Drug Court Expungements & The Public Interest: Part 2

by | Sep 3, 2017 | Blog, Criminal Law, Drug Crime, Law Reform and Amendments, Monmouth County, Ocean County

We add that the public interest showing, based on the statute’s plain language, pertains only to convictions described in N.J.S.A. 2C:52-2(c)(3). If the person meets the public interest test regarding an identified third- or fourth-degree conviction, then his or her records do not include a conviction “barred from expungement” under N.J.S.A. 2C:52-2(b) or -2(c). The court is not required to find that it serves the “public interest” to grant the expungement of other convictions, if the Drug Court graduate is otherwise eligible. The Legislature has made that judgment, although the court may still deny relief if “it finds that the need for the availability of the records outweighs the desirability of having the person freed from the disabilities associated with their availability.” N.J.S.A. 2C:35-14(m)(1). Here we see a catch-all provision that the prosecution and/or Court can always use to object to or deny an expungement application. This provision is significant because even if the basis for the denial is weak, appeals cost a significant amount of time and money. Therefore, even a weak rationale will often be enough to thwart expungement applicants’ efforts.

The legislative history does not expressly address the issue presented on appeal. However, the Legislature evinced no intent to weaken the barriers to expungement set forth in N.J.S.A. 2C:52-2(b) and -2(c). The Drug Court expungement statute was originally embodied in a free-standing bill that authorized “automatic expungement” of Drug Court graduates’ criminal records. See Assembly Bill No. 471, 216th Legislature (Jan. 16, 2014); see also Senate Bill No. 552, 216th Legislature (Jan. 14, 2014). The original bill was considerably narrower than the one enacted. It applied only to first-time criminal offenders, and only to the conviction leading to the Drug Court sentence. It compelled expungement, provided that, “[t]he conviction is for a crime not included in the list of crimes that may not be expunged as provided in subsections b. or c. of N.J.S.A. 2C:52-2.” Assembly Bill No. 471, supra, at § 1. The sponsor’s statement explained that expungement was not available for “certain convictions for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell.” Statement to Assembly Bill No. 471 at 14-15 (Jan. 16, 2014). It specifically stated, “the conviction cannot be for any of the crimes that are ineligible for expungement under subsections b. and c. of N.J.S.A. 2C:52-2.”