Category: Expungements

Clearing Your Name 101

Having a criminal record can seriously complicate your life.  It doesn’t matter if the conviction was for something small or a very long time ago.  The government can restrict certain rights (such as the right to keep and bear arms) and employers often pass over applicants with a criminal record.  Fortunately, in New Jersey, there’s something you can do about it.

Am I Eligible for an Expungement?

New Jersey law allows an individual to expunge his or her criminal record, so long as the individual meets certain requirements.  If you have been convicted of a crime (without any prior or subsequent convictions), and have not been convicted of more than two disorderly persons offenses, you are eligible for an expungement after ten years have passed from the date the sentence was completed.  If you were jailed for the crime, this means that you must wait ten years from the date you were released; if the punishment was a fine, then the time period expires ten years after you paid the fine.

If you have been convicted of more than two disorderly persons offenses, you are not completely prohibited from getting an expungement, but it does complicate things.  According to New Jersey law, the “nature of those . . . convictions and the circumstances surrounding them shall be considered by the court and may be a basis for denial of relief if they . . . constitute a continuation of the type of unlawful activity embodied in the criminal conviction for which expungement is sought.”  N.J.S.A. 2C:52-2.  Thus, a court appearance will be necessary if you have several offenses on your record.

What Does An Expungement Do?

New Jersey’s definition of “expungement” is: “The extraction and isolation of all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person’s detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system.”  Criminal complaints, warrants, arrests, commitments, fingerprints, photos, index cards, rap sheets, and docketing records are included within the definition.

This means that the documentation of your arrest and convictions will be taken out of your file and physically separated.  However, law enforcement may still be able to access your expunged record in order to determine whether you are eligible for supervisory treatment or a diversion program, in order to determine if you had a prior expungement, in setting bail and determining correctional facilities, and in some other limited instances.

An expungement does not automatically clear the records of privately operated background check companies.  Several credit check companies and databases include this information, as well.  In order to clear your record as completely as possible, it is necessary to contact these companies and provide the necessary documentation to remove your name from the databases.  Thompson Law Offices includes this secondary step in all of its expungement cases for no extra charge.

Can I Own a Firearm After an Expungement?

Yes.  The Application for Firearms Purchaser Identification Card, required to purchase a firearm, specifically excludes expunged crimes from the questionnaire.  It does not, however, exclude domestic violence crimes involving “striking, kicking [or] shoving,” purposely or recklessly causing (or attempting) bodily injury, or negligently causing bodily injury with a deadly weapon.  Thus, if you have been convicted of a domestic abuse crime that involved bodily injury, or attempted bodily injury, you must still answer “yes” to the question on the firearms application.

Can I Expunge Charges That Were Dismissed?

Absolutely.  If the charge was dismissed (or you were acquitted), then you are eligible to have those charges expunged.  While there is a filing fee to file a petition to expunge convictions, there is no filing fee for petitions to expunge dismissed charges or acquittals.  The expungement will have the same effect as that of a conviction, and will isolate all paperwork related to your charges.

If you have a criminal record and wish to discuss your options, call Thompson Law Offices, LLC to set up your FREE CONSULTATION at (888) 866-6947 or email the office at Inquiries@TLawLLC.com.

What You Need To Know About Gun Trusts and New Jersey

 

Gun trusts have become quite popular in the last few years, especially considering the national discussion and controversy over firearms.  Gun trusts have become so prevalent, in fact, that the Bureau of Tobacco, Firearms, and Explosives (“ATF”) has even controversially stepped into the fray to regulate them.  As with most things floating about the national conversation, there is a lot of information on the internet pertaining to gun trusts, and much of it is dubious, at best.

Many states’ laws are such that the benefits of gun trusts are numerous.  In those states, such as Pennsylvania, individuals may own certain National Firearms Act (“NFA”) weapons, such as silencers, short-barreled shotguns, and fully automatic weapons.  In order to purchase these NFA weapons, however, the individual must go through ATF and present certain personal information, such as a photo ID, signature, and fingerprints, to the chief law enforcement officer (“CLEO”).  As a legal entity, however, a gun trust has no photo ID, signature, or fingerprints, thus expediting and streamlining the process.  Besides saving time, this can be useful for law-abiding citizens to obtain NFA weapons in locations where the CLEO may refuse to sign off on the required documentation.

