Protocol for "Drug Court Expungements" (N.J.S.A.
2C:35-14(m)) and Expungements of Arrests Not Resulting in Conviction (N.J.S.A. 2C:52-6)
May
23,2016
Acting Administrative Director of the Courts
www.njcourts.com • Phone: 609-984-0275 • Fax: 609-984-6968
This
Directive promulgates the protocol to implement recent
amendments to N.J.S.A. 2C:35-14 and N.J.S.A. 2C:52-6
pursuant to b. 2015, c. 261, effective April 18, 2016. These procedures address two types of
expungements: (1) a "Drug
Court Expungement" of all
records and information
relating to all prior arrests,
detentions, convictions, and proceedings for Title 2C offenses upon successful
discharge from a term of special probation (N.J.S.A. 2C:35-14(m)); and (2) an
expungement of all records and information of an arrest
or charge not resulting in conviction (N.J.S.A. 2C:52-6).
I. "Drug Court Expungement" (N.J.S.A. 2C:35-14(m))
A. Graduation from Drug Court on or after April18, 2016
The new law provides that the Superior Court may order the expungement of all records
and information 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 as ordered by the court and was
not convicted of any crime, or adjudged a disorderly person or petty disorderly
person, during the term of special probation. See N.J.S.A. 2C:35-14m(1). "Successful discharge"
has been determined to be graduation from Drug Court. Therefore, persons who
did not graduate from Drug Court are not eligible for a "drug court expungement."
To be
considered for an expungement upon graduation from Drug Court on
or after April 18, 2016, the individual or his/her counsel should bring this
matter to the attention of the Drug Court judge prior to graduation. The
regular procedural requirements for expungements in N.J.S.A. 2C:52-7 through N.J.S.A. 2C:52-14 do not apply to this "drug
court expungement" (i.e., verified petition, service, denial),-and no fee
Richard J. Hughes Justice Complex • PO Box 037 • Trenton, New Jersey 08625-0037
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will be charged. The Expungement Order (Form C) in the prose expungement packet
entitled "How to Expunge Your Criminal and/or Juvenile Record" can be
used for this purpose. The pro se packet is available on the Judiciary's website at http://www.judiciary.state.nj.us/prose/1 0557_expunge_kit.pdf.
The
prosecutor is required to notify the court of any disqualifying convictions or
any other factors related to public safety that should be considered by the
court when deciding whether to grant a "drug court
expungement." See N.J.S.A. 2C:35-14m(2). The court shall 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 otherwise
ineligible for expungement because the person's records include a conviction
for an offense barred from expungement under N.J.S.A. 2C:52-2(b) or (c). If granted, the signed Order should be assigned an expungement reference
number by Criminal Division staff.
The law
requires that a copy of the "drug court expungement" order must be
provided by the Superior Court to the prosecutor, the person, and, to the Public Defender, if the person was represented by that Office.
Thereafter, the person, or the Public Defender, if applicable, must promptly distribute copies of the expungement order to
the appropriate agencies who have custody and control of the records specified
in the order. See N.J.S.A. 2C:35-15m(3).
Additionally,
if the person whose records are expunged, pursuant to N.J.S.A. 2C:52-14m(1), is subsequently convicted of any crime
following discharge from special probation, the full record of arrests and
convictions may be restored to public access, and the person is thereafter
barred from any future expungement. See N.J.S.A. 2C:35-
15m(4).
B.
Graduation from Drug Court prior to April18, 2016
Persons
whose graduation from Drug Court occurred prior to April 18, 2016 may
apply for an expungement of all records and information relating to all arrests, detentions, convictions, and proceedings for any
Title 2C offense that existed at that time. See N.J.S.A. 2C:35-14m(5).
Individuals who did not graduate from Drug Court are not eligible for a
"drug court expungement." Additionally, persons who have been
convicted of any offense barred from expungement under N.J.S.A. 2C:52-2(b) or (c), or who have been convicted of any crime or offense since
the successful discharge shall not be eligible to apply for this type of
expungement. Further, applications for this expungement will not be considered
until any pending charges are disposed.
To apply, the person must present the duly verified petition, as provided in N.J.S.A. 2C:52-7, in the Superior Court in the county
where he or she was sentenced to special probation. There will be no fee
required for filing the expungement petition. Information on filing an
expungement petition is contained in the pro se expungement packet.
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The law
further provides that the procedures governing expungement petitions under
N.J.S.A. 2C:52-1 et seq. are applicable, except that the
requirements related to the expiration of time periods under N.J.S.A. 2C:52-2 through 2C:52-4.1 do not apply. In addition, the prosecutor is require.d to notify the court of any
disqualifying convictions or any other factors related to public safety that
should be considered by the court when deciding whether to grant a "drug
court expungement."
The court
shall consider the person's verified petition and may order the expungement of
all records and information relating to all arrests, detentions, convictions, and proceedings that existed at the time of the Drug Court graduation as
appropriate. Additionally, the court shall grant the relief requested 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 otherwise
ineligible for expungement.
