Expungement of Criminal Record
An Expungement proceeding is used to petition the court to seal a record of a first-time offender’s criminal conviction. If a criminal record is expunged, for all intents and purposes the court proceedings surrounding the adult arrest or the juvenile situation are considered not to have occurred; the records are sealed at the state or federal level. In some cases the records are actually destroyed, but in other cases, the records are simply sealed. In cases where the expunged records are not destroyed, the records may still be available to law enforcement, to sentencing judges on subsequent offenses, and to corrections facilities to which the individual may be sentenced on subsequent convictions. Additionally not all states honor New Jersey’s expungement orders.
Victor Rotolo successfully argues before the NJ Supreme Court in a case of constitutional import, in which the Court ruled that a DUI conviction cannot be used in any later DUI case for sentencing purposes if, (1) the individual plead or was found guilty, and (2) the individual was not advised of his/her right to counsel and, as to indigent individuals, the right to assigned counsel.
While expungement deals with a prior criminal record, the process to petition for an expungement is considered a civil matter and, therefore, the matter is handled in the New Jersey Civil Court system.
The law recognizes that a minor who has been accused of criminal acts or ‘delinquent acts’ deserves a second chance – an opportunity to enter into his or her adult years without a ‘record.’ Therefore, expungement typically happens when the minor turns 17 or 18 years old. Expungements give an individual the legal right to state, even under oath, that the event never occurred.In New Jersey there are some convictions, however, that are not eligible for expungement and these include:
- Felonies and first degree misdemeanors in which the victim is under 18 years of age
- Sexual battery
- Corruption of a minor
- Sexual imposition
- Obscenity or pornography involving a minor
New Jersey statutes also require a number of eligibility requirements be met in order to proceed with an Expungement Petition:
- A waiting period must be met as follows:
- Indictable convictions: 10 years
- Disorderly offenses: 5 years
- Municipal ordinances: 2 years
The waiting period begins on the date of sentencing, or the date all fines are paid, or on the completion date of probation or parole, whichever occurs last, and all offenders are not eligible:
- There should not be any intervening incidents.
- Prior incidents cannot exceed a specific number.
- The nature of the conviction cannot be too serious.
- All sentence terms must be fulfilled completely.
- Proceedings cannot be pending.
- The incident must have been disposed without a conviction.
- Probation, if applicable, needs to have been completed without incident.
If you or a loved one are eligible for expungement, a Petition for Expungement must be prepared and filed in the Superior Court in the county the arrest or prosecution occurred. The Petition itself must be filed by the person seeking the expungement. A judge rules on whether or not the individual should be granted the request and an Expungement Order sets forth the judge’s decision.
Anthony Kearns, Victor Rotolo, and the Firm's attorneys at Kearns Rotolo Law can assess whether or not you are eligible to proceed with an expungement of your record. Do not hesitate to call for a free consultation.
Victor A. Rotolo has been included on the List of New Jersey Super Lawyers in the years 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018, 2019, 2020 and 2021, marking his sixteenth year of inclusion on this list. The list of New Jersey Super Lawyers is generated by the Thomson Reuters organization which employs the following methodology and set of standards to compile the list each year. Super Lawyers Selection Methodology [No aspect of this advertisement has been approved by the Supreme Court.]
Victor A. Rotolo is certified by the Supreme Court of New Jersey as a Civil Trial Attorney.
"A certified attorney is more than just an attorney who specializes in a particular area of law. A New Jersey attorney who is certified by the Supreme Court as a civil trial attorney must have:
- been a member in good standing of the New Jersey bar for over 5 years
- demonstrated a substantial level of experience in civil trial law
- been favorably evaluated by other attorneys and judges familiar with his or her work
- taken and passed a written examination in civil trial law."
Source: Supreme Court of New Jersey, Board on Attorney Certification, Brochure on Certified Civil Trial Attorney. See Rule 1:39: Specialty Certification of Attorneys.