Explanation of the Requirements, Process, and Impact of Mental Health Expungements in NJ

From mental health to criminal records, there are things people would like to forget, and would like others to forget as well, and an expungement allows that. But do you need a mental health expungement? If you are hoping to become a legal gun owner in New Jersey, this is a vital step in the right direction. And how do you go about getting one? Knowing what to do, what the expect, and how to ensure the greatest chance of success when seeking a mental health records expungement is vital if you want to close this chapter and start fresh on your journey toward legal gun ownership in New Jersey. If you require assistance with getting a mental health expungement, a top New Jersey gun rights lawyer at The Tormey Law Firm is fully equipped to assist you. Our team of attorneys has literally handled thousands of successful expungements to remove mental health records that would otherwise prevent our clients from obtaining the gun permits and the Second Amendment Rights they seek. To speak with a member of our team about your mental health expungement eligibility and how we can help you navigate the process to reach the best possible result, contact us 24/7 at (201)-556-1570 for a free consultation.

What does a Mental Health Expungement Do in New Jersey?

A mental health expungement removes records of voluntary or involuntary commitments to mental health institutions, hospitals, or other facilities that provide mental health care, as well as any court determinations of dangerousness or incapacitation. When an individual is committed, whether through their own choice or a court order, the facility to which they are committed is required to notify the county adjustor of the admission. This notification results in the creation of a court record of the admission.

In order to request and be granted a mental health expungement, the individual must be able to show they have recovered, have substantially improved, or are in substantial remission from the mental health condition that resulted in their admission. The expungement removes the court records created by these admissions. However, other mental health records still exist, such as mental health consultations, observations, diagnoses, and treatments the individual may have received.

When seeking a mental health expungement in New Jersey, individuals are highly advised to consult with a lawyer to ensure that they understand the circumstances under which they must divulge the expunged records.

NJ Statute Authorizing Expungement of Mental Health Records

New Jersey Section 30:4-80.8 governs mental health expungements. It states that any individual who has been, or shall be, committed to an institution or facility that provides mental health services, has been determined to be a danger to themselves, others, or property, or determined to be incapacitated individual either by court order or voluntary admission, and who was, or will be, released as recovered, or who is subsequent to discharge or determination, is substantially improved or in substantial remission, may apply for a mental health expungement. It goes on to state that the individual can apply to the court which made the commitment or to the Superior Court by verified petition which outlines the facts and pray for the relief provided by this act.

This means that individuals can petition to have the following removed from their mental health record: voluntary and involuntary commitments; determinations of dangerousness; and incapacitation. The law does not indicate that the request is certain to be granted, nor does it indicate the circumstances under which the individual can legally deny their mental health record. For example, it does not state whether they can deny their New Jersey mental health record in another state or in another country.

Voluntary and Involuntary Commitments Must be Expunged under Updated New Jersey Law

One important thing to note about the law is that individuals who were voluntarily committed must get an expungement if they wish to exercise their Second Amendment rights. Before the laws changed, individuals could get a note from their doctor stating that they were safe to handle firearms despite previous voluntary commitments, but this is no longer an option. If you are seeking to exercise your right to own a firearm and have concerns about getting an expungement, a New Jersey Firearms Rights attorney at our firm can answer all of your questions, address your concerns, and skillfully handle the complex mental health expungement procedures on your behalf.

Requesting a Mental Health Expungement in New Jersey

A mental health expungement does not have the same clear requirements as a criminal record expungement. This can make it more complicated and confusing to clear mental health records.

Application to Expunge Mental Health Records

There is no specific time frame to apply for a mental health expungement. The individual must apply to the New Jersey county where the mental health facility is located to request the court expunge the records of their voluntary or involuntary commitment. Additionally, the applicant must notify the court, the county adjustor’s office, the prosecutor’s office, and the mental health institution where they were committed. This means that if the individual was committed in more than one county in New Jersey, they may need to submit multiple applications and contact multiple offices. If there is more than one commitment in the same county, they must specify that they seek expungement for each commitment.

