SHOULD I HIRE A LAWYER TO HANDLE MY EXPUNGEMENT?

An expungement lawyer will help the process go much more smoothly. In particular, he or she can help by:

• Gathering information;
• Drafting documents;
• Filing and mailing documents;
• Navigating court procedures;
• Keeping track of notices;
• Avoiding common mistakes;
• Responding to any objections; and
• Appearing and making arguments in court, if needed.

It’s particularly important to hire a lawyer in the more complex cases, such as:

• Early pathway expungement;
• Expungements for the sale or distribution of a CDS or possession of a CDS with intent to sell;
• When you have more than three convictions on your record;
• When you have out-of-state convictions; or
• When you want to expunge your record as a Drug Court graduate.

Document preparation services are best avoided. These companies do little more than fill in forms. They don’t provide legal advice. You still must make sure you’re meeting all requirements, including filing and mailing. And if you need to attend a hearing or respond to objections, you’ll also be on your own. So if you need help with your expungement, contact an attorney — they’ll be able to guide you through the entire process.

STEP 1: GET COPIES OF YOUR ARREST RECORD AND CRIMINAL RECORD

To prepare your Expungement Petition, you’ll need the following information:

• the date of the arrest (or, if you were a juvenile, the date you were taken into custody);
• the statute(s) and the offense(s) for which you were arrested and/or convicted (or, if you were a juvenile, taken into custody and adjudicated delinquent);
• the original indictment, summons, or complaint number;
• the date of conviction or other disposition (such as a not guilty verdict or dismissal); and
• the court’s disposition of the matter and any punishment imposed, including the dates you paid any fines and the date you completed probation or parole, if applicable.

This information will be used to determine whether your record is eligible for expungement — so it’s important that it’s accurate.

You also need to disclose your entire record in your Expungement Petition. If you don’t, a government party may object. An objection will delay your expungement. It may also decrease your chances of receiving the expungement. See Step 4: Distribute Copies of Your Filed Expungement Documents below for more information about objections.

Even if you think you know what’s on your record, it’s still a good idea to get an official copy. This way, you can make sure 1) that there aren’t any errors, and 2) that you aren’t forgetting anything. If you find any errors, you should try to correct them before filing for expungement.

Getting Individual Records

If you need information about a specific conviction, you can ask for a record directly from the court. In a municipal court, the record is called the “Disposition,” and you can request it from the court clerk. In a Superior Court, it’s called a “Judgement of Conviction,” and you can request it from the Criminal Records Division.

You’ll need to make the request in person and bring proper identification (like a driver’s license or birth certificate).

If you were an adult at the time of your offense, you should go to the court in the county you were arrested, charged, or convicted. If you were a juvenile, you should go to the family court in the county you were taken into custody, charged, or adjudicated delinquent.

The information you receive from the court won’t be a full criminal history. It will only cover the matters handled by that particular court. So if you have multiple convictions in multiple courts, you’ll need to go to each court separately.

If you were arrested but no charges were filed, you should contact the law enforcement agency handling your arrest.

If you had a lawyer at the time of your arrest or conviction, he or she may also have your record information.

Getting Complete Records

Going to the court directly is usually a good option if you know exactly what your convictions are, and which courts handled them. If you have multiple arrests or convictions, or you’re not sure what’s on your record, it’s a good idea to get a complete record. To do this, you generally have three options:

• New Jersey State Police. This option is available if you only have a record in New Jersey. You’ll need to complete an application, schedule a fingerprinting appointment, and pay a fee. Your fingerprints will be taken by a third-party company. Instructions are on the New Jersey State Police website. If you’ve already gone through this process for an employer, you still have to go through the entire process again. The new report will be used only for expungement purposes. Results typically come back in about two weeks and will only cover counties in New Jersey. Also keep in mind that you won’t have a record sheet with the State Police if you weren’t fingerprinted and only a complaint was signed against you. In that case, the police department or court that handled the complaint will have a copy of your record.
• FBI. This method provides nationwide information. You’ll need to submit an application, fingerprints (usually taken at local law enforcement offices), and a fee. The FBI’s website includes instructions. The website also includes current processing times. Results usually come back a few days after the receipt of the fingerprint card for electronic applications. Results for mailed applications take a few weeks.
• Your attorney. If you hire an expungement attorney, they can help you get a copy of your records. Usually you’ll need to send a completed application and fingerprints to your attorney, and they’ll handle the rest.

