Can My Expungement Be Denied in NJ?

Expungement is the process of sealing records and effectively deleting them so that they do not show up on background checks anymore. This can give you a clean slate when it comes to a criminal record, helping you move on from your past. But is expungement a surefire process? Are there ways you could be denied expungement?

First, there are certain crimes that simply are not eligible for expungement, requiring denial. This includes most traffic offenses – including DWIs and reckless driving. Second, there are certain combinations of criminal records that cannot be expunged, so if your record is too big, expungement might not be allowed. Third, expungement is always up to the court to decide; there is nothing automatic about having a conviction expunged, and it can be denied by a judge.

For help with your expungement, contact Lombardo Law Group’s Atlantic City, NJ expungement lawyers at (609) 418-4537.

Can You Expunge DWI/DUI Convictions in New Jersey?

We will start off with a common reason for denial: only “criminal” offenses can be expunged, and traffic offenses are not expungable. Instead, all traffic offenses must stay on your record, meaning that DWI/DUI offenses cannot be expunged, and neither can things like reckless driving. However, this might not be as big of an issue as you might expect.

First, our lawyers can help you fight DWI/DUI charges in the first place, preventing them from ever appearing on your record as a conviction. Because only convictions are part of a criminal record search, this means you will not face any future negative consequences because they did not actually convict you of DWI.

Second, DWI/DUI convictions are primarily used by insurance companies, employers in driving jobs, and others who need to certify your driving skills. If you are not applying to work as a driver and do not need a background check that specifically includes DWIs, the fact that DWI is not a criminal offense might mean it wouldn’t show up on a “normal” background check anyway.

Additionally, having a history of DWI/DUI on your record only matters for sentencing second or third and subsequent DWI/DUI charges. If you are not arrested for another drunk or drugged driving encounter, then this will not affect you going forward. Additionally, even though they remain on your record, a previous DWI/DUI conviction cannot be used to upgrade a repeat conviction if the previous conviction was more than 10 years ago.

What Criminal Charges Cannot Be Expunged in NJ?

Expungement is usually reserved for minor or lesser crimes. Unsurprisingly, this means that our NJ expungement lawyers usually cannot get your record expunged for serious crimes.

The most serious crimes in NJ are not eligible for expungement at all, including things like murder, kidnapping, human trafficking, sexual assault, endangering the welfare of children, child pornography charges, terrorism, robbery, and arson. There may also be other specific subtypes of these crimes that we did not list, but the principle is the same: serious crimes of violence, crimes involving sexual assault, and crimes involving children usually have to remain on your record.

Aside from these interpersonal crimes, many drug crimes cannot be expunged. The exception to these is crimes for small amounts of marijuana or hashish that would now be legal under NJ’s marijuana laws. Not only are these charges expungable, but they may even have additional exceptions allowing them to be expunged even if you do not otherwise qualify for expungement, given that the conduct is not a crime anymore.

Lastly, crimes involving the abuse of a public office are not expungable. This obviously applies to a very small cross-section of society, but the reasoning behind this is that we should always be able to tell when public officers and officials have abused their office and betrayed public trust.

You should always check the law or consult with a lawyer before applying for expungement, as filing a petition for expungement for a crime that cannot be expunged is a waste of your own time and the court’s time.

Combinations of Offenses that Cannot Be Expunged in NJ

To qualify for potential expungement, you need to have a relatively small criminal record. As such, you cannot get expungement if your record includes certain combinations of past offenses.

To help you understand this, we first have to go over the levels of crime in NJ. Instead of calling serious offenses “felonies,” we use the term “indictable crimes” or “indictable offenses,” which are broken down into four degrees (“first” through “fourth” degree). “Misdemeanors” are instead called “disorderly persons offenses,” for which there is one level. Lesser offenses are called “petty disorderly persons offenses,” and are of a similar seriousness to local ordinance violations or traffic tickets. People convicted of offenses as juveniles generally face the same rules for expungement, but most juvenile records are sealed upon turning 18 anyway.

If you only have ordinance violations and no more than two disorderly persons or petty disorderly persons offenses, you can get your ordinance violations expunged after 2 years.

If you only have one petty disorderly persons or disorderly persons offense on your record, you can also apply for expungement. With more, you may still be able to apply as long as you have five max or you have more than five but they all came out of the same events or you were convicted on the same day.

To expunge a record that includes indictable crimes, you typically can apply if you only have one indictable crime or one indictable and up to three disorderly persons or petty disorderly persons offenses, again with exceptions that account for the fact that sometimes these stem from the same events.

Finishing Out Sentences Before Expungement

Expungement can also be denied if you have not waited long enough or finished out all sentences. There is usually a 5-year wait (or 2-year wait for minor offenses), and you need to have served all jail, prison, or probation time and paid off all fines to apply. You may be eligible for certain exceptions if you paid substantially but not 100%.

Judge Denials

Judges have to hear your petition for expungement, and they might be able to deny it for various reasons not specifically listed. If there is a hearing, you should have a lawyer represent you during the hearing, as problems with your presentation of information might see your petition denied even if it would otherwise be eligible, requiring you to go through the process of refiling.