Many people with criminal records were arrested or convicted for drug-related offenses, from simple possession of marijuana to sale and distribution of cocaine and heroin. These offenses are commonly referred to as CDS (controlled dangerous substance) offenses. This article gives you guidance as to which CDS convictions can be expunged from your criminal record. You may find information on the waiting period associated with these offenses in other LSNJ articles and available resources.

Sale, Distribution, or Possession with Intent to Sell

• First or Second Degree. Sale, distribution, or possession with the intent to sell CDS in the first or second degree is not expungeable.
• Third or Fourth Degree. Sale, distribution, or possession with intent to sell CDS, of any kind, may be expunged if it is an offense of the third or fourth degree, but only if the court finds that expungement is in public interest, giving due consideration to the nature of the offense and the applicant’s character and conduct since the conviction.

To determine the nature of the offense, the court may review the details and circumstances of your offense including its definition, grade, and elements. Courts may also consider undisputed or proven facts about the crime and its commission including details about what you did, how you acted, and the harm caused by the offense. You will be required to submit any pre-sentence reports, plea agreements, and trial and sentencing transcripts, if available. The court may also consider related charges that were dismissed, as long as the underlying facts are substantiated or undisputed. The court may not, however, consider unproven claims or allegations. The state must present evidence if it claims that there are “contested” facts which are not of record.

To evaluate character and conduct since the conviction, the court may consider just about anything that shows (or does not show) that you have rehabilitated from your conviction, including:

• Behavior and performance during incarceration, parole or probation;
• Family and community ties;
• Education, vocation, and volunteer work;
• Satisfaction of fines and other legal obligations;
• Distance from the criminal element (physical, mental); and
• Rehabilitation.

The court may also consider whether your conviction has created barriers in your life and, if applicable, your character and conduct prior to the conviction.

Sale, Distribution, or Possession with the Intent to Sell Small Amounts of Marijuana and Hashish

Sale, distribution, or possession with intent to distribute less than an ounce of marijuana or less than five grams of hashish can be expunged. In this case, you have the burden to prove the amount of CDS involved in your case. Amounts can be found on the judgment of conviction, plea transcript, or other arrest and sentencing documents.

Possession with Intent to Distribute

Generally, possession of CDS with the intent to distribute—any degree—can be expunged. The State might object to your expungement, however, if it believes that the crime you committed was part of a drug operation involving the sale of CDS, and you were an “accomplice” to that scheme (even if you were not personally involved in a sale). Here, the court may look at the circumstances of the offense which tend to show that a sale was actually intended, such as the presence of cash, weapons or paraphernalia common to drug sale operations. Therefore, in order to expunge a conviction for possession with intent to distribute, you may need to establish through trial transcripts, pre-sentence reports, or other evidence that the offense did not involve an intended sale of CDS.

Possession

Convictions for possession of CDS, drug paraphernalia, “simple possession” and other minor drug offenses such as failure to give CDS to police, can be expunged. 

Conspiracy

Convictions for conspiracy to possess, distribute, or sell CDS may also be eligible for expungement.

Conclusion

While this article is intended to provide you with general guidance, you should discuss your case with an attorney or trained specialist who will consider the facts of your case, the context of your entire criminal record history, and your satisfaction of the sentencing requirements.

Prisoner Reentry Project (PREP)

If your income is low, you may qualify for legal help from Legal Services of New Jersey’s Prisoner Reentry Project (PREP). PREP provides assistance in civil matters to eligible inmates and those with criminal records to help their successful transition back into society. You may call our statewide, toll-free legal hotline at 1-888-LSNJ-LAW (1-888-576-5529). You may also apply online.

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This information last reviewed: Oct 1, 2018