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DOES THIS MEAN THAT I WILL HAVE A CRIMINAL RECORD?

By Glenn D. Kassman, Esq. New Jersey Defense Lawyer

Introduction

Most people know that being convicted of speeding doesn't give you a criminal record and that being convicted of armed robbery does. But what about everything in between? What about driving while intoxicated? Is that a crime? What about simple assault? How about a violation of a municipal ordinance, such as Howell Township's Chapter 208, Section 7, which concerns prohibited noises, or Chapter III, Section 14 of the Code for the Borough of Lavallette, which forbids the consumption of alcoholic beverages by individuals under twenty-one? Are these crimes? Assuming they are not crimes, is there still a record of them created, such that a prospective employer might find out about them if he runs a background check? If there is a record, is there a way to get that record erased, so that it doesn't hurt a young person's chances of getting into college? What if someone is arrested, but later acquitted of the charge? Is there still a record of the arrest? This article answers questions such as these and many others. It is intended to help people who are charged with or convicted of certain offenses in New Jersey better understand their options, so that they can minimize or even eliminate the possibility that these offenses may adversely affect them in the future.

What is a crime?
Many people are familiar with the terms "felony" and "misdemeanor" and understand that offenses in the former category are generally more serious than those in the latter. Unfortunately, however, such distinctions are unhelpful in determining what constitutes a crime in New Jersey, not only because these terms do not draw a bright line between offenses that are crimes and those that are not (all felonies are crimes, but so are many misdemeanors), but also because New Jersey law does not use the felony-misdemeanor terminology at all. Instead, in New Jersey, crimes are designated as first, second, third or fourth degree. "Lesser offenses" (i.e., offenses that are not crimes) are distinguished from crimes based on the amount of time it is possible for a person to spend in prison if he or she is convicted of the offense. In New Jersey, if it is possible for a person convicted of an offense to spend more than six months in prison, that offense is a crime. Anyone charged with a crime in the United States is entitled indictment by a grand jury and to a trial by a jury, whereas a person charged with a lesser offense is not entitled to either of these. In New Jersey, crimes are also often referred to as "indictable offenses."

Lesser Offenses
Lesser offenses can be divided into three categories: motor vehicle or traffic offenses; disorderly persons or petty disorderly persons offenses; and municipal ordinance violations. With rare exception, in New Jersey, all of these lesser offenses are handled in municipal court, sometimes incorrectly referred to as "traffic court," while crimes are handled in superior court for the county in which the offense allegedly took place. If a defendant is charged with both crimes and lesser offenses coming out of the same incident, at least initially, everything will be handled in superior court. Once the indictable offenses have been resolved in superior court, if there are still lesser offenses that remain (i.e., that have not been dismissed or resolved in superior court as part of a plea bargain), these charges are sent back or "remanded" to the municipal court for the municipality in which they took place.
Is DWI a crime?
Although in most states driving while intoxicated is considered a crime, in New Jersey it is not; it is a motor vehicle offense. This distinction is important to note, because a person convicted of drunk driving in New Jersey who is asked, on a job application, for example, whether he has ever been convicted of a crime can truthfully answer no to the question at least as it concerns to his DWI conviction. On the other hand, it is also important to know that because convictions for motor vehicle offenses do not qualify for an "expungement" (see below), a record of a drunk-driving conviction will remain on a New Jersey driver's motor vehicle abstract forever.
Disorderly Persons Offenses
The second category of so-called lesser offenses are what New Jersey calls disorderly persons offenses and petty disorderly persons offenses. Although these offenses are not crimes, they are sometimes confusingly referred to as "criminal offenses" because they are included in New Jersey's Criminal Code. The maximum penalty for a disorderly persons offense is six months in jail and a $1,000 fine. The maximum penalty for a petty disorderly persons offense is thirty days in jail and a $500 fine. Common disorderly persons offenses or "DPs" include simple assault, shoplifting and resisting arrest. Common petty disorderly persons offenses or "PDPs" include harassment and disorderly conduct.
Municipal Ordinance Violations
The third category of lesser offenses are violations of local laws known as municipal ordinances. These are laws that apply only within the boundaries of a particular city, township, borough or village. New Jersey has a total of 566 municipalities. The maximum fine that may be imposed for violating a municipal ordinance is $2,000. Although a term of imprisonment for violating a municipal ordinance is rare, a sentence of up to 90 days in jail is permissible. Up to 90 days of community service may also be imposed.
How can I get my criminal record erased?
Criminal records can have a negative effect on a person for many years because they are accessible to prospective employers, academic institutions, licensing boards, creditors and other organizations should they choose to conduct background checks. In New Jersey, even if a person is arrested and charged with a crime or a lesser offense and is later acquitted of the charges or the charges are dismissed, there is still a record made of the arrest unless all of the charges are motor vehicle offenses. There will be a record of the arrest even if the charge is violating a municipal ordinance. In fact, even when someone is arrested on charges that are later dismissed because he or she successfully completes a probationary program such as Pre-Trial Intervention ("PTI") or a Conditional Discharge, a record of the arrest remains.
Criminal records can not be erased, but they can often be expunged. This means that they are isolated—moved to a different location, so that they are only accessible in certain specific situations, such as when a person applies for a job in law enforcement or seeks employment in the court system. To obtain an expungement, a document called a petition for expungement must be filed in the superior court in the county in which the offense sought to be expunged took place and all pertinent federal, state and local law enforcement agencies must be notified that the person seeking the expungement, called the petitioner, is seeking to have records expunged. These law enforcement agencies can then object to the expungement (they rarely do) if they have a legitimate legal reason for doing so. If there is no objection, you can usually get the expungement without appearing in court. Because the rules for how to obtain an expungement and under what circumstances you may be entitled to one are complicated, it is best to contact an attorney. Glenn D. Kassman will be happy to speak with you free of charge about whether you qualify for an expungement and to discuss the process involved in obtaining one.

