Drug Court Expungements & The Public Interest: Part 1

On August 1, 2017, a three judge Appellate Division panel decided the case of I.M.O. of the expungement of the arrest/charge records of T.B., J.N.-T., R.C. The panel included former Monmouth County Criminal Presiding Judge Vernoia. The principle issue before the Court was whether Drug Court graduates who seek expungement under N.J.S. 2C:35-14(m) are required to make the “public interest” showing that is mandated for those seeking expungement of certain third and fourth degree offenses under N.J.S. 2C:52-2(c)(3).

The Court held in relevant part: We are persuaded that a court may grant a Drug Court expungement of a record that includes a conviction for a third- and fourth-degree CDS offense, as described in N.J.S.A. 2C:52-2(c)(3), only if the applicant makes the public interest showing. “The general rule is that when a statute incorporates another by specifically referring to it by title or section number, only the precise terms of the incorporated statute as it then exists become part of the incorporating statute.” By referring to “any offense barred from expungement pursuant to subsection b. or c. of N.J.S.A. 2C:52-2,” N.J.S.A. 2C:35-14(m)(2), the Drug Court expungement statute expressly imports the offenses that bar expungement under N.J.S.A. 2C:52-2(b) and -2(c).

Although Chapter 52 does not absolutely bar expungement of the identified third- and fourth-degree CDS offenses, the bar exists, but for two exceptions. The first exception covers offenses involving small quantities of marijuana and hashish. See N.J.S.A. 2C:52-2(c)(1) and (2). Of principal concern in this appeal, the second exception involves CDS convictions “of the third or fourth degree, where the court finds that expungement is consistent with the public interest, giving due consideration to the nature of the offense and the petitioner’s character and conduct since conviction.” N.J.S.A. 2C:52-2(c)(3).

Generally, exceptions are “strictly but reasonably construed” with any doubts “resolved in favor of the general provision.” Where a general provision in a statute has certain limited exceptions, all doubts should be resolved in favor of the general provision rather than the exceptions.” Therefore, unless and until the exception is satisfied, the “conviction is for an offense barred from expungement pursuant to subsection b. or c. of N.J.S.A. 2C:52-2.” N.J.S.A. 2C:35-14(m)(2).