If you or a loved one has been charged with a disorderly persons offense in New Jersey, I’m sure you have a few questions. The most common are the following:

Am I going to jail?

If you have no prior record, in most cases the answer is no. On a disorderly persons offense, you are facing a maximum of six (6) months in the county jail. However, if you have no prior record, there is a presumption of non-incarceration. This means that, it is presumed you will not receive a jail sentence based on your lack of prior record. If you do have a prior record, on the other hand, you could very well be facing jail time. Either way, it is important that you fight these charges and avoid a criminal record.

Is a disorderly persons offense a criminal offense?

Yes. It’s like a misdemeanor. If you are convicted of a disorderly persons offense or petty disorderly persons offense, it will show up on your permanent record. This means that, if an employer or school runs a background check on you, this offense will show up on your record.

Where will this charge be handled?

In the local municipal court in the municipality in which you were charged. For example, if you are charged with disorderly conduct in Morristown, New Jersey, this charge will be handled in the Morristown Municipal Court.

Is it possible to expunge these charges if I am convicted?

Yes, it is a five (5) year waiting period and you can apply to have this charge expunged. However, if you have other things on your record you may not be eligible for an expungement.

What type of fine am I facing on a disorderly persons offense?

Typically, $1,000.00. On a petty disorderly persons offense, $500.00.

Is there any way to get out of these charges?

Yes. An experienced lawyer may be able to get the charges dismissed entirely, get you into a diversionary program like a conditional discharge so you can avoid a record, or negotiate a downgrade so you plead guilty to something non-criminal and preserve your record.

Some disorderly persons we typically handle include the following:

  • Possession of Marijuana (under 50 grams)
  • Possession of Drug Paraphernalia
  • Harassment
  • Simple Assault
  • Disorderly Conduct
  • Possession of a Fake ID
  • Underage Possession of Alcohol
  • Shoplifting (in an amount less than $200)

Disorderly Persons Offense vs. Municipal Ordinance Violation

One typical downgrade for a disorderly persons offense is an amendment to a municipal ordinance violation. This makes a criminal disorderly persons offense a non-criminal municipal ordinance violation. Let me give you an example. I often represent clients charged with disorderly conduct for alcohol related incidents in Morristown, Hoboken, Belmar, etc. where there is a significant bar scene. They are given a criminal complaint for disorderly conduct, a disorderly persons offense. If they are convicted of this charge, they will have a permanent criminal charge on their record (subject to expungement in some cases after five (5) years). I am often able to negotiate a downgrade of the disorderly conduct charge to a noise violation, a municipal ordinance violation. This results in a fine and no criminal record. It’s on the level of a littering ticket. It would be similar to having a party at your house and having too many people over and your neighbor’s call the police and the police write you a ticket for a noise violation. This is crucial for my clients who are able to pay a fine and avoid a criminal charge on their record.

I represented a client recently who was charged with 2nd degree eluding arising out of Parsippany, New Jersey. This second degree indictable (felony) level charge must be handled at the Morris County Superior Court in Morristown, New Jersey. My client was facing five (5) to ten (10) years in New Jersey State Prison with a presumption of incarceration. This means that, even with no prior criminal record, it is presumed that you will receive a state prison sentence if you are convicted of a second degree offense. Moreover, he was facing a permanent indictable (felony) charge on his record. Finally, because he is a permanent resident (green card holder), he would be deported if he was convicted of any indictable (felony) level offense.

My client was a young man and college student with no prior criminal record. He was riding a motorcycle around his neighborhood in Parsippany, New Jersey when he was stopped by police. He had never ridden a motorcycle before and was borrowing his cousin’s bike to cruise around the neighborhood. When I received and reviewed the videotape evidence from the officer’s police vehicle, it was apparent to me that this was not a 2nd degree eluding charge.