Unfortunately, it’s possible that the records you receive through the procedures above will still be incomplete. Sometimes the results omit juvenile records or municipal court matters.

If you have a juvenile or municipal court record, you can get the information directly from the court that handled the matter. Even though the matter may not show up on a State Police or FBI record, the county prosecutor will still object if you don’t include it in your Expungement Petition.

Some websites or private companies also offer services to retrieve your criminal record. It’s not a good idea to rely on these — the records they produce have a higher risk of being incomplete or inaccurate.

STEP 2: DRAFT YOUR EXPUNGEMENT DOCUMENTS

Once you’ve gathered all your information, you’ll need to prepare several documents. These include:

• Expungement Petition. This document requests expungement and states facts showing that your records are eligible.
• Proposed Order for Hearing. The judge assigned to your expungement will use this document to schedule your hearing.
• Expungement Order. If the judge grants the expungement, he or she will sign this document. It orders all criminal justice and law enforcement agencies in New Jersey to remove and isolate your record.
• “Public Interest” Certification. You should submit this certification if you’re applying for early expungement. You should also submit it if you’re applying to expunge a conviction for sale or distribution of CDS or possession with intent to sell in the third or fourth degree. This certification explains why you want expungement and why you should be granted expungement. You should attach evidence showing that granting expungement would be in the public interest. See Chapter 2: Expungement Eligibility — Early Pathway Expungement for more information about the “public interest” analysis.
• “Modified Payment of Fine” Certification. You should submit this certification if the waiting period has not been met with respect to the payment of fines, but is otherwise satisfied. It includes information about your fine and states that you either 1) substantially complied with the payment plan, or 2) couldn’t do so due to compelling circumstances (and explains such circumstances). See Chapter 2: Expungement Eligibility — Expunging Convictions — Expungement Waiting Periods for more information.
• Proof of Notice. This document certifies that you sent copies of your expungement package to the appropriate parties. You must sign the Proof of Notice and submit it to the court. You should also enclose copies of the return receipts. See Step 4: Distribute Copies of Your Filed Expungement Documents below for more information.

If you have an attorney, he or she will draft your documents for you. If filing on your own, the New Jersey Courts website provides forms with instructions. All documents must be typed or clearly printed on 8.5 x 11 inch white paper only.

STEP 3: SIGN AND FILE YOUR EXPUNGEMENT DOCUMENTS

Once you’ve drafted your expungement documents, you’ll need to sign the Expungement Petition in front of a notary public. The notary public will notarize the petition and stamp it with an official seal.

You should make three copies of all your application documents. Keep one copy for yourself. Your filing package should include:

• A cover letter explaining the contents and purpose of your application package;
• The original documents listed in Step 2 above and two copies;
• The filing fee, if applicable, payable to the Treasurer, State of N.J. (money order or certified check); and
• Two large self-addressed envelopes with postage stamped on each envelope (these will be used to send the filed copies of your documents back to you).

You’ll then file the package by mailing it to the court in the county where your arrest or conviction occurred. You can also file in person. A list of the criminal court offices handling expungements is included as Appendix A.

If your arrests or convictions took place in more than one county, you can contact the court in either county and ask if you can petition to expunge your entire record in that county. But if you’re only seeking to expunge disorderly persons offenses, you must file your petition in the county where the most recent disorderly persons offense was adjudged.

After you file the package, your expungement case will be assigned to a judge. The assigned judge will sign the Order for Hearing, which will state the time and date for your hearing. The hearing date is generally one to two months after you file your Expungement Petition.

A copy of your documents, including the signed Order for Hearing, will be mailed back to you marked “Filed.” You’ll also get a “Docket Number.” The Docket Number is an identifying number for your case as it moves through the court system.

STEP 4: DISTRIBUTE COPIES OF YOUR FILED EXPUNGEMENT DOCUMENTS

After you receive the filed documents back from the court, you’ll need to distribute (or “serve”) copies of these documents to each government entity involved with your case. This will include the county prosecutor and New Jersey State Police.

You should send the copies right away by certified mail, return receipt requested. Under New Jersey law, you have to mail these copies within five days from the date the Order for Hearing was signed.

