Expungement – Clear your criminal record
Expungement – Clear your criminal record
Clear Your Record Through Expungement
This article discusses how you can clear your record through expungement, which is a petition for dismissal under California Penal Code 1203.4 PC. The law in California allows persons to obtain a dismissal of their case.
After the dismissal is granted, you can truthfully state “no” if you are ever asked if you have been convicted of a crime.
That can help you get a job or pass a background check investigation. Your criminal records are updated to show a dismissal, instead of a conviction. There are some things you should know about the expungement laws in California before you clear your record through expungement. Those are discussed in detail below.
What is an Expungement?
An expungement is a type of criminal motion. Although what is called an “expungement” in other states is a little different in California, the process is the same, even if the effect isn’t. All criminal motions require that you give notice to the opposing party (in your case, that will be the prosecuting agency that brought the charges in your case), and must describe what you wish the court to do, and the reason why.
Why Would You Want an Expungement?
You may be worried about being able to get a job or rent an apartment because a conviction is on your record. The “expungement” under California Penal Code 1203.4 can allow you to have a misdemeanor conviction removed from your record in California.
The value of a PC 1203.4 expungement has increased significantly in the information age. Doing a criminal background check used to be a lengthy process, involving fingerprint matches and hand searches in various jurisdictions, controlled through law enforcement.
With the internet, information companies began indexing data from all criminal court records into massive computer databases that could be searched by name and date of birth. This new technology allows potential employers, licensing agencies, and professional organizations to conduct a background check of your criminal record in moments, simply, and easily.
This is where expungement can have benefits for you and help you compared to other candidates or applicants for a job. It may now be easy for potential employers to find out about a past criminal conviction–but if a conviction has been expunged, an employer cannot refuse to hire you based on that conviction.
Are you Eligible for an Expungement?
To obtain an expungement of your conviction, you will need to make sure the following qualify you:
- You have the right type of crime that can be expunged;
- You have completed all terms of your sentence or probation successfully;
- You had no violations of probation; and
- You do not have another criminal case pending currently, or have no other convictions after the case you seek to expunge.
If you were denied probation, you can still obtain an expungement. You still cannot be on probation or serving a sentence for any other case.
If your criminal case was reduced to an infraction, you are also eligible for an expungement under Penal Code section 1203.4a.
if you were sentenced to state prison to serve your sentence, you do not qualify for dismissal. You may qualify for a “Certificate of Rehabilitation” ONLY if you have been out of prison for more than seven (7) years and have had no further criminal convictions.
When can you get an Expungement?
You are eligible for dismissal of a conviction, and the court will dismiss your conviction, if:
You received probation for that conviction and:
- You successfully completed probation or obtained early release;
- You also have paid all the fines, restitution, and reimbursements ordered by the court as part of your sentence;
- You are not currently serving another sentence or on probation for another offense; AND
- You are not currently charged with another offense.
You never received probation and:
- Your conviction was a misdemeanor or an infraction;
- It has been at least 1 year since the date you were convicted;
- You have complied fully with the sentence of the court;
- You are not currently serving another sentence;
- You are not currently charged with another offense; AND
- You have obeyed the law and lived an honest and upright life since the time of your conviction.
What if you didn’t complete all the terms of your sentence or probation?
If you did not complete all the terms of your sentence, you will need to complete those, or have the court excuse those terms, before you can seek an expungement. Technically, if you have anything not completed from your case, your case is in violation of probation and is not closed. Violations of probation may carry an additional punishment, and your case needs to be closed before you can be considered for an expungement.
In the wake of a probation violation, the court has wide discretion as to whether to grant or deny the petition for PC 1203.4 expungement. The judge will look at a number of factors about you, your situation, and your case, and decide whether or not to grant the motion.
What if you had a violation of probation?
If you had a violation of probation, that was taken care of, you can still get an expungement. Without a probation violation, your expungement being granted is guaranteed – and this is one of the few guarantees in law. If you qualify and apply, you will get your expungement. If you had a probation violation, then your expungement is “at the discretion of the judge” – meaning that your petition must work extra hard to convince the judge why you should get an expungement of your conviction. You still cannot be on probation or serving a sentence, for any other offense, anywhere. (Penal Code § 1203.4)
What if you have another case pending, or had another conviction?