An eluding criminal charge in New Jersey is governed by N.J.S. 2C:29-2(b) which provides in pertinent part:

§ 2C:29-2. Resisting arrest, eluding officer

b. Any person, while operating a motor vehicle on any street or highway in this State or any vessel, as defined pursuant to section 2 of P.L. 1995, c. 401, on the waters of this State, who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle or vessel to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person. For purposes of this subsection, there shall be a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person if the person’s conduct involves a violation of chapter 4 of Title 39 or chapter 7 of Title 12 of the Revised Statutes. In addition to the penalty prescribed under this subsection or any other section of law, the court shall order the suspension of that person’s driver’s license, or privilege to operate a vessel, whichever is appropriate, for a period of not less than six months or more than two years.

The complaint in this case alleged that my client saw the police officer attempt to pull him over and then ran in an attempt to elude the police officer at an extremely high rate of speed. When I reviwed the video evidence, it was clear to me that the officer failed to turn his sirens on until my client had already sped off on the motorcycle. Moreover, according to my client, he did not see or hear any sirens until he saw lights out of the corner of his eye and then he attempted to pull the motorcycle over and flipped the bike. This version of events was corroborated by the video evidence and clearly showed that my client was a novice with the motorcycle and didn’t know what he was doing.

I was able to convince the assistant prosecutor in Morris County that the 2nd degree eluding charge could not be proven beyond a reasonable doubt. As such, the charge was amended to a third degree eluding offense. Then, based on my client’s lack of prior criminal history, his ties to the community, and his status as a green card holder, I was able to convince the State that he should be admitted into the Pre-Trial Intervention (PTI) program. This program is for first time offenders who have no criminal record and their charges are non-violent. My client received two (2) years probationary treatment and two-hundred (200) hours of community service. As long as he completes the two years probation successfully while avoiding any other arrests and completing his community service, the charges will be dismissed at the end of his probation. He will have no record and this will allow him to remain in the country and avoid deportation. This was a tremendous success for the client and my firm.

The expungement of a disorderly persons offense in New Jersey is governed by N.J.S. 2C:52-3 which provides in pertinent part:

2C:52-3. Disorderly persons offenses and petty disorderly persons offenses

Any person convicted of a disorderly persons offense or petty disorderly persons offense under the laws of this State who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, or of another three disorderly persons or petty disorderly persons offenses, may, after the expiration of a period of 5 years from the date of his conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later, present a duly verified petition as provided in section 2C:52-7 hereof to the Superior Court in the county in which the conviction was entered praying that such conviction and all records and information pertaining thereto be expunged.

As the aforementioned statute states, a defendant may expunge up to three (3) Disorderly Persons Offenses from their criminal record. However, a Defendant must satisfy three prerequisites: first, the Defendant cannot have a prior felony (indictable) conviction; secondly, the Defendant must satisfy the five (5) year statutorily mandated waiting period; lastly, the Defendant has satisfied all fines associated with the conviction(s).

Most Disorderly Persons Offenses are considered “minor” in nature and as a result most people often forget that these offenses are criminal convictions. A Disorderly Persons Offense conviction will remain on your criminal record until it is successfully expunged. These convictions can have major consequences later on in life, therefore, it is imperative to expunge your record as soon as you are eligible.

A local ordinance is not a crime but it does result in a record which is subject to expungement after two (2) years. The statute which governs is N.J.S. 2C:52-4 which provides in pertinent part:

2C:52-4. Ordinances

In all cases wherein a person has been found guilty of violating a municipal ordinance of any governmental entity of this State and who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, and who has not been adjudged a disorderly person or petty disorderly person on more than two occasions, may, after the expiration of a period of 2 years from the date of his conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later, present a duly verified petition as provided in section 2C:52-7 herein to the Superior Court in the county in which the violation occurred praying that such conviction and all records and information pertaining thereto be expunged.

Pursuant to the above statute, a Defendant may expunge all Local Municipal Ordinances from their record. In addition, New Jersey also allows a Defendant to expunge up to two (2) separate Disorderly Persons Offenses from their criminal record. The legislatures require that a Defendant satisfy the two (2) year statutorily mandated waiting period before petitioning the courts for an expungement of a local ordinance from their record.

