correct size blogThis is the 3rd in a series of posts which focus on particular sections and provisions of interest to local governments in S2703, legislation which will legalize the adult use of recreational cannabis.

In addition,  please see Part I on local taxation and Part II on Part II on Local Regulations and Ordinances.

On March 25, legislators were set to vote on S-2703, which would legalize the adult use of recreational cannabis. However, after it appeared that there were not enough votes to approve the bill, legislative leaders called off the vote.  While no vote took place as intended, Governor Murphy continues to make a push for marijuana legalization.  And, reports have the Governor setting a May deadline for a vote on recreational cannabis before he takes executive action to expand medical use.

With the recreational cannabis not going away though currently  stalled, we continue our examination of the proposed legislation.  In this 3rd installment of our series of posts the expungement provisions of the bill are reviewed. Please note that our review is based on the bills as currently drafted and are subject to change prior to being brought for a full vote.

Section 44 through 51, Expungement, Pages 123-134.

Link: https://www.njleg.state.nj.us/2018/Bills/S3000/2703_U1.PDF

Section 44 – Dismissal of Small Amount of Marijuana and Hashish Cases

This portion of the bill would dismiss all matters currently within the court pipeline, related to small amounts of marijuana or hashish.  This is achieved by removing all jurisdiction from all courts over any charge, including any charge of delinquency, based on a violation of the certain laws occurring prior to the passage of the bill.  These certain laws include:

1)      NJSA 2C:35-5(b)(12) – Manufacturing, Distributing, or Dispensing any amount of marijuana less than 5 pounds and any amount of hashish less than a pound.

 

2)      NJSA 2C:35-10(a)(4) – Possession, use or being under the influence, or failure to make lawful disposition of any amount of marijuana or hashish.

 

3)      NJSA 2C:36-2 – Use or possession of drug paraphernalia related to marijuana or hashish

These non-prosecutable charges and cases shall be expeditiously dismissed, either by appropriate action by a law enforcement agency, or on a motion to the court with jurisdiction over the case, or the courts own motion, based upon guidelines or directives issued by the Attorney General and the Administrative Office of the Courts.

Section 45 – Arrests, charges, convictions, and adjudications of delinquency, deemed not to have occurred.

This provision of the bill provides for what has been termed, “virtual expungements.”   Since there is no automatic expungement provided for in the bill, this section is intended to provide an alternative.   It authorizes anyone convicted of marijuana related crimes the legal authority to act as though those matters never occurred.  This would include legal documents such as those for loans, job applications, and others.

This section requires that all previous, non-violent arrests, charges, convictions, and adjudication of delinquency that occurred prior to the effective date of the bill for:

  • Manufacturing, Distributing, or Dispensing any amount of marijuana less than 5 pounds and any amount of hashish less than a pound,
  • Possession, use or being under the influence, or failure to make lawful disposition of any amount of marijuana or hashish, or
  • Use or possession of drug paraphernalia related to marijuana or hashish,

shall be deemed not to have occurred and the person involved with that violation may answer any questions relating to their occurrence accordingly.  There is an exemption however which requires such information be revealed when seeking employment with the judicial branch or with a law enforcement or corrections agency.

Concerns have been raised about expungements for offenses up to 5 pounds.   It is our understanding that this is because a 3rd degree offense includes possession from anywhere from one ounce to five pounds.    So, an offense may not indicate the amount that was found on a person, but is rather identified as a 3rd degree offense.

Section 46 & 47 – Impact of previous convictions for now lawful activity on qualification to submit an application for expungement for indictable offenses; and disorderly persons or petty disorderly persons offenses.

An overview of the expungement process is necessary before fully understanding the impact S-2703 would have on applications for expungement.  Generally speaking an individual who has been convicted of an indictable offense can seek to have their record expunged after a period of six years from the time of their most recent conviction. The applicant for expungement must also have kept out of trouble with the law.  The person does not have to be perfect to seek expungement but having too many prior or subsequent convictions for crimes and/or disorderly or petty disorderly persons offenses may prohibit eligibility for expungement.

In essence, what S-2703 would do is redefine certain crimes to now to be considered disorderly person offenses, and would consider convictions for certain disorderly person offenses to no longer be considered a conviction.  This would in turn eliminate certain “strikes” for marijuana and hashish related offenses that would otherwise preclude an applicant from being eligible for expungement.

The following crimes or their equivalents in other jurisdiction shall no longer be considered a crime in NJ for purposes of seeking expungement; instead they are now downgraded to a disorderly persons offense.

  • Manufacturing, Distributing, or Dispensing any amount of marijuana less than 5 pounds and any amount of hashish less than a pound, including when these actions occurred within 1000 feet of a school zone or 500 feet of a public housing, public park, or public building.
  • Possession of more than 50 grams of marijuana or more than 5 grams of hashish.

The following, instead of being disorderly persons offenses, now, shall not be considered a conviction.

  • Possession of 50 grams or less of marijuana or five grams or less of hashish, use or being under the influence, or failure to make lawful disposition of any amount of marijuana or hashish.

Section 48 – Expedited Expungement

This section creates an expedited expungement process that can be used immediately without having to wait out the six year period or other waiting period otherwise provided for the expungement process. Those eligible for expedited expungement include any person charged with, convicted of, or a minor adjudicated as a delinquent for:

  • Manufacturing, Distributing, or Dispensing any amount of marijuana less than 5 pounds and any amount of hashish less than a pound including when these actions occurred within 1000 feet of a school zone or 500 feet of a public housing, public park, or public building.
  • Possession, use or being under the influence, or failure to make lawful disposition of any amount of marijuana or hashish, or
  • Use or possession of drug paraphernalia related to marijuana or hashish in connections with any of the above.

There is no fee for those seeking an expedited expungement.

After review of the application for expedited expungements the court would be required to immediately grant the expungement.

Further, expedited expungements would eliminate certain procedural requirements currently needed for expungements, including; a statement, and serving of notice on the law enforcement agency (including municipal police) involved with the associated arrest.

The county prosecutor may file an action with the court seeking to vacate an expedited expungement if filed no later than 45 days after the expungement order is issued. The expedited expungement can only be vacated upon proof shown by the county prosecutor that the expungement was issued in error due to other statutory disqualifications for expungement.

S-2703 provides for immunity both criminally and civilly, in addition to other immunity (i.e. Torts Claims Act) to any public employee or entity that provides information or records for any action made in good faith when participating or assisting with an expedited expungement.

Section 49 – Administrative Office of the Courts (“AOC”) to provide information on expungement practices.

The AOC would be required to provide information to any person on the expungement process and provide them with information on legal service programs within the state and in each county which may assist with the expedited expungement process.

Section 50 – Public Awareness Campaign

The AOC would be required to develop and maintain a multilingual public awareness campaign to promote the expedited expungement program and the electronic expungement system which it is also mandated to create.

Section 51 – Development and maintenance of a System for submitting Petition for Expungement, Electronically.

Within 9 months after the effective date of the bill the AOC would be required to create and maintain a system for petitioners to electronically file expungement petitions.

Parties who are required to be noticed whenever an expungement petition is filed (municipal law enforcement that made the arrest) would now be able to receive notice electronically.

Within one year after the implementation of the e-filing system, the AOC would be required to issue a report with possible recommendations or suggestions for improvement to the e-filing system or the expedited expungement program itself.

Contact:  Michael F. Cerra, Assistant Executive Director, mcerra@njlm.org, or 609-695-3481 x120,  or

Frank Marshall, Esq., fmarshall@njlm.org; 609-695-3481 x137.

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