If you have another case, or currently have another case, then you either need to wait to finish and close the current case or disclose in your expungement petition that there is another conviction to the court. Having another conviction does not make you automatically ineligible for an expungement, but does require that the court exercise discretion and review both cases. Applicants must wait for one year after their conviction before applying for expungement (Penal Code §1203.4a).
What if you were never convicted but want to seal your records?
California Labor Code section 432.7 says that an employer cannot ask someone applying for a job for information about an arrest or detention that did not end in a conviction. Also, an employer cannot ask about any referral to or participation in any diversion program. An employer is also not supposed to look for any record of arrest (from any source) that did not end in a conviction. If this information comes to the employer’s attention anyway, the employer cannot use that record as a factor in hiring, promoting, or terminating that person. But this same code section says that the employer may ask an employee or someone applying for a job about an arrest for which he or she is out on bail or released on his or her own recognizance pending trial. A conviction, for purposes of this code section, includes pleas, verdicts, or findings of guilt.
In general, people are protected from having to disclose to an employer an arrest if it did not result in a conviction. Most people that have only been arrested fall under the protection of this Labor Code section.
At Miller & Associates, we have helped individuals clear their criminal records through expungement for the past 22 years. Our firm is trusted to clear records and allow individuals to live their lives without the penalties and stigma of having a past conviction. While most convictions can be expunged from a person’s criminal record, there are some that cannot be sealed. We work to help you start fresh.
Will an expungement seal your case?
If you apply for an expungement, you should know that if your petition is granted under Penal Code 1203.4, your case is not sealed. A criminal record is not actually “expunged” as it is in other states under this statute. That term implies complete erasure as if the case had never occurred. The more proper term and the one used in the California laws regarding expungement is “dismissal”. The conviction remains on your record for many purposes, including sex offender registration, for consideration in state or federal licenses, and for any immigration consequences. What the statute states is that you, as the defendant, are ‘released from all penalties and disabilities resulting from the offense’. There are numerous limitations to this relief.
How can an Expungement Help me get a State License?
One of the limitations to expungement is that the law states that you must disclose any cases that were expunged during application for any state or federal license. The state and federal licensing application forms usually ask not only about crimes but whether you have ever had a case expunged. So how can an expungement help you get a real estate license with a DUI, or a nursing license, teaching credential, pilot’s license or accounting license, or a medical license, psychology or therapist license, state bar license, mortgage license, or insurance license, given that you must admit to the expungement anyway?
An expungement helps you by showing the licensing agency that you have completed all terms of your sentence and that a court has reviewed your situation and decided to grant you an expungement of your crime. That is in all cases better than having the crime on your record, even if you must disclose the expungement.
One thing you should not do is to lie, or be dishonest, and answer the question about an expungement being granted as a “no”. The various agencies that grant a license can find out, and it’s a bigger violation to lie on an application form than to have the expungement.
What Does the Law Say About an Expungement?
California Penal Code 1203.4 PC, which is California’s expungement law (or specifically, the law allowing a petition for dismissal of the conviction), states as follows:
(“(a) In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code.”)
What does an Expungement Actually Do?
Technically, when you have an expungement granted, the expungement does all the following:
- It results in a new entry, retroactively, in the court record, showing the dismissal of the case;
- The expungement allows you to answer on many, but not all, job applications that you have not been convicted. If, however, you are applying for a government job or a job which requires a government-issued license, certificate or permit, or a job which involves a security clearance, the conviction will be discovered; in such cases, you should disclose the initial conviction and its later expungement;
- It prevents the use of the conviction to impeach you if you testify as a witness unless you are being tried for a subsequent offense.
- If the conviction was for a felony, expungement is the first step in obtaining a pardon (there is a long process for both the rehabilitation or expungement and a pardon).
What Does an Expungement Not Do?
- Remove the conviction from your criminal record “Rap Sheet” – California and FBI criminal history records will still show the conviction and the later dismissal “per PC 1203.4”, as of the same date of the plea of guilty.