New Jersey, unfortunately, is not one of those states.  The weapons that most people desire to purchase and possess through a gun trust are generally prohibited in New Jersey.  For example, silencers and short-barreled shotguns (referred to as “sawed-off shotguns” in New Jersey) are prohibited in New Jersey pursuant to N.J.S.A. 2C:39-3.   Likewise, fully automatic and “assault rifles” are prohibited unless one is licensed by applying the Superior Court of New Jersey pursuant to N.J.S.A. 2C:58-5.

There are, however, other benefits to gun trusts.  Besides streamlining the NFA purchase process in states where NFA firearms are allowed, the gun trust acts as a great way to transfer firearms from generation to generation, without worrying about going through probate (trusts are executed by the trustees, not the probate process).  Trusts are also private, whereas a will is publicly available for anyone who may want to peruse them when executed. Thus, it is conceivable that someone could discover which of your beneficiaries inherited which firearm.  To some, this is a concern.

In New Jersey, however, all firearms transfers require that the receiver of the firearm has a valid Firearms Purchaser Identification Card (“FID”) and that the seller or grantor signs a written statement that he or she has identified the individual.  Importantly, these two requirements are waived when the transfer is “for the passing of a firearm upon the death of an owner thereof to his heir or legatee, whether the same be by testamentary bequest or by the laws of intestacy.”  N.J.S.A. 2C:58-3(j).  While a passive reading may seem to indicate that a trust would allow the passing of a firearm from the settlor (creator of the trust) to the beneficiary, this is not the case.

An heir is defined under New Jersey law as “those persons, including, but not limited to, the surviving spouse, the domestic partner and the descendants of the decedent, who are entitled under the statutes of intestate succession to the property of a decedent.” N.J.S.A. 3B:1-1.  The term “legatee” is not defined in the New Jersey estates statutes, but is generally defined as one who receives a legacy, which is a bequest via will.

What this means is that, under a strict or literal reading of the statute, the property, or res, of the trust would not be excluded from the normal firearms transfer laws of New Jersey.  A trust is, by definition and design, not a will.  Because the language of the exception is strictly the language of the passing of property through a will and last testament, rather than more general language (such as the term “beneficiary”), any transfer via trust is going to require the beneficiary to have a valid FID and the “seller” to issue a statement that the receiver has been identified by the seller.  If you are transferring any handguns, then you must follow the requirements for transferring a handgun.

An individual must also consider that in order to create the trust, it must be funded.  This generally means that the settlor would transfer the property into the trust that he or she desires to be distributed to the beneficiaries at a given point in time.  In most trusts, this is not an issue.  However, when dealing with firearms, this means that all of the procedures required for the transfer of a firearm must be completed at the creation of the trust and then again on distribution.  This also means that at least one Certificate of Eligibility will be required, resulting in the disclosure of information concerning the firearm and the individuals.  For many firearms owners in today’s environment, providing the government with firearms information linking them to their individual firearms is akin to a firearms database, and they are understandably wary.

Thus, although it is not private, leaving your guns to your family (or any other individual) through your will and last testament is generally the best route in the opinion of Thompson Law Offices.  State law specifically exempts this particular transfer from the normal transfer requirements, which should be a great relief in a state renowned for its strict adherence to the letter of its firearms laws.

In addition, the practical effects of the publicity of the will are not great.  Most people are not in the habit of perusing executed wills and unless the will is contested, the probate process should be fairly low-key and streamlined, and at least not particularly public.  For those individuals concerned with firearms databases or registries, while the information is considered public, it is not formalized, as is the case with the Certificate of Eligibility, which should provide some relief to those concerns.

Finally, you do not need to worry about the eligibility of your beneficiary to own a firearm, as state law allows 180 days for an ineligible beneficiary to dispose of the firearm to receive the property value of the gun.  (Note that the statute states that the individual may retain ownership of the firearm, not possession).  Thus, the burden is on the individual receiving the firearm to comply with the law, not the testator (person making the will).

For questions pertaining to the creation of a will concerning firearms, or additional questions regarding gun trusts in New Jersey, call for a consultation at (888) 866-6947.  (Please note that there is a small fee for consultations on gun trusts).