Recipients should include:

• Superintendent of the State Police, Expungement Unit
• Attorney General of New Jersey
• County Prosecutor
• Head of the police department (such as Chief of Police) where your arrest or the offense took place
• Chief law enforcement officer of any other law enforcement agency that participated in the arrest
• Warden or superintendent of any institution in which you were incarcerated
• If a municipal court heard the matter to be expunged, the magistrate of the municipal court
• County Probation Division if you:
  • were granted a conditional discharge
  • were enrolled in PTI
  • were enrolled in a juvenile diversion program
  • were granted a deferred disposition
  • performed community service
  • owed fines or restitution
  • served probation
  • If your case was processed through the State Grand Jury, the Division of Criminal Justice, Records and Identification Unit
  • If you’re seeking expungement of a juvenile record, the County Family Division

Once you receive the return receipts, you should call the court handling your expungement. Ask whether the Proof of Notice should be sent to the court before the hearing, or if you should bring it to the hearing. If you need to send them in before the hearing, you should follow the court clerk’s instructions.

Objections to Expungement

The parties listed above have the right to object to your expungement. They’ll review Expungement Petitions on a first come, first serve basis.

If anyone needs more time to review your file, they may ask the judge to move the hearing to a later date. It’s a good idea to call the court the day before your scheduled hearing to confirm it’s still on the calendar. Sometimes hearing dates change unexpectedly.

If someone does object, you or your attorney will usually get a letter explaining why they object. Sometimes the objector will appear at the hearing as well.

Some reasons for objections may include:

• Failure to disclose your entire criminal record
• Incomplete or inaccurate information
• Too many convictions or offenses on your record
• You were convicted of an offense not eligible for expungement
• The requisite waiting period hasn’t passed
• You have a pending criminal matter

An attorney can be extremely helpful in the case of objections. He or she can review the objection and determine the best way to address it. The appropriate response depends on the reasons for the objection and whether the prosecutor’s reasoning is accurate.

An objection also does not mean your expungement will be denied. But you do need a formal response. If you have an attorney, they’ll prepare the response for you. You also usually need to appear in court and answer questions from the judge. You may need to correct and re-serve your expungement paperwork as well.

If you take too long to respond to the objection and make any required corrections, the court may dismiss your expungement petition. This means you’ll have to start the entire process over.

If there are no objections, the judge will, in most cases, grant your expungement — sometimes without a hearing. If you get an expungement without a hearing, you (or your attorney) will receive a signed Expungement Order in the mail instead.

STEP 5: ATTEND YOUR HEARING (IF REQUIRED)

If you have a hearing, the judge will decide whether to grant your request for expungement at the hearing.

If you have an attorney, you usually don’t have to attend the hearing unless there’s an objection. If you don’t have to appear, you’ll have to make sure you submit all necessary paperwork (such as the Proof of Notice) before the hearing. If you have an attorney, they’ll help you prepare.

If you do have to attend, make sure you dress appropriately and arrive at least 15 minutes early. You should let the court clerk know when you arrive. Also remember to bring copies of all your paperwork.

STEP 6: DISTRIBUTE COPIES OF THE EXPUNGEMENT ORDER

If the judge grants your expungement, he or she will sign the Expungement Order. The Expungement Order will direct all New Jersey criminal justice and law enforcement agencies to remove and isolate your record from their databases. This means your expunged record will no longer appear on background checks.

Once you receive the Expungement Order, you’ll need to serve a copy of it on all the government parties involved with the expunged matter listed above in Step 4. You should send these copies by certified mail, return receipt requested.

Once the New Jersey State Police receives the Expungement Order, they’ll remove the records from their database. They’ll also send an electronic notice of the expungement to the FBI. The FBI maintains the federal National Crime Information Center (NCIC). NCIC is a central database linked with federal, state, and local agencies.

When the FBI receives the notice of expungement, it’s required under federal law (28 C.F.R. 16.34) to update its records accordingly. This means that the FBI will no longer report the existence of your expunged record.

Once the State Police has finished removing and isolating your record, they will send a letter confirming the process is complete. This typically occurs in 90-120 days. You should not assume your record was successfully expunged until you’ve received this confirmation letter.

If you want to verify that the FBI has expunged your record, you can request an FBI criminal history check as described above in Step 1. But keep in mind that the FBI may have also shared information about your record with other federal agencies before expungement. This may include the Department of Homeland Security and Immigration and Customs Enforcement.

The law requiring the FBI to adjust its records doesn’t cover other federal agencies. And it’s not likely that these agencies would follow a New Jersey Expungement Order. You should assume that such agencies will keep any record of your arrest or conviction. See Chapter 1: What is Expungement? — Future Uses of Expunged Records for more information about future uses of your expunged record.