There are a wide range of local municipal ordinances which a Defendant may have been convicted or found guilty including disturbing the peace, noise violation, littering, open container of alcohol in public, etc. These ordinance violations do not result in a criminal record but they do leave a record which may be expunged two (2) years from the date of the conviction or plea.

I often have clients contact me with a combination of ordinances, disorderly persons offenses, and indictable convictions on their record with questions regarding what, if anything, can be expunged from same. Contact my Morristown office anytime for a free initial consultation regarding your expungement eligibility at (973)971-0030.

If you have been charged with a crime in New Jersey, there is an arrest record associated with same. You were arrested, fingerprinted, processed, and a photo was taken. If your charges were eventually dismissed altogether or you were found not guilty by a judge or jury, you are eligible to file for an expungement of those arrest records immediately. If you do not expunge them, the arrest records will still appear on a background check and show that the charges were dismissed. Once you file for an expungement and the expungement Order is signed by a Superior Court Judge, then the original charges and arrest will no longer appear on your background check.

An expungement of an arrest not resulting in a conviction is governed by N.J.S. 2C:52-6 which provides in pertinent part:

2C:52-6. Arrests not resulting in conviction

a. In all cases, except as herein provided, wherein a person has been arrested or held to answer for a crime, disorderly persons offense, petty disorderly persons offense or municipal ordinance violation under the laws of this State or of any governmental entity thereof and against whom proceedings were dismissed, or who was acquitted, or who was discharged without a conviction or finding of guilt, may at any time following the disposition of proceedings, present a duly verified petition as provided in section 2C:52-7 to the Superior Court in the county in which the disposition occurred praying that records of such arrest and all records and information pertaining thereto be expunged.

b. Any person who has had charges dismissed against him pursuant to P.L.1970, c. 226, § 27 (C. 24:21-27) [FN1] or pursuant to a program of supervisory treatment, shall be barred from the relief provided in this section until 6 months after the entry of the order of dismissal.

c. Any person who has been arrested or held to answer for a crime shall be barred from the relief provided in this section where the dismissal, discharge, or acquittal resulted from a determination that the person was insane or lacked the mental capacity to commit the crime charged.

I often have clients call me about a potential expungement of their criminal record. Expungements depend on the original charge(s), the number of charges on your record, and the time elapsed since the conviction.

The New Jersey statute which governs the expungement of indictable (felony) convictions is N.J.S. 2C:52-2 which provides in pertinent part:

N.J.S.A. 2C:52-2. Indictable offenses

a. In all cases, except as herein provided, wherein a person has been convicted of a crime under the laws of this State and who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, and has not been adjudged a disorderly person or petty disorderly person on more than two occasions may, after the expiration of a period of 10 years from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later, present a duly verified petition as provided in section 2C:52-7 to the Superior Court in the county in which the conviction was entered praying that such conviction and all records and information pertaining thereto be expunged.

Notwithstanding the provisions of the preceding paragraph, a petition may be filed and presented, and the court may grant an expungement pursuant to this section, although less than 10 years has expired in accordance with the requirements of the preceding paragraph where the court finds:

(1) less than 10 years has expired from the satisfaction of a fine, but the 10-year time requirement is otherwise satisfied, and the court finds that the person substantially complied with any payment plan ordered pursuant to N.J.S.2C:46-1 et seq., or could not do so due to compelling circumstances affecting his ability to satisfy the fine; or

(2) at least five years has expired from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later; the person has not been convicted of a crime, disorderly persons offense, or petty disorderly persons offense since the time of the conviction; and the court finds in its discretion that expungement is in the public interest, giving due consideration to the nature of the offense, and the applicant’s character and conduct since conviction.

In determining whether compelling circumstances exist for the purposes of paragraph (1) of this subsection, a court may consider the amount of the fine or fines imposed, the person’s age at the time of the offense, the person’s financial condition and other relevant circumstances regarding the person’s ability to pay.

