Impactful Legislation of New Jersey
• Scope continued…
– 2 indictables or more; only outright dismissals and ordinance violations can be expunged
– 4 disorderly or petty disorderly offenses; only outright dismissals and ordinance violations can be expunged
Drug Court Expungements: The Impactful Legislation of New Jersey
– Nothing can be expunged if the petitioner has outstanding criminal charges, any disorderly or petty disorderly offense charges.
– Additionally, there are established waiting periods for traditional expungements.
Drug Court Expungements: The Impactful Legislation of New Jersey
Waiting Times in New Jersey Before Convictions and Some Dismissals Can Be Expunged
Crime Waiting Period
Felony 10 Years (5 years Public Interest)
Disorderly Persons Offense (Misdemeanor) 5 Years (3 Years Public Interest)
Petty Disorderly Persons Offense (Misdemeanor) 5 Years
Municipal Ordinance 2 years
Driving While Intoxicated (DWI/DUI) DWI/DUI arrests and convictions cannot be expunged under New Jersey law.
Dismissal following successful Six monthscompletion of diversion (PTI, ConditionalDischarge, or Conditional Dismissal)
Drug Court Expungements: The Impactful Legislation of New Jersey
What offenses cannot be expunged?
• DWI/DUI• Criminal homicide (vehicular homicide excepted)• Kidnapping• Luring or enticing• Aggravated Sexual Assault• Criminal sexual contact with a minor• Criminal restraint• Robbery• Endangering the welfare of a child• False imprisonment• Perjury• False swearing• First and second degree distribution of a controlled substance or
possession of a controlled dangerous substance with intent to distribute (Third and fourth degree distribution charges are expungable, subject to a public interest finding)
Drug Court Expungements: The Impactful Legislation of New Jersey
Filing a traditional expungement
How to File for an Order to Expunge Your Criminal and/ or Juvenile Record
http://www.judiciary.state.nj.us/prose/10557_expunge_kit.pdf• Petition for Expungement• Order for Hearing• Expungement Order• Cover Letter (2)• Proof of Notice• Cover Letter• Vicinage Expungement Seminars• Fee of $75.00
Drug Court Expungements: The Impactful Legislation of New Jersey
Expungements Completed
2015 2016 2017 (year to 4/20/17)
4,048 4,484 1,668
Drug Court Expungements: The Impactful Legislation of New Jersey
Expungement Bill A. 206
Expungement Bill A. 206 was signed on January 19, 2016 and enacted on April 18, 2016. This bill made changes to the section of New Jersey law governing Drug Court. • Those people who complete a term of special probation,
through Drug Court, would be eligible to have their records expunged by the court.
• Following completion of special probation, a judge could order the expungement of all records and information relating to all prior arrests, detentions or proceedings and convictions (not limited to the charge for which special probation was given) for any title 2C offense.
• An individual would not be eligible for expungement if his or her record included a conviction for an offense that bars expungement under NJ 2C:52-2(b), which includes many serious, violent crimes.
Drug Court Expungements: The Impactful Legislation of New Jersey
Expungement Bill A. 206 (cont.)• The law requires the court to 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.
• Under the law, if a drug court graduate whose records are expunged upon discharge from special probation is convicted of any crimefollowing 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.
Drug Court Expungements: The Impactful Legislation of New Jersey
Drug court expungements are “all or nothing”
Drug Court Expungements: The Impactful Legislation of New Jersey
Drug Court Expungement Eligibility Criteria• Graduates must have satisfactorily completed a substance abuse treatment
program.
• Expungement is not automatic for all graduates. An individual would not be eligible for expungement if his or her record included a conviction for an offense that bars expungement under NJ 2C:52-2(b), which includes many serious, violent crimes.
• Graduates are not eligible for an expungement if convicted of any crime, or adjudged a disorderly person or petty disorderly person, during the term of special probation.
• Graduates are ineligible for an expungement if convicted of any crime since the date of discharge from special probation.