What New Jersey Judges Consider in Mental Health Expungement Cases

The court will consider many factors in determining whether to expunge the applicant’s mental health records, including information about the applicant’s reputation in the community where they live, any history of mental health conditions (commitments in other facilities, treatments for mental health that did not include commitment, diagnoses made by mental health professionals, etc.); any criminal history in New Jersey or anywhere else (including juvenile records); and the underlying circumstances that led to the mental health commitment to begin with.

Necessary Findings to Expunge Mental Health Records

While many factors are considered in determining whether to expunge an individual’s mental health records, the court must have two particular findings in order to grant the expungement. First, they must determine that the individual is not likely to act in a way that would pose a danger to public safety. Second, they must evaluate that expunging the records would not be contrary to public interest.

Ways to Support Your Mental Health Records Expungement Application in NJ

Because the decision to expunge mental health records is so individualized and not based on a set of clear rules, applicants will want to put their best foot forward and ensure the court has as little reason as possible to deny the expungement. There are some strategies the applicant can use to increase the odds of getting their record expunged.

“Good Reputation” Strategies

While it is possible for someone to have an improved mental health condition and still live the way they did when they were committed, there are some additional factors that can convince a judge that the applicant has improved and would benefit from the mental health expungement.  These “good reputation” factors show the court that the individual is actively managing their mental health and attempting to be a stable, healthy member of society. Some of these factors include proof of education, proof of employment, a risk assessment or other proof that their mental health condition is managed, and any changes in circumstances between the time the applicant was committed and the time they are requesting the expungement.

Character reference letters from friends, family, coworkers or neighbors in their community are also important. Proof of involvement in any charitable, fraternal, or other reputable organizations may indicate the applicant is seen to have high character and repute in their community. Finally, the applicant should submit any other evidence that can demonstrate to the court that the individual is stable. Even with all of this evidentiary support, it is important to remember that there are no clear rules for a mental health expungement. Instead, it is more of a multi-factor test or “sliding scale” where no single factor weighs more heavily than the rest to make a determination. This is why you need a knowledgeable attorney on your side, assembling a solid and compelling petition in your favor.

Resolve Criminal Records and Protection Orders Before Applying

Unfortunately, in some instances, mental health and criminal records go hand in hand. When this is the case, individuals should seek to clean up their criminal history before requesting a mental health expungement by first seeking an expungement of their criminal record, and resolve any active arrest warrants or pending criminal charges, as well as Restraining Orders or Extreme Risk Protective Orders that may bar their firearms ownership and possession under New Jersey law.

Key Distinctions Between Criminal and Mental Health Expungements in New Jersey

Both mental health and criminal records can be expunged, but the two are very different. The process for getting each expungement is different, and the benefits of each expungement is also different. Each time an individual is arrested, charged, and/or convicted of a crime, a record is created that shows up whenever law enforcement, potential employers, landlords, or others perform a background check. This can make life difficult for those who have a criminal record but after serving their sentence are trying to get their life back on track.

If an individual has a criminal record expunged, it is sealed or removed so that others can no longer see it. Law enforcement, corrections, and the judiciary may still be able to see the records under certain circumstances, but the general public cannot. After the record is expunged, the individual can legally say they do not have a criminal record and have never been arrested.

A criminal record expungement allows the individual to legally state they have no criminal record in most circumstances. A mental health record expungement is not quite as freeing, however. While the individual can technically deny having been committed for mental health issues if they are granted an expungement, there are still cases where they may not be able to do so or instances where the other party already has access to that information.

For example, if the individual wishes to purchase a firearm or to apply for certain positions in law enforcement or corrections may need to disclose the expunged records in order to be approved for the required Firearms Identification Card (FID). New Jersey law requires all purchasers and possessors of firearms to have an FID. To get an FID, individuals must fill out S.P. 66 Consent for Mental Health Records Search. This form gives authorization to divulge records that have not been expunged, but it also contains a provision that signing it is consent to disclosure of mental health records, including records that may have been expunged.

Remove Firearms Disqualification through NJ Mental Health Records Expungement

A mental health expungement does not guarantee an individual will be able to own a firearm in New Jersey. However, because being committed to a mental health facility or determined as dangerous or incapacitated disqualifies individuals from being able to own firearms under federal law, a mental health expungement removes a barrier to make it easier. The expungement can be used to restore the individual’s gun rights.

