The expungement statute and the law surrounding an expungement in New Jersey is often complex and confusing. The law is clear, however, about the policy behind an expungement. Under New Jersey law, expungements are about "providing relief to the one time offender who has led a life of rectitude and [has] disassociated himself [from] unlawful activity." N.J.S.A. 2C:52-32.
Despite the clear purpose of expungement law in New Jersey, the application of the law is often much less clear. That is certainly so in cases involving the distribution, sale and possession with intent to distribute controlled dangerous substances.
Can I Expunge a Distribution Conviction in New Jersey ?
Under New Jersey law the answer to the question "can I expunge a distribution conviction" is yes and no. In the case of a conviction for the sale, distribution or possession with intent to sell a controlled dangerous substance (an illegal drug), such individuals are generally not eligible for an expungement. There are exceptions to this rule. Assuming an individual convicted of the sale, distribution or possession with intent to sell a drug otherwise meet the requirements of an expungement, such an individual is eligible for an expungement provided:
1. the sale, distribution or possession with intent to sell involved marijuana where the total quantity of marijuana was 25 grams or less; or
2. where the sale, distribution or possession with intent to sell involved hashish where the total quantity involved was 5 grams of hashish or less.
In New Jersey, there is also another situation where a conviction for the sale, distribution or possession with intent to sell a controlled dangerous substance may be expunged. As long as the individual seeking the expungement is otherwise eligible for an expungement, New Jersey also allows any third or fourth degree indictable (felony) conviction for the sale, distribution or possession with intent to sell drugs to be expunged. However, in this last category of crimes, the court must specifically find that the expungement is consistent with the public interest giving due consideration to the nature of the offense and the applicant's character and conduct since his conviction.
Can I expunge a Possession with Intent to Distribute Conviction in New Jersey?
This is where the law gets more tricky. The expungement statute in New Jersey specifically bars expungement of a conviction for possession with intent to sell except in the situations outlined above. The expungement statute does not bar expungement of a conviction for possession with intent to distribute. Under New Jersey law, the charge of "possession with intent to sell" is rarely used. It is much more common in New Jersey to charge "possession with intent to distribute." The law defines the term "distribute" more broadly than the term "sell" in New Jersey. For example, an individual that intends to give drugs to another as a gift is possessing drugs with the intent to distribute without a sale under New Jersey law. An individual that intends to sell drugs to another is possessing drugs with the intent to sell.
In New Jersey, courts are instructed to look at the facts underlying a conviction for possession with intent to distribute drugs in order to determine whether the drugs were possessed with intent to distribute with the intent to sell or not. If the intent was to sell the drugs then expungement is barred except for the situations outlined in the previous section of this article. If the intent was to distribute the drugs without a sale, assuming the applicant is otherwise eligible for an expungement, the expungement is not barred.
Keep in mind that nothing contained in this article should be considered legal advice. The law can and often does change. If you have a specific legal issue or problem, consult an attorney. If you have been arrested for any criminal charge in New Jersey and need professional advice, call or email one of the criminal defense attorneys at Brickfield & Donahue at (201) 488-7707 to set up a free case evaluation and consultation. Both Joseph R. Donahue and Paul B. Brickfield are Certified by the New Jersey Supreme Court as Criminal Trial Attorneys and both lawyers have extensive experience in State, Municipal and Federal Courts throughout New Jersey.