Drug Court Expungements & The Public Interest: Part 4

The substitute also proposed to abolish the dual pathways to expungement under Chapter 52 – in which a person was presumptively entitled to expungement of an indictable offense after ten years, and eligible for expungement after as few as five years upon a public interest showing. Instead, persons would be presumptively entitled to expungement after five years, without a public interest showing. Assembly Committee Substitute, supra, at § 2; see also Assembly Judiciary Committee Statement to Assembly Committee Substitute, supra, at 2. The Governor ultimately conditionally vetoed the bill, proposing to strike the waiting period reduction for indictable offenses and restoring the dual pathways, which the Legislature then adopted. See Governor’s Conditional Veto Message to A. 206, 471, 1663, 2879, 3060 and 3108 (Jan. 11, 2016). The Governor endorsed the public interest showing for expungements after five years under Chapter 52, while approving the relief authorized for Drug Court graduates.

In sum, based on the plain language of the statute, and consistent with the legislative history, we conclude that a trial court may grant a Drug Court expungement to a person who has a third- or fourth-degree conviction for sale, distribution, or possession with intent to sell CDS (other than the specified marijuana and hashish-related crimes) only if “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).

The Appellate panel’s opinion relies heavily on interpreting the intent of the Legislature by looking to other provisions of the expungement statutes. However, these statutes are replete with anomalies. For example, if a defendant is convicted three times of the possession of a small amount of marijuana in municipal court, all three of those arrests and convictions can be expunged under N.J.S.A. 2C:52-3(b). However, if that same person has his first arrest diverted through the conditional discharge program and dismissed, is convicted of the second offense, and is never charged with a subsequent offense, the diversion would bar ever having the lone conviction expunged under N.J.S.A. 2C:52-14(f).