• No fee shall be charged to graduates in order to obtain an expungement and a verified petition does not need to be prepared as in traditional expungement.
Drug Court Expungements: The Impactful Legislation of New Jersey
Expungement Differences for Drug Court Graduates
Drug Court Expungements: The Impactful Legislation of New Jersey
Non-Drug Court Graduate Drug Court Graduate
The statutes disallow expungement for convictions if the applicant has been convicted of two or more indictable offenses, or four or more disorderly persons offenses.
No limit on number of offenses to be expunged.
If the applicant has a combination of one criminal conviction and up to two disorderly persons convictions, both the criminal conviction and disorderly persons convictions can be expunged after the waiting period has been satisfied.
There is no waiting period.
Waiting periods begin to run on the date of sentencing, the date all fines are paid, or the completion date of probation or parole, whichever occurs last.
Fines do not have to be paid for drug court graduates; however, a consistent payment history is required.
Fee is required to obtain a copy of the Criminal Case History (CCH)
No fee is paid by Drug Court graduate; prior graduates’ fees are also waived.
Expungement Process
Drug Court Coordinator provides team with list of
potential graduates 3 months prior to
graduation.
Potential graduate completes Request for
Graduation Form and 5A form, requests
expungement on the form.
Public Defender reviews records for expungement
eligibility.
Public Defender completes proposed
Expungement Order and forwards to Prosecutor for
review.
Prosecutor Office runs CCH and reviews
proposed Expungement Order.
Proposed Expungement Order is forwarded to the state police with a letter from the Court indicating
the Order is for a Drug Court graduate.
Once the State Police reviews the Proposed
Order, the Expungement order can be signed.
The Prosecutor may object to the
Expungement if it is in the best interest of the public to not grant the
expungement.
The Public Defender’s Office is responsible for distributing the finalized Expungement Order to all
interested parties.
Drug Court Expungements: The Impactful Legislation of New Jersey
Effects on prior graduates
• Drug Court graduates prior to April 17, 2016 also benefit: – No cost– All or nothing– They do however have to complete the
packet themselves and follow the traditional process
Drug Court Expungements: The Impactful Legislation of New Jersey
As of April 18, 2017 More than 100 expungements have
been granted to Drug Court graduates. That totals more than
275 Superior Court cases.
Drug Court Expungements: The Impactful Legislation of New Jersey
Drug Court Expungement Statute
• Potential Issues for Consideration– Offenses not eligible– Public interest hearings– Municipal ordinances– Offenses that occurred prior to Drug
Court, but are not resolved until after admission
Drug Court Expungements: The Impactful Legislation of New Jersey
Benefits of expungements
• Criminal records can bar individuals from many benefits – Student loans– Federal education grants– Temporary Assistance to Needy Families
(TANF)– Food stamps
• Expungements clear the way for graduates to build upon their progress in drug court, improve their professional opportunities and provide security for their families.
Drug Court Expungements: The Impactful Legislation of New Jersey
Drug Court Expungements in other states
• Alabama• Arkansas• California• Washington D.C.• Georgia• Hawaii• Mississippi• Pennsylvania
Drug Court Expungements: The Impactful Legislation of New Jersey
Other Innovative Drug Court Legislation in New Jersey
• Mandatory Drug Court• Medication Assisted Treatment• Reduction in DEDR assessments• Eligibility for some 2nd degree offenses• Prosecutor objections eliminated
Drug Court Expungements: The Impactful Legislation of New Jersey
Questions
Drug Court Expungements: The Impactful Legislation of New Jersey
Presenters
Judge Timothy LydonMercer County Drug Court JudgeMercer County Criminal Courthouse 400 South Warren Street, Trenton, NJ 08608 [email protected]
Donna PlazaStatewide Drug Court ManagerAdministrative Office of the Courts25 W. Market StreetTrenton, NJ 08625
Drug Court Expungements: The Impactful Legislation of New Jersey
