Interviewer: Do the prosecutors ever try to argue or block an expungement? Is there a fight really?
Lauren Scardella: No. If a client meets all the criteria and hasn’t been convicted of anything that’s excluded, then they’re entitled to an expungement. The only time the prosecutor has anything to say is if we leave something out. The amended statute, which became law in April 2016, allows people to apply for an expungement of an indictable offense five years after the end of either their term of incarceration or probation or parole or for the expungement of up to three disorderly persons offenses three years after the date of their most recent conviction, payment of fine, release from probation or parole or release from incarceration. That is where the prosecutor’s office might come up with some sort of substantive objection. Something more than just “you left something out,” because that’s where the petitioner who wants the expungement needs to demonstrate to the court that they are somebody who deserve to have this benefit of having their record expunged early. If the prosecutor’s office doesn’t think that the person is worthy, they’ll make an argument to the judge.
There is No Cutoff Point in the Process of Expungement
Interviewer: What if it’s been years and years? Is there some sort of cutoff point to expungement?
Lauren Scardella: It’s still on your record and you could have it expunged if you’re eligible. It doesn’t ever disappear on its own.
Interviewer: Is there a cutoff point where they won’t allow me to have it expunged anymore?
Lauren Scardella: No. Any time after you’re eligible is okay.
People May Forget About a Conviction and Realize Later in Life the Necessity to Have it Expunged
Interviewer: Do you ever get people that come in that are older age individuals and they say “I have something a long time ago and I want to check if I can get it expunged from my record?”
Lauren Scardella: It does happen occasionally. People forget or they don’t realize that later in life, they might have a need to keep it from being exposed, whether that may be an employer or a professional licensing agency or something along those lines. There are definitely times when people all of a sudden realize they don’t really want anybody to have access to it.
A Traffic Infraction Cannot be Expunged in the State of New Jersey
Interviewer: What about a traffic infraction like speeding? Are those going to be on someone’s record? Could this be waived or expunged somehow?
Lauren Scardella: New Jersey keeps criminal histories and driving histories separate and nothing can ever be expunged from the driving history. One of the reasons that becomes a problem for people is that DWI is a traffic infraction. In New Jersey, it’s not criminal which means it cannot ever be expunged. If you get convicted of a DWI, it’s always going to be on your driving history. The other side of that is it’s not on a criminal history, so while it can’t be expunged if, somebody is not looking at your driving history, they may never find out.
Interviewer: And that’s what I was going to ask a DWI is something that you cannot get expunged under any circumstances, correct?
Lauren Scardella: Not under any circumstances.