II. Expungement
of Arrests Not Resulting in Conviction (N.J.S.A. 2C:52-6)
The new
law, effective April 18, 2016, also sets forth procedures to
expunge all records and information of an arrest or charge when a person has
been arrested or held to answer for a crime, disorderly persons offense, petty disorderly persons offense, or municipal ordinance violation, where
the proceedings were dismissed; the person was acquitted, or the person was discharged
without a conviction or finding of guilt in Municipal Court or Superior Court.
Regardless of whether the proceedings were in Municipal Court or Superior
Court, no fee will be charged for these expungements on or after April 18, 2016.
An
expungement under this amendment to the statute shall not be ordered
where the dismissal, acquittal, or discharge resulted from a plea bargain
agreement involving the conviction for other charges. This bar does not apply
once the conviction is itself expunged. See N.J.S.A. 2C:52-6a(3). ·
It should
be noted that the law did not amend the expungement procedures for persons who
have had charges dismissed pursuant to the Pretrial Intervention (PTI) program,
a conditional discharge (N.J.S.A. 2C:36A-1), or Conditional Dismissal program (N.J.S.A.2C:43-13.1 et al.).
Such petitions shall be barred from expungement until six months after entry of
the order of dismissal. There will be no fee for these expungements.
See N.J.S.A. 2C:52-6c.
A.
Dismissal, Acquittal, or Discharge without a Conviction or Finding of Guilt on or after April18, 2016
1. Municipal Court
Proceedings
Where the
proceedings were dismissed, the person was acquitted, or the person was discharged without a conviction or finding of guilt on or
after April 18, 2016 in Municipal Court, that court must provide the person,
upon request, with appropriate
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documentation
to be transmitted to the Superior Court to request an expungement. See N.J.S.A.
2C :52-6a(1) . The instructions and forms for applicants seeking an expungement of
proceedings in Municipal Court are set forth in my memorandum to Municipal
Court Judges, Directors, and Administrators dated May 23, 2016, which is appended to this directive.
Upon
receipt of the Application and accompanying Expungement Order, Criminal
Division staff will assign an expungement reference number to the Order and
calendar the matter within 14 days for signature of the ex parte order by the
Superior Court judge designated to handle expungements.
2. Superior Court Proceedings
Where the
proceedings were dismissed, the person was acquitted, or the person was
discharged without a conviction or finding of guilt on or after April 18, 2016
in the Superior Court, that court must, upon application by the person, order the expungement of all records relating to the arrest or charge at
the time of the dismissal, acquittal, or discharge. See N.J.S.A.
2C:52-6a.
The
provisions of N.J.S.A. 2C:52-7 through N.J.S.A. 2C:52-14 (i.e., verified petition,
service, and denial) do not apply. The form Expungement Order (Form C) in the
prose expungement packet should be utilized. This order should be made readily
available in the Criminal Division to ensure that defense counsel or the person
can submit it at the time of the dismissal, acquittal, or discharge without a
conviction or finding of guilt. Once the judge who presided over the
proceedings has signed the order, it should be assigned an
expungement reference number by Criminal Division staff.
3.
Approval of the Expungement
If
granted, a copy of the signed Expungement Order shall be forwarded by the
Superior Court to the prosecutor and, if applicable, to the appropriate
Municipal Court. The prosecutor must promptly distribute copies of the
Expungement Order to the appropriate law enforcement agencies and correctional
institutions who have custody and control of the records specified in the
order. See N.J.S.A. 2C:52-6a(4).
B. Dismissal, Acquittal, or Discharge without a Conviction or Finding of Guilt prior to April18, 2016
A person
who did not apply for the expungement of an arrest or charge not resulting in a
conviction, at the time of the dismissal, acquittal, or discharge, may present,
at any time following the disposition of the proceedings, a duly verified
petition as provided in N.J.S.A. 2C:52-7, in the Superior Court in the county
in which the disposition occurred. These applications should be assigned to the
Superior Court judge designated to handle expungements. Information on filing
an expungement petition is included in the prose expungement packet.
Richard J. Hughes Justice Complex • PO Box 037 • Trenton, New
Jersey 08625-0037
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Necessary
changes to the prose expungement packet will be forthcoming. Any question or
comments regarding this directive may be directed to the Criminal Practice
Division at 609-292-4638.
Attachment
cc:
Chief
Justice Stuart Rabner Criminal Division Judges Municipal Presiding Judges
Steven D. Bonville, Chief of Staff
AOC
Directors and Assistant Directors Trial Court Administrators
Melaney S. Payne, Special Assistant Ann Marie Fleury, Special Assistant
Criminal
Division Managers
Municipal Division Managers
Sue Callaghan, Chief, Criminal
Practice
Donna Plaza, Chief, Criminal Practice
Julie Higgs,
Chief, Municipal Court Services Maria Pogue, Assistant Chief, Criminal Practice Luanh L. D'Mello, Municipal Court Services
Richard J. Hughes Justice Complex · PO Box 037 • Trenton, New Jersey 08625-0037
Published: 0512016, CN: 11980 (Municipal Order for Expungernent of Arrest or Charge
source
http://www.judiciary.state.nj.us/notices/2016/n160526a.pdf