Although subsequent convictions for no more than two disorderly or petty disorderly offenses shall not be an absolute bar to relief, the nature of those conviction or convictions and the circumstances surrounding them shall be considered by the court and may be a basis for denial of relief if they or either of them constitute a continuation of the type of unlawful activity embodied in the criminal conviction for which expungement is sought.

b. Records of conviction pursuant to statutes repealed by this Code for the crimes of murder, manslaughter, treason, anarchy, kidnapping, rape, forcible sodomy, arson, perjury, false swearing, robbery, embracery, or a conspiracy or any attempt to commit any of the foregoing, or aiding, assisting or concealing persons accused of the foregoing crimes, shall not be expunged.

Records of conviction for the following crimes specified in the New Jersey Code of Criminal Justice shall not be subject to expungement: Section 2C:11-1 et seq.(Criminal Homicide), except death by auto as specified in section 2C:11-5; section 2C:13-1 (Kidnapping); section 2C:13-6 (Luring or Enticing); section 1 of P.L.2005, c. 77 (C.2C:13-8) (Human Trafficking); section 2C:14-2 (Aggravated Sexual Assault); section 2C:14-3a (Aggravated Criminal Sexual Contact); if the victim is a minor, section 2C:14-3b (Criminal Sexual Contact); if the victim is a minor and the offender is not the parent of the victim, section 2C:13-2 (Criminal Restraint) or section 2C:13-3 (False Imprisonment); section 2C:15-1 (Robbery); section 2C:17-1 (Arson and Related Offenses); section 2C:24-4a. (Endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child); section 2C:24-4b(4) (Endangering the welfare of a child); section 2C:24-4b. (3) (Causing or permitting a child to engage in a prohibited sexual act); section 2C:24-4 b.(5)(a) (Selling or manufacturing child pornography); section 2C:28-1 (Perjury);section 2C:28-2 (False Swearing); section 2C:34-1b.(4) (Knowingly promoting the prostitution of the actor’s child); section 2 of P.L.2002, c. 26 (C.2C:38-2) (Terrorism); subsection a. of section 3 of P.L.2002, c. 26 (C.2C:38-3) (Producing or Possessing Chemical Weapons, Biological Agents or Nuclear or Radiological Devices); and conspiracies or attempts to commit such crimes.

Records of conviction for any crime committed by a person holding any public office, position or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof and any conspiracy or attempt to commit such a crime shall not be subject to expungement if the crime involved or touched such office, position or employment.

c. In the case of conviction for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell, expungement shall be denied except where the crimes involve:

(1) Marijuana, where the total quantity sold, distributed or possessed with intent to sell was 25 grams or less;

(2) Hashish, where the total quantity sold, distributed or possessed with intent to sell was five grams or less; or

(3) Any controlled dangerous substance provided that the conviction is of the third or fourth degree, where the court finds that expungement is consistent with the public interest, giving due consideration to the nature of the offense and the petitioner’s character and conduct since conviction.

d. In the case of a State licensed physician or podiatrist convicted of an offense involving drugs or alcohol or pursuant to section 14 or 15 of P.L. 1989, c. 300(C.2C:21-20 or 2C:21-4.1), the court shall notify the State Board of Medical Examiners upon receipt of a petition for expungement of the conviction and records and information pertaining thereto.

Analysis of the Statute

As the above listed statute states, a Defendant is only permitted to expunge one (1) Indictable Conviction from their criminal record. However, a Defendant may also expunge up to two (2) separate Disorderly Persons Offenses from criminal record as well provided that the Defendant was convicted of the Disorderly Persons Offense(s) prior to the Indictable Conviction. Unfortunately, the statute mandates that a Defendant must wait ten (10) years before they may petition the courts for an expungement. With that being said, there is an exception within the statute which may allow for a Defendant to file for an expungement within five (5) years.

