Drug Court Expungements and Out-of-State DUIs (Part 2)

The Law Division continued in relevant part: While in the Vicinage XV Drug Court Program, petitioner here successfully moved through all four phases of the program. He successfully completed a course of substance abuse treatment, gained employment and was substance free for at least one year prior to his graduation from the program. As conceded by the Assistant Prosecutor at oral argument, there were no other bars to petitioner’s application for expungement asserted by the Prosecutor other than the out of state conviction for driving while intoxicated. When examining petitioner’s application against the rationale of T.B., it is clear that petitioner’s application for expungement must be granted. As indicated by the Court, the law directs that judges “shall grant” expungement unless the need for availability of the records is outweighed by the benefits of expungement or the person is otherwise ineligible. There is therefore a presumption that expungement should be granted.

The law also places the burden upon the Prosecutor to come forward with disqualifying convictions or other factors which would somehow bear upon public safety. Here, the Pennsylvania DUI conviction is not a statutory bar to this drug court graduate’s expungement. Such an offense, under the laws of the State of New Jersey, does not constitute a crime, disorderly persons or petty disorderly persons offense. N.J.S.A. 2C:1-4. The State has not presented any factors that demonstrate that petitioner, a graduate of the drug court program, is a public safety risk.

In light of petitioner’s completion of the rigorous monitoring program “that is the hallmark of drug court” as well as the policy favoring expungement of successful graduates, T.B., this court will grant the application of J.S. and enter an order expunging the whole of petitioner’s past criminal record.

This decision could also be helpful to traditional expungement applicants. An out-of-state DUI can also bar expungement if the foreign state considered the DUI to be a crime punishable by more than a year of incarceration. This decision, coupled with a change in expungement policy that favors the granting of expungements could be a basis to overturn precedent that pre-dates the change in legislative policy.