Everyone wants to avoid a criminal conviction but even an arrest can derail a promising professional career and block a person’s path to future opportunities such as a dream job, acceptance into a specific academic, or training program. Our criminal defense law firm represents people in the expungement process in Pennsylvania and New Jersey. While the two states border each other, there are substantial differences between the expungement procedures in these two jurisdictions.
The only types of criminal charges that can be expunged in Pennsylvania are those that do not result in a conviction, either for a misdemeanor or felony offense.
In Pennsylvania you can’t expunge criminal convictions (a finding of guilt) in most situations. The only exception are summary offense convictions (i.e.: petty theft, underage drinking, etc.). While some diversion programs (ARD) permit an individual to receive an automatic expungement upon successful completion of the program, a person normally has to wait five (5) years to expunge a summary offense. This person must also must remain arrest free during that time.
Objections to Pennsylvania Expungements
The District Attorney’s Office for that county in Pennsylvania has the right to object to an expungment. If an objection is filed, the court will conduct a “Wexler Hearing.” See Commonwealth v. Wexler, 494 Pa. 325(1981). At a Wexler Hearing the burden is on the Commonwealth to prove, by clear and convincing evidence, that a record of the charges against the individual should be preserved. The court must balance the Commonwealth’s interest in maintaining against the individual’s interest in not having a criminal record. The burden of proof is less than the burden at a criminal trial which is beyond a reasonable doubt. At a Wexler Hearing the Pennsylvania court will consider the following factors:
- The strength of the Commonwealth’s case against the individual;
- The reason why the Commonwealth wants to maintain the arrest record;
- The individual’s age, employment history, and prior criminal record;
- The amount of time that has passed between the arrest and the individual’s petition for expungement; and
- Any specific consequences that the individual will suffer by having a criminal record (inability to find a job or maintain current job).
No Expungement for a Conviction in Pennsylvania
Convictions for felony and misdemeanor offenses are never eligible for an expungement in Pennsylvania but recently the Commonwealth created a record sealing law which allows a person to have criminal records sealed for certain non-violent misdemeanor convictions. Crimes that do not result in a conviction include situations where the charges are dismissed or withdrawn, as well as cases in which a person is found not guilty (acquitted) following a trial. While a person convicted of crime is not eligible for an expungement, this same person may qualify to have his or her record sealed.
Sealing Criminal Records in Pennsylvania
While the record sealing statute, 18 Pa.C.S.9122.1, doesn’t expunge criminal records it prevents the dissemination of criminal information about a person’s criminal record to anyone other than law enforcement and certain agencies. This would allow convicted persons opportunities that were otherwise out of their reach because of a minor criminal record. The most common offenses that fall under the law include first offense DUIs (drunk driving), possession of marijuana, possession of drug paraphernalia, certain thefts, and trespassing offense and even some firearm offenses. A person is only eligible to have their record sealed 10 years after completing his/her sentence, which would include probation, parole, or jail.
Again, this isn’t automatic; a person seeking to seal their record must file a petition with the Court of Common Pleas in the county where the guilty plea or verdict took place. Following that petition the DA’s Office, has 30 days to consent or object to it. The following people are not eligible under the Pennsylvania record sealing law:
- Those convicted of misdemeanors of the first degree
- A conviction under Megan’s Law (sex offender registration)
- Intimidation of a witness
- Retaliation against a witness
- Four or more misdemeanor offenses
- Ungraded misdemeanors punishable by two or more years in jail
Despite the sealing of a criminal record, the following agencies may request sealed records:
- Any licensing agency which issues professional occupational licenses having to do with law, medicine, teaching or nursing.
- Any agency involving or pertaining to children, youth, or the department of public welfare.
New Jersey Expungements
Like Pennsylvania, a person can have their New Jersey criminal record expunged if the charges were dismissed or withdrawn and did not result in a criminal conviction. A person is also eligible for an expungement if the charges were dismissed following the completion of a diversionary program, like a conditional discharge, dismissal, or pre-trial intervention (PTI), but this individual must wait 6 months from the dismissal date. Unlike Pennsylvania, however, a person convicted of a felony (indictable offense), may apply for an expungement 5 years after they have completed their sentence or term of probation. N.J. Statutes § 2C:52-2.
A New Jersey judge will order the expungement if the Court finds that it is in the public’s best interest to grant it. A person can avoid the need to demonstrate public interest if he/she waits 10 years instead of 5 years. The following crimes are not eligible for expungement following a conviction in New Jersey:
- Criminal homicide
- Luring or enticing
- Human trafficking
- Aggravated sexual assault
- Aggravated criminal sexual assault
- Criminal sexual contact
- Criminal restraint
- False imprisonment
- Endangering the welfare of a child
No Expungement for DWI (Drunk Driving) in New Jersey
Unlike Pennsylvania, and 47 other states, Driving While Intoxicated (DWI) is not a criminal offense in the Garden State. It is therefore not recorded on a criminal recorded but rather on a driving record with the Department of Motor Vehicle (DMV). Since it’s not a criminal offense, a person doesn’t have the right to a jury trial for a DWI in New Jersey. Also since its not considered a criminal offense, a conviction for DWI will not be entered into the National Crime Information Center (NCIC) Database.
No one will ever know that someone was arrested for DWI unless that investigator looks into the DMV records. While it’s not a criminal offense in New Jersey, a person convicted of DWI still faces the possibility of jail, a license suspension, ignition interlock, mandatory fines and court costs.
Drugs Crimes & New Jersey Expungements
Previously, a conviction for distribution of drugs or narcotics was not eligible for an expungement in New Jersey, but that rule has now been modified. Persons convicted of distribution of marijuana less than or equal to 25 grams, or any drug, if the conviction was a Third or Fourth degree offense, is eligible for expungement and one will be granted if the court finds that it is in the public’s best interest to do so. There is that same 5 – 10 waiting period.
Disorderly Person Offenses & New Jersey Expungements
Convictions for disorderly person’s offenses can be expunged after 5 years, provided that the person has not been convicted of a crime either before or after the disorderly offense conviction. Violations of local ordinances are also eligible for expungements (only 2 year waiting period N.J. Statutes § 2C:52-4) as long as the person has never been convicted before or after of a crime or a disorderly persons offense on two or more occasions. See N.J. Statutes § 2C:52-3.
Timing & New Jersey Expungements
After a petition to expunge a criminal record, a court must grant a hearing between 25-60 days after the filing. If the court grants an expungement order, the attorney must serve the order on the appropriate state agencies which may take several more weeks to expunge the record.
Getting an expungement done right in Pennsylvania and New Jersey is extremely important to a person’s long term success. A criminal record is not only a source of potential embarrassment but it could also cost a person a great job and a career! For more great information on criminal defense strategy and tactics, I encourage you to visit the free download section of the website and to sign up for our free newsletter!