The New Jersey Legislatures have prohibited the following crimes from being expunged from ones record:

a. Criminal Homicide; except death by auto

b. Luring or Enticing

c. Human Trafficking

d. Aggravated Sexual Assault

e. Aggravated Criminal Sexual Contact; if the victim is a minor,

f. Criminal Sexual Contact; if the victim is a minor and the offender is not the parent of the victim

g. Criminal Restraint

h. False Imprisonment

i. Robbery

j. Arson and Related Offenses

k. Endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child

l. Endangering the welfare of a child

m. Causing or permitting a child to engage in a prohibited sexual act

n. Selling or manufacturing child pornography

o. Perjury

p. False Swearing

q. Knowingly promoting the prostitution of the actor’s child

r. Terrorism

s. Producing or Possessing Chemical Weapons, Biological Agents or Nuclear or Radiological Devices

t. Conspiracies or attempts to commit all of the aforementioned crimes.

Also, the New Jersey Legislature has carved out special exceptions when an a Defendant is charged with distribution of a controlled dangerous substances and/or possession of a controlled dangerous substances with the intent to sell.

If you have been charged with an indictable criminal offense in New Jersey, your case must be handled at the Superior Court level. In most cases, your first appearance will be in the municipality in which you were charged where you will be advised of your rights and the penalties against you and you will enter a plea of “not guilty”. At this point, the case will be transferred up to the county to be handled. For example, if you are charged with aggravated assault in Harding, New Jersey, the case will be transferred to the Morris County Superior Court in Morristown, New Jersey for adjudication.

Once the case is transferred up to the county, the case will be listed for a pre-indictment conference. In Morris County, this is known as an “EDC Conference” which stands for “Early Disposition Conference”. Each county has a different name for this pre-indictment conference. In Monmouth County, it is known as “PIP Court” which stands for “Pre-indictment Proceeding”. Regardless, the pre-indictment conference is the same in every county. The prosecutor’s office will provide the defendant with limited discovery and the State’s best plea offer at the conference. The reason for this is that the State saves time and money if the case resolves early on. For example, at this point the case would proceed by way of accusation because the case has not yet been presented to the grand jury for an indictment (the formal charging document). The defendant will also have the opportunity to apply for Pre-Trial Intervention (PTI) at the pre-indictment conference if the defendant is eligible and the defendant is charged with a crime where PTI is an option (typically third degree and fourth degree crimes in New Jersey).

At the pre-indictment conference several things can happen. First, the defendant can accept the plea offer and enter a plea to the negotiated plea agreement. Second, the defendant can reject the plea offer and allow the case to proceed through the system, starting with the grand jury. Third, the defendant can try and negotiate an even lower plea offer than that which has been offered by the State. Fourth, the defendant can apply and be admitted into PTI if the defendant is recommended by probation and the prosecutor’s office approves that recommendation. Finally, the case can be remanded to municipal court (depending on what the original charges are).

There are several types of bail in New Jersey including the following:

Cash Bail

The easiest way to post bail is by making cash payment to the court to allow the defendant to be released. When the bail is set, the entire amount must be posted with the court in order for the defendant to be released (unless a 10% option is indicated by the court). It is important to remember that you will not be refunded the cash until the end of the case. However, if the defendant fails to appear in court when required then the cash bail is forfeited and lost.

Cash Bail (with a 10% option)

In some cases, the judge with set a cash bail with a 10% option. This means that, if 10% of the bail is posted with the court, the defendant will be released pending the resolution of the case. As long as the defendant appears as required, the 10% fee will be refunded at the end of the case. For example, if the defendant’s bail is $50,000.00 with 10%, the defendant may post $5,000.00 with the court to be released. This $5,000.00 will be returned at the end of the case as long as the bail is not forfeited based on the defendant’s failure to appear. On the other hand, if the bail is $50,000.00 cash, without a 10% option, the entire bail must be posted for the defendant to be released from the county jail.