- Reinstate the right to possess firearms, if it was taken away (there are exceptions to this, but a reduction to a misdemeanor may accomplish this if the offense is not one of violence;)
- Remove the requirement to register as a sex offender per Penal Code PC 290, under very specific situations only. If the expungement is granted, registrants must then complete and file paperwork requesting a Certificate of Rehabilitation, when eligible. A Certificate of Rehabilitation will relieve specified sex offenders from further registration. This is true for both felony and misdemeanor convictions.
- Allow you to omit the conviction from applications for government-issued licenses. Be careful of the trap in many government license applications – you may be asked if you have ever had an expungement granted, and you will need to be truthful about that. Often it is more of an issue to lie on an application than having a single misdemeanor crime on your record.;5. “Seal”, or otherwise remove the court case file from public inspection – anyone who knows where to look will be able to find the court case file (probation reports are in confidential files and are not subject to public inspection 90 days after sentencing;)6. Prevent the conviction from being used as a “prior” or “strike prior” to increase punishment on a subsequent conviction;7. Prevent the conviction from being used for impeachment purposes on a subsequent offense;8. Prevent the conviction from being considered and used to refuse or revoke government licenses and permits such as real estate sales licenses, insurance licensing, teaching credentials, bus driver licenses, security guard certificates, etc.; however, the expungement may reduce the weight given the conviction by the licensing agency.9. Prevent the conviction from being used by USCIS (Immigration) for removal and exclusion purposes.
When are you eligible for a dismissal?
If you were convicted of an infraction, a misdemeanor, or a felony and were not sentenced to state prison or put under the authority of the Department of Corrections and Rehabilitation, you can petition for a dismissal. This means you were given county jail time, probation, a fine, or a combination of those 3. If you are petitioning for a dismissal, the court, upon proper motion, may withdraw your guilty or no contest (nolo contendere) plea, or verdict of guilt if you went to trial, and enter a not guilty plea. Then the court will set aside and dismiss the conviction. From that point forward, you are no longer considered convicted of the offense. Your record will be changed to show a dismissal rather than a conviction.
You are eligible for a dismissal and the court has the discretion (choice) to grant you that dismissal if:
- You received probation but you did not get an early release, did not fulfill all the conditions of probation, or were convicted of any offense listed in Vehicle Code section 12810(a) to (e) BUT:
- You have paid all the fines, restitution, and reimbursements ordered by the court as part of your sentence; AND
- You are not currently charged with, on probation for, or serving a sentence for any other offense.
- It is up to the court to decide if your conviction should be dismissed, so make sure to give as much helpful information as possible to convince the court that granting you a dismissal is in the interests of justice.
What Convictions Are NOT eligible for an Expungement?
If you were convicted of any of the following offenses, you are not eligible for a dismissal under Penal Code section 1203.4a:
- Any misdemeanor within the provisions of Vehicle Code section 42002.1;
- Any infraction within the provisions of Vehicle Code section 42001;
- Any violation of Penal Code section 286(c), 288, 288.5, 288a(c), or 289(j); or
- A felony under Penal Code section 261.5(d).
The law states as follows under California Penal Code 1203.4 PC —
(“(b) Subdivision (a) of this section does not apply to any misdemeanor that is within the provisions of subdivision (b) of Section 42001 of the Vehicle Code, to any violation of [the California Penal Code] subdivision (c) of Section 286 [California’s law against sodomy with a child], Section 288 [California’s child molestation law], subdivision (c) of Section 288a [California’s law against oral copulation with a child], Section 288.5, or subdivision (j) of Section 289, any felony conviction pursuant to subdivision (d) of Section 261.5 [California’s statutory rape law], or to any infraction.”)
How Long Does an Expungement Take?
An expungement is a criminal motion. A criminal motion requires that a petition be researched, written, filed with the court, and served on the prosecutor’s office. The law requires that the prosecutor be given 10 days’ notice to object before the matter is decided, so the fastest a motion can be granted is 10 days. Given that it takes a few days to prepare and file the petition, it takes 15-30 days’ total before the court can consider it, and with older cases, it may take even longer.
