What Is Expungement and Mental Health Expungement?
Expungement is the process of clearing your legal record, typically after a certain amount of time has passed and all court-ordered requirements have been completed. Think of it like wiping the slate clean and starting fresh.
What Is the Difference Between Criminal Record and Mental Health Expungement?
When most people think of expungement, they think of clearing a criminal record. However, expungement can also be accomplished with a mental health record.
In this case, voluntary or involuntary mental health holds are removed from your record. For instance, if you were committed to a psychiatric hospital some years ago, you can take steps to have that information removed from public exposure.
Furthermore, unlike with a criminal record expungement, you are not required to divulge your past mental health history to law enforcement, the judiciary, or correctional institutions if you apply for a job with them.
There’s another difference between a mental health and a criminal expungement. Once a mental health record is expunged, you are no longer disqualified from purchasing or possessing a firearm. Your past inpatient psychiatric treatment cannot be used against you. You only need to disclose if you are currently receiving mental health treatment of any kind when applying for a firearm purchase.
Why Do People Seek Mental Health Expungements?
Most people come to our law offices asking for help with an expungement because of the stigma surrounding mental illness and psychiatric treatment. While medical records are now governed by privacy laws like HIPAA, commitment to a psychiatric facility can be a matter of civil record that others can find with a bit of research.
You don’t wish for this private information to show up on job applications, for instance, where you need a certain clearance level. With an expungement, others cannot find this information, nor are you required to divulge it. So you cannot be accused of lying or misrepresenting yourself by leaving it off a job application.
Perhaps you want to purchase a firearm. You don’t want to be designated incapacitated or dangerous.
How Does Mental Health Expungement Work in New Jersey?
Each state has its own set of rules for mental health expungement. Let’s look at how it works in New Jersey. The statutes that govern expungement in our state apply to any or all cases of:
- Involuntary civil commitments to a mental health institution or facility
- Voluntary civil commitments to a mental health institution or facility
- Determinations of dangerousness
- Incapacitation determinations pursuant to N.J.S.A. 3B:1-2
Who Is Eligible?
If you meet the criteria above and want to have your record expunged, you must prove to the court one of two things:
- You were discharged from the mental health facility and have been designated as “recovered.”
- You were discharged from the institution and noted as being “substantially improved” or “in substantial remission.”
You don’t have to have met these criteria at the exact time you were discharged. Rather, you only need to be able to demonstrate you meet them at the time you request expungement.
What Is the Process?
First, you must file what is known as a Verified Complaint for Expungement of Civil Commitment Record with the New Jersey Superior Court. To do that, you will need these documents:
- A complete copy of your civil commitment record
- A complete copy of your mental health record
- A copy of your criminal history record
- A report or certification from a licensed psychologist or licensed psychiatrist saying that you are not a danger to yourself, others, or property
- Notarized letters or references from people in your community (employers, friends, family, etc.) to use as evidence of your reputation
The Verified Complaint is submitted alongside the following:
- An Order to Show Cause
- A Proposed Expungement Order
- A CIS, or Case Information Statement
- The court filing fee in the form of a check to the State Treasurer
- Two self-addressed, stamped envelopes
Once those are filed, the court clerk will return the papers to you (marked “filed”) and send you the executed Order to Show Cause. This is very important, as it gives you your hearing date and time.
Within seven (7) days of the date when the Order to Show Cause was signed by a judge, you must serve one copy of the filed documents and the executed Order to Show Cause to each of the following entities:
- The County Adjustor
- The County Prosecutor
- The Medical Director of the institution or facility where you were committed
- Any people who petitioned to have you committed
You must use Certified Mail with a Return Receipt to send these. That’s because once you get the green receipts back, you are required to file Proof of Service with the judge’s chambers to show everything was properly served.
How Does the Judge Make a Determination?
The hearing in front of a judge is when a decision is made whether or not to grant an expungement. The court will listen to what happened at the time of your commitment. Then, your mental health record will be reviewed, along with your community reputation and your criminal history.
You will be asked questions and encouraged to present evidence. A psychiatrist may or may not be present at the wishes of the court.
The judge’s greatest concern is that you not be a danger to the public and that your expungement wouldn’t go against the greater public interest.
What Is the End Result of Mental Health Expungement?
If the judge grants a mental health expungement, you get a copy of the Expungement Order signed by the court. When you receive it, you need to serve a copy right away to the County Adjustor, again using Certified Mail with a Return Receipt.
You no longer have to disclose your mental health commitment. You also have the right to purchase a firearm without disclosing it.
How Can an Attorney Help with a Mental Health Expungement?
As you can see from the long checklist above, obtaining a mental health expungement can involve many steps. You want to be sure you don’t miss anything, lest your expungement be declined or you fail to get a hearing in the first place.
An expert like Michele Finizio has the experience and resources to assist with this. Our team can make sure all your documentation is submitted correctly, giving you the best chance possible of a positive outcome with a clean slate. And you’ll have a legal professional with you every step of the way to explain the process.
If you’re ready for a mental health expungement, the New Jersey law office of Michele Finizio is here to assist you in Atlantic, Burlington, Camden, Cumberland, Gloucester, and Mercer counties.
Call us at 856-553-1862 to schedule a free initial consultation. Or reach out online to let us know how we can help you.
