The availability of an expungement for a drug offense depends on the type of drug, the quantity of the drug, the degree of the conviction, and whether the conviction was for simple possession or was for a sale or distribution charge or possession with intent to distribute.
Marijuana Offenses (Expungeable under 2C:52-3 and 2C:52-2(a)(1)
- Expungements Immediately Available. If you were convicted or adjudicated delinquent as a juvenile of a Disorderly Persons Offenses under 2C:35-10a4 (possession of under 50 grams of marijuana) or 2C:36-2 (possession of drug paraphernalia), or 4th Degree Indictable Offenses under 2C:35-5b12 (possession of under 1 oz of marijuana), 2C:35-7 (distribution or possession with intent to distribute less then 1 oz of marijuana in a school zone, or 2C:35-7.1 (distribution or possession with intent to distribute less then 1 oz of marijuana in a public housing or public park zone) you are immediately eligible for expungement and can file it immediately so long as you have been released from custody, satisfactorily completed probation or parole, and have paid all court ordered financial assessments.
- Expungements with a Three Year Waiting Period. If you were convicted or adjudicated delinquent as a juvenile of 3rd Degree Indictable Offenses under 2C:35-5b11 (distribution of or possession with intent to distribute marijuana between 1 oz. and 5 lbs. you are eligible to file for expungement three (3) years after the later of the time you been released from custody, satisfactorily completed probation or parole, and have paid all court ordered financial assessments.
- Relief for Non-Payment of Fines with Civil Judgement. If you have met the three (3) year requirement for everything other then paying your court ordered financial assessments and the court finds that the reason for the non-payment was something other then willful non-compliance, then the Court will grant the expungement, but, will enter a civil judgment against you in favor of the New Jersey Department of the Treasury.
- Relief for Non-Payment of Fines without Civil Judgement. If you have met the three (3) year requirement for everything other then paying your court ordered financial assessments and the Court finds you substantially complied with the court ordered payment of financial assessments or could not do so due to compelling circumstances affecting your ability to pay (defined as considering the amount of the financial assessments imposed, your age at the time of conviction, your financial condition, and other relevant information regarding your ability to pay), then the Court will grant the expungement without entering a Civil Judgement against you.
- Offenses not Eligible for Expungement. Convictions under 2C:35-5 (10) for 2nd degree Distribution or Intent to Distribute Marijuana (more then 5 lbs but less then 25 lbs) and 1st degree (More then 25 lbs.) are not expungeable offenses.
Other Drug Offenses such as Heroin, Cocaine, Esctasy, LSD, and Methamphetamine
- Possession of CDS (Heroin, Cocaine, Esctasy, Meth, and LSD) are 3rd degree offenses under 2C:35-10 and can be expunged after five (5) years under the normal Indictable Conviction Expungement Statute (2C:52-2a). [Click here to go to the Indictable Expungement page]
- Heroin, Cocaine, Esctasy and Meth distribution or possession with intent to distribute convictions which are 3rd Degree Offenses (2C:35-5(3)) (those involving quantities of under one-half (1/2) oz.) may be expunged under 2C:52(c). The same holds true for 3rd degree convictions of 2C:35-5(13) involving Esctasy. This type of expungement may be difficult to obtain as it requires the court to make a finding that the person seeking the expungement has demonstrated “compelling circumstances” as to why the expungement should be granted. This is a showing more difficult then the previous test of “in the public interest.”
- Heroin, Cocaine, Esctasy and Meth distribution or possession with intent to distribute convictions which are 1st degree offenses under 2C:35-5(b)(1), five oz. or more, or 2nd degree offenses under 2C:35-5(b)(2), one-half (1/2) oz. or more but less then 5 oz., cannot be expunged at all.
- Lysergic acid diethylamide (LSD) distribution or possession with intent to distribute under 2C:35-5(6) and (7) are crimes of the 1st and 2nd degrees and cannot be expunged at all.
Special Treatment for Marijuana Offenses in the Expungement Statute
- For the purposes of determining eligibility for Expungement, 3rd degree crimes of Distribution or Possession with Intent to Distribute Marijuana of one (1) oz. or more but less then five (5) lbs. under 2C:35-5b11, or 2C:35-7 (distribution or possession with intent to distribute less then 1 oz of marijuana in a school zone, or 2C:35-7.1 (distribution or possession with intent to distribute less then 1 oz of marijuana in a public housing or public park zone) or 4th degree charges for or Possession with Intent to Distribute Marijuana of less then 1 oz. under 2C:35-5(12), are no longer considered Crimes or Indictable Convictions, but are counted as Disorderly Persons (DP) Offenses. What this means is that if you were convicted of two Indictable crimes and one of them was for one of these offenses, you would only be considered to have one Indictable conviction.
- For the purposes of determining eligibility for Expungement, Disorderly Persons drug offenses such as Possession of Marijuana under 50 grams, 2C:35-10a4, or Possession of Drug Paraphernalia, 2C:36-2, or equivalent charges such as being under the influence of or failing to make proper disposition of Marijuana are not counted at all in determining the number of Disorderly Persons offenses a person has.