However, in some cases, the state of New Jersey may still attempt to deny the individual’s Second Amendment rights based on other records that exist of their mental health condition. Remember that the expungement does not remove records of mental health consultations, observations, diagnoses, and treatments. The FID card issuer, New Jersey State Police and local police departments, will use these records to evaluate whether the treatment the individual has undergone makes them a person where issuing an FID and allowing them the right to own a firearm would not be in the interest of public safety, welfare, or health.

Even though the individual may be required to acknowledge that their mental health record was expunged, the fact that the record was expunged in the first place indicates that a court already determined that the individual was not a threat to public safety, welfare, or health. Therefore, while each individual’s case is unique, expungement removes the absolute ban on the individual’s ability to own a firearm and increases the chances of approval despite the other mental health records available.

Frequently Asked Questions (FAQ) About Mental Health Expungements in NJ

FAQ: If I have a mental health record, can I still obtain a firearm legally in NJ?

The short answer is ‘it depends’. While having a mental health record may not automatically be a prohibition to owning firearms legally in New Jersey, it can be. The State of New Jersey is hostile towards those individuals who wish to lawfully exercise their Second Amendment rights despite what has occurred in recent years in the US Supreme Court (Bruen decision) and despite what other state legislatures have done to make it less difficult for their residents to exercise their Second Amendment rights. If you have a mental health history, it depends on how you dealt with that history to determine whether you need to get a mental health expungement. If you saw or see someone to deal with mental health issues, then you may only need to obtain a mental health evaluation to show that despite any past history of seeing a mental health professional, that you are at present safe to own and operate firearms. If, however, you were committed to a facility either voluntarily or involuntarily, you would need to expunge the mental health record through the courts. This would apply even if you had a voluntary commitment that did not previously need to be expunged.

FAQ: What is considered a mental health record in NJ that needs expungement?

A mental health record that needs expungement is governed by NJSA 30:4-80.8 where any individual who is committed to a mental health facility or determined to be an incapacitated person as defined by NJSA 3B:1-2. The way to find out if such a record exists is to contact the Adjuster’s Office in the county where you were committed to seeing if such records exist and to what extent. This may require you to go to additional county adjusters if you were committed to facilities located in different counties in New Jersey.

FAQ: What do I need to show to obtain a mental health expungement?

You need to show that it is not contrary to the public interest to remove a mental health record, that you made substantial improvement since being discharged, and that you would not be a danger to the public to remove a mental health record. To do this, it helps to show why the expungement for mental health records should be granted. A mental health evaluation showing your current mental health status, proof of employment, proof of highest level of education, absence of criminal history, character references from friends, family, etc… and any other positive involvement in the community if applicable. Also showing the absence of any potentially unfavorable factors, such as absence of criminal history, absence of any domestic violence history. Obtaining the particular information needed to support an application to expunge a mental health record is fact-sensitive and should be discussed directly with an attorney who can give more precise information based on your unique circumstances to obtain the information needed. Also you would need to obtain mental health records from the Adjuster’s Office from the county where the commitment took place.

FAQ: Can I still get a mental health expungement if I have a criminal record?

While the existence of any criminal record isn’t a prohibition to getting a mental health expungement, given that there is a high standard to be met before getting a mental health expungement, it is highly advisable to remove, or expunge, any criminal record before asking the court to expunge any mental health record. This would apply even if the criminal record is old or from when you were a juvenile. Again, it is important to reiterate that you want to remove any reasons that a judge could deny your request to clear your mental health record. You improve your chances of getting a mental health expungement by showing you are not a danger to the public and that it is not contrary to the public interest to remove a mental health record by removing a criminal record first. If you have a criminal record in New Jersey, it is important to speak to an attorney in New Jersey about how to remove such a record first before removing any mental health records in New Jersey.

FAQ: Can I still get a mental health expungement if I have a restraining order or other DV history on my record?