[Sidebar Chart #1]
Types of "Offenses" in New Jersey
Description Maximum Penalty
Crimes ("Indictable Offenses")
First Degree 20 years in prison
Second Degree 10 years in prison
Third Degree 5 years in prison
Fourth Degree 18 months in prison

"Lesser Offenses"
Motor Vehicle Offenses 180 days in county jail
Disorderly Persons Offense 180 days in county jail
Petty Disorderly Persons Offense 30 days in county jail
Municipal Ordinance Violation 90 days in county jail
______________________________________________________________________________

[Sidebar Chart #2]

Expungement Timetable

Type of Conviction Time Since Conviction To
Be Eligible for Expungement

Indictable Offense 10 years

Disorderly Persons or Petty
Disorderly Persons Offense 5 years

Municipal Ordinance 2 years

Arrests not resulting
in conviction Immediate

Arrests where charges are
dismissed due to successful
completion of probationary
program Six months from date of dismissal
State v. Doyle, 42 N.J. 334, 348 (1964).
N.J.S.A. 2C:1-4a.
See State v. Dively, 92 N.J. 573, 585 (1983).
U.S. Const., Amend. V
Duncan v. Louisiana, 391 U.S. 145 (1968).
N.J.S.A. 2C:1-4b.
See State v. Nemesh, 228 N.J. Super. 597, 607 (App. Div. 1988) (citing "Right to Trial by Jury in Criminal Prosecution for Driving While Intoxicated or Similar Offenses." 16 A.L.R.3d 1373 (1967).
State v. Hamm, 121 N.J. 109, 112 (1990); State v. Hammond 118 N.J. 306 (1990).
See N.J.S.A. 2C:52-28.
N.J.S.A. 2C:43-8; N.J.S.A. 2C:43-3c.
N.J.S.A. 2C:43-8; N.J.S.A. 2C:43-3d.
Wikipedia.
N.J.S.A. 40:49-5.
Id.
Id.
See N.J.S.A. 2C:52-28.
See N.J.S.A. 2C:52-27c.
See N.J.S.A. 2C:52-7.
See N.J.S.A. 2C:52-10.
Homicide and certain other first degree offenses can involve prison sentences of more than 20 years.
For a third or subsequent DWI conviction. N.J.S.A. 39:4-50.

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