Once filed, Expungements can take different amounts of time to complete:
- Misdemeanors in Orange County are typically granted within 4-5 weeks after the application is filed.
- Felonies in Orange County are usually expunged, or reduced to misdemeanors, within 4-6 weeks.
- Juvenile records can achieve expungement in 2-6 weeks.
How can your Arrest Record be Cleared or Sealed?
To have a case sealed, you cannot be convicted of the charge and you must prove you were factually innocent. A separate type of motion can be brought to seal your arrest records.
What Happens After an Expungement is Granted?
Once all your convictions have been dismissed, this is what you can expect from various situations you may face:
- Applying for private employment:
- Under most circumstances, private employers cannot ask you about any convictions dismissed under Penal Code section 1203.4. So when applying for a job in the private sector, you generally do not have to disclose a conviction if it was dismissed or expunged. But it is a good idea to read Penal Code section 1203.4 or California Code of Regulations section 7287.4(d), or to talk to an Orange County Expungement Attorney if you have questions about your rights and obligations regarding past convictions when applying for a job.
- Applying for government employment or a government license:
- For questions by government employers or on government licensing applications, if you are asked if you have ever been convicted of a crime, you MUST respond with “YES—CONVICTION DISMISSED.” In California, government employers and licensing agencies (except for police agencies and concessionaire licensing boards) will treat you the same as if you had never been convicted of any crime.
Restoring Your Firearm Rights Through An Expungement:
- You will not be allowed to own or possess a firearm until you would otherwise be able to do so.
- Your dismissed convictions can still be used to increase your punishment in future criminal cases.
- Your prior convictions may still affect your driving privileges.
- If you have been required to register as a sex offender because of a conviction, you must make a different motion to the court in order to be relieved of this requirement. A dismissal will not relieve you of your duty to register as a sex offender. Your status as a registered sex offender will continue to be available to the public on the Internet under Megan’s Law.
- If your conviction prohibited you from holding public office, you still cannot hold public office after that conviction is dismissed.
If you have any questions regarding expunging your record, contact Robert Miller & Associates today.
Benefits of Expungement
If you’ve been convicted of a crime in the past and are now looking for employment opportunities, you may have noticed that most applications ask if you have any sort of criminal history. Your answer could have an adverse effect on the employer’s decision to hire you. When you expunge or seal, your past conviction, you can usually truthfully answer that you have not been formerly convicted of a crime. The exception to this is if you are asked on a state or government application, and under penalty of perjury.
The law actually protects you with expungements and employment. California Labor Code section 432.7 says that an employer cannot ask someone applying for a job for information about an arrest or detention that did not end in a conviction. Since an expungement removes the conviction, it cannot be used against you. Also, an employer cannot ask about a referral to or participation in any diversion program. An employer is also not supposed to look for any record of arrest (from any source) that did not end in a conviction. If this information comes to the employer’s attention anyway, the employer cannot use that record as a factor in hiring, promoting, or terminating that person. But this same code section says that the employer may ask an employee or someone applying for a job about an arrest for which he or she is out on bail or released on his or her own recognizance pending trial. A conviction, for purposes of this code section, includes pleas, verdicts, or findings of guilt.
How can Robert Miller & Associates help me?
At Robert Miller & Associates, we have the experience and knowledge necessary to help you build a strong case for why your record should be expunged and can see your motion through. We have successfully handled expungements in Orange County over the past 26 years, and we are confident in our ability to help you, too. We strive to put your best interests at the top of our priority list, focusing on a favorable outcome from the very beginning.
Contact Us for Your Fresh Start Today.
The state of California has implemented many tough laws, and a misdemeanor conviction may affect your ability to get a job, attend a school, or find housing. If you have been convicted of a misdemeanor in California, you may want to get the conviction expunged so that it is removed from your record. At our Law Firm, our attorneys have a 100% success rate at having the petitions granted and we can help you with the process of getting a misdemeanor conviction expunged from your record. If you need to speak to a criminal defense attorney about your misdemeanor case or about getting a misdemeanor conviction expunged from your record, please call our office at (949) 682-5316.
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