Given the high standard that must be shown in expunging a mental health record, it is important not to give a judge a reason to deny your request to expunge a mental health record. If there is a Final Restraining Order (FRO) on your record, it is important to put your best foot forward and not give a judge or adjuster a reason to deny your request. Remove the obstacle, such as a FRO, to show that you are not a danger to the public, to show that your mental health substantially improved, and to show that expunging your mental health record is not contrary to the public interest. It is highly advisable to remove a FRO before removing a mental health record as a matter of best practice. If you have a FRO that needs to be removed, contact an attorney to address that first before expunging a mental health record.

FAQ: How long do I have to wait to have my mental health record expunged?

There is no rule when it comes to how long one must wait from the time of the commitment for when you can begin the process to expunge a mental health record. Nevertheless, you still have to demonstrate that you are not a danger to the public, that your mental health substantially improved since discharge from the commitment, and that expunging your mental health record is not contrary to the public interest. This is often done with the passage of a period of time and that
is a fact-sensitive question. Some people may need to wait longer than others before beginning the process to expunge a criminal record depending on what else if anything is in their background. Speaking to an attorney directly is the best way to answer such a fact-sensitive question.

FAQ: Why do I need a mental health expungement when I only have a voluntary commitment and I didn’t need one before?

The law recently changed in New Jersey where the existence of a voluntary commitment did not previously require a mental health expungement. Even if you were able to lawfully exercise your second amendment rights in New Jersey previously with the presence of a voluntary commitment, that is no longer the case. While a ‘doctor’s note’ or mental health evaluation to show you are presently fit own firearms was enough to overcome a presumption of unfitness for firearms ownership if you had a voluntary commitment, you now need to obtain a mental health expungement of your voluntary commitment records to lawfully exercise your second
amendment rights in New Jersey. There is no ‘grandfathering’ where a previous favorable mental health evaluation can enable you to lawfully exercise your second amendment rights in New Jersey. Regardless of the age of voluntary commitment, you now need a mental health expungement if the voluntary commitment takes place in New Jersey.

FAQ: What do I do if I have a mental health record from outside the State of NJ?

If you have a mental health record from outside the State of New Jersey, then you need to go speak to an attorney licensed to practice law in the state where the mental health commitment took place and have that attorney assist you in removing that prohibition from firearms ownership in your home state before you can lawfully exercise your second amendment rights in New Jersey. Even if you are a resident of New Jersey, it is about where the commitment took place and not where you reside. Remove your mental health record outside of New Jersey before exercising your second amendment rights lawfully while in New Jersey.

FAQ: My mental health record is expunged. Can it still be brought up later when I apply for a gun permit?

In some instances, the existence of an expunged mental health record can act as a discretionary reason to deny one their Second Amendment Rights in New Jersey but does not act as an automatic prohibition to lawfully own firearms in New Jersey. In addition, the State would have to convince a judge hearing a denial of a firearm application that the existence of an expunged mental health record can be used as a discretionary reason to deny an applicant a gun permit. If this happens, this is a fact-sensitive question and the state would have to show why the existence of a previously expunged mental health record can act as a discretionary reason to deny someone from obtaining their firearm permits in New Jersey by showing that despite the expungement of your record, this is still an indication of your present condition as it relates to the issue of fitness for firearms ownership. If you find that your mental health record has been expunged, and you are still being denied your ability to exercise your second amendment rights due to the existence of an expunged record, then having legal representation when appealing the
denial becomes crucial in helping you show that you should still be able to exercise your second amendment rights despite the existence of an expunged mental health record.

Talk to a Top NJ Mental Health Expungement Lawyer Today

Like many legal matters, a mental health expungement can be a complex and confusing situation to handle. Most individuals do not have the experience or knowledge required to understand the laws, requirements, and forms involved in requesting an expungement of their mental health records. An experienced New Jersey gun law attorney at The Tormey Law Firm has the unique insight and practical skill to assist you in understanding whether you are eligible for a mental health expungement, the laws regarding these expungements, and how to create the most comprehensive case supporting your approval. Our team can assist you with gathering the necessary documents to prove substantial improvement or recovery, as well as your “good reputation” documents and other supportive information that puts you in the best position for approval. If you have additional questions regarding a mental health expungement or exercising your Second Amendment rights after a successful expungement in New Jersey, contact our team today at (201)-556-1570 for a free consultation to discuss your circumstances.