cdTOCtest

to destroy, the records involved. State v. X.Y.Z. Corp., 119
N.J. 416, 421-422 (1990).

Certain limited statutory exceptions permit
expunged records to be made available to law
enforcement, corrections, the Violent Crimes Compen-
sation Board, and the judiciary. In general, those
statutory exceptions only become operative when the
individual, whose record has been expunged, either: (1)
re-enters the criminal justice system (N.J.S.A. 2C:52-17
and 2C:52-20 through -24); (2) is the subject of related
civil or administrative proceedings (N.J.S.A. 2C:52-19);
(3) is applying for a subsequent expungement (N.J.S.A.
2C:52-27a), (4) is seeking admission to PTI, a
supervisory treatment or other diversion program
(N.J.S.A. 2C:52-20), or (5) is seeking employment
within the criminal justice system, corrections, or the
judiciary (N.J.S.A. 2C:52-27c).

II. RECORDS WHICH CAN NOT BE

EXPUNGED

A. Records Maintained by Non Criminal Justice
Agencies

The language of the Expungement statutes, with
regard to what agencies and entities of government are
subject to its terms, has been interpreted by the Courts
as being limited to the judiciary, detention or
correctional facility, law enforcement or criminal justice
agencies. E.A. v. N.J. Real Estate Comm., 208 N.J. Super.
at 68. Accordingly, a non-criminal justice agency can use
and retain records which are otherwise subject to an
Order to Expunge under the provisions of N.J.S.A.
2C:52. In Re D’Aconti, 316 N.J. Super. 1, 10 (App. Div.
1998); IMO Expungement, M.D.Z., 286 N.J. Super. at

85. Examples of such governmental non-criminal justice
    agencies include school boards, professional licensing
    agencies, and professional disciplinary boards or
    committees. In addition, under the holding in State v.
    Zemak, 304 N.J. Super. 381 (Law Div. 1997), police
    department personnel records, including internal affairs
    of internal investigations files are not subject to the
    provisions of the expungement statutes. Also, judicial
    records of PTI, supervisory treatment or conditional
    discharge are not subject to Orders to Expunge. IMO
    Petition, Anthony Podias, 284 N.J. Super. 674, 678 (App.
    Div. 1995), certif. denied, 143 N.J. 517 (1996); N.J.S.A.
    2C:52-31.

B. Domestic Violence & Family Court Records

In situations where police have arrested an individual
under the Prevention of Domestic Violence Act of 1991,

the records of the arrest and disposition of that arrest may

be subject to expungement, but the ancillary reports

prepared by the police or others and filed with the Court,

such as the Domestic Violence Report, TRO, etc., as well

as any documents related to a civil matrimonial action in

the Family Division, are not subject to the provisions of

the Expungement statute. IMO Expungement, M.D.Z.,

286 N.J. Super. 82 85 (App. Div. 1995).

C. Motor Vehicle Offenses

N.J.S.A. 2C:52-28 absolutely prohibits a court from

expunging any records of arrests or convictions for

offenses charged under Title 39, Motor Vehicle offenses.

This includes all records maintained by the Division of

Motor Vehicles pertaining to the driver history or driving

record of an individual. State v. K.M., 220 N.J. Super. 338

(App. Div. 1987).

D. Records Subject to Pending Civil or Criminal

Litigation

Given that the purpose of the expungement statute

is to relieve the petitioner of any burden associated with

a criminal record, if the petitioner is engaged in civil

litigation involving the facts or circumstances of their

arrest and subsequent disposition, then the record is not

to be expunged. N.J.S.A. 2C:52-14d. This prohibition

applies regardless of the identities of the other litigants,

government or non-government. Likewise, if a petitioner

has any pending criminal charges in any jurisdiction, no

expungement should be granted until those charges are

concluded to a finality. See, IMO Petition, Anthony

Podias, supra.

Under the holding in State v. San Vito, 133 N.J.

Super. 508 (App. Div. 1975), the State can object to the

entry of an Order to Expunge a non-conviction

disposition if, as a condition of that disposition, the State

has requested the petitioner stipulate that he will not seek

civil actions against the State as a result of that

disposition. Id. at 511, citing State v. Italiano, 132 N.J.

Super. 1, 4 (App. Div. 1975).

In a situation where the petitioner has already

obtained an Order to Expunge and then seeks to pursue

a civil action based upon the facts underlying the

expungement, our Courts have instructed that the

remedy is a shield to the petitioner, and the successful

petitioner can not utilize the benefits of that remedy as a

sword. Ulinsky v. Avignone, 148 N.J. Super. 250 (App.

Div. 1977).