Property Bond

This type of bail option allows the defendant to post property with the court to secure the bail amount. In most cases, the county clerk in the county in which the defendant was charged requires you to present the deed to the property and a certified appraisal as to the value of the property. In some cases, the county clerk will allow you to provide a copy of the most recent property tax bill in order to establish the value of the property posted for bail. In addition, for more serious offenses you must have $20,000 in equity in the home above the bail amount set by the court. If the defendant fails to appear in court when required, the State of New Jersey may foreclose on the property posted for bail.

Release on own Recognizance (ROR)

In cases where the defendant has no prior criminal record or a very minimal prior criminal record and the charges are of a less serious nature, the Judge releases the defendant as long as it is agreed that the defendant will appear in court when required. The Judge will only grant this form of release when the defendant does not pose a serous flight risk and is not a threat to the community.

Bail Bondsman

The last type of bail option is to utilize a bail bondsmen. Bail bondsmen are typically used when the defendant or the defendant’s family cannot afford to post the entire bail amount set by the court. For example, if the Judge sets the bail at $150,000 with no 10% option, the entire amount or property bond in that amount must be posted with the court in order for the defendant to be released. However, when using the services of a bail bondsman it will typically cost 10% of the bail set by the court. The bondsman will then post the $150,000 bail with the court and the defendant will be released. The defendant must keep in mind that 10% fee paid to the bondsman will not be refunded at the end of the case.

The New Jersey Intensive Supervision Program (ISP) provides certain offenders who are sentenced to state prison an opportunity to work their way back into the community under intensive supervision before they are eligible for parole. The Intensive Supervision Program is, as the name implies, “intense”. Success is not assured and therefore the program may not be suited for everyone that is facing a prison term.

Those that have been convicted and sentenced for a first-degree crime are ineligible for ISP. In addition, those that have been convicted and sentenced for homicide, vehicular homicide, robbery, or a sex offense are also ineligible.

The ISP program requires that the offenders present a plan that will give full assurance to a Screening Board and a Resentencing Panel of judges that their return into the community will not jeopardize the public’s safety and will result in a positive social adjustment. In addition, the participants must continue to demonstrate to staff and the Resentencing Panel that they should be allowed to continue to participate in the program. The Screening Board consists of a three-member panel that is responsible for screening applicants and recommending or denying placement into ISP. The Screening Board will review your pre-sentence report and recommend you into ISP. The Panel of Judges will then consider your application. If the Panel of Judges deny your application because you were not considered to be a viable candidate then you will receive a rejection letter. Otherwise, an officer will contact you to schedule an interview. The officer typically inquires about the defendant’s plans for living, treatment, and employment if they are released from prison. The defendant is immediately released from prison when the application processes concludes and the defendant has been accepted into ISP.

I represented a client this morning charged with a probation violation at the Middlesex County Superior Court in New Brunswick, New Jersey. The basis for this probation violation was a new charge in Monmouth County, failure to report on a half-dozen occasions when required by his probation officer, failure to pay fines, and failure to provide proof of employment. I was able to carry the probation violation for several months to allow my client to comply with his probation officer while I resolve the pending charge in Monmouth County.

Probation violations are serious because the defendant often ends up in the county jail or state prison. The grounds for a probation violation include:

  • Violation of alcohol consumption provisions
  • Violation of drug possession or use provisions
  • Failed drug or alcohol tests
  • Failure to complete counseling requirement
  • Violation of ISP (Intensive Supervision Program)
  • Failure to pay a fine
  • Failure to register on a required registry
  • Contact with a victim
  • Failure to report to probation officer as directed
  • A new arrest or charge
  • Failure to maintain or seek employment

If you are charged with a violation of probation, the case will be scheduled for a hearing before the judge in the court in which you were sentenced. The probation officer will be present and will provide you with a VOP package which includes the original charges and the grounds for the probation violation. You can be represented by an attorney at this hearing and I strongly suggest that you hire representation prior to the hearing. The probation officer and prosecutor will make a recommendation to the judge as to how the violation should be handled which can include continued probation, termination of probation, county jail time, and state prison time. The judge will then decide what the punishment will be.