An arrest or a “guilty” verdict for any criminal offense has far more reaching effects for you than just the specific penalties for that crime. Criminal convictions remain a part of your record for life regardless of the sentence imposed for your offense. Such records make it difficult for you to secure a job, enroll in college, lease an apartment, or even adopt a child.
In the current economy, where jobs are increasingly difficult to find, we worry about the state of our criminal record. Fortunately, if you have a prior conviction, expungement offers you an avenue for a fresh start. The attorneys at The LA Criminal Defense Law Firm have an in-depth understanding of the criminal defense procedures. We have the necessary experience to help you clean your criminal record.
What is Expungement?
Expungement is a process through which your arrest or conviction is legally erased from your criminal record. Often referred to as dismissal, expungement offers you post-conviction relief from all penalties that may arise from your conviction. It essentially dismisses your conviction record.
Section 1203.4 of the Penal Code is California’s law governing expungements. In an economy where job opportunities are declining, it is in your best interest to take every possible action to present yourself as the best candidate. Having a clean criminal record works in your favor. PC 1203.4 relieves you from the adverse ramifications of a conviction.
Although law enforcement officers may always access your criminal history, expungement presents a clean record to schools, employers, and also the general public. It offers you a fresh start from a criminal past.
Eligibility for Expungement
The provisions of PC 1203.4 legitimize expungement for misdemeanors or felony offenses provided that you:
- Complete misdemeanor or felony probation, or you receive early termination of probation
- Are not currently:
- Facing charges for a criminal offense
- Serving probation for any criminal offense
- Serving a sentence after a criminal conviction
- Your crime was not among the crimes that make you ineligible for expungement
To complete probation, you must:
- Complete all the conditions of your probation, such as paying fines and restitution, completing counseling programs, and community service
- Attend all mandatory court appearances either through an attorney or personally
- Not commit any crime during your probation
When you are not eligible for expungement
Your conviction cannot be expunged if you were sentenced to a state prison term except if the crime is currently punishable by a jail sentence. In addition, certain crimes such as sex crimes perpetrated against children cannot be expunged.
The offenses include:
- Any crime involving child pornography
- Sodomy with a person aged below 14 years, a violation of Penal Code 286(c)
- Lewd or lascivious acts with a person younger than 14 years in violation of Penal Code 288
- Oral copulation with persons below 14 years, as prohibited by Penal Code 288a
- Statutory rape (PC 261.5(d)) which forbids sexual intercourse between a person aged at least 21 years with a person aged below 16 years
- Forcible penetration using a foreign object
- Felony or misdemeanor lascivious acts involving a minor
What if you violated or did not satisfy your probation?
The primary requirement for expungement is that you complete all the conditions of your probation successfully. However, there is still hope even if you violated your probation terms. The court will schedule a special sitting to determine whether you are eligible for expungement.
Expungement is at the Court’s Discretion
The court exercises its full discretion in determining whether to allow or deny your expungement petition. The judge may evaluate elements such as, but not limited to:
- Your overall performance during your probation
- The gravity of the conviction
- Your criminal history
- Any added evidence that demonstrates why you deserve the relief such as:
- Support of your family
- A chance at getting a good job
- Strong community ties
How Proposition 47 Realignment Affects PC 1203.4 Expungement
Generally, you are not eligible for PC 1203.4 expungement if you received your state prison sentence during judgment or after violating probation. However, Proposition 47 provides for exceptions.
You are eligible for expungement if the penalty for your crime would have been a jail term (as opposed to a prison term), had you committed the crime after the passing of Proposition 47 in 2011. This exception is coded in Section 1203.42 of the Penal Code, but relief under this code is granted at the court’s discretion, not automatically. If you convince the judge that the relief is in the interest of justice, he/she can grant your petition.
For you to qualify for relief under Section 1203.42 of the Penal Code, the offense must be one that is currently punishable by a county jail term (not a prison term) and:
- Two or more years have elapsed since you finished your sentence for the crime, and
- You are currently not :
- Under supervised liberty for that conviction
- On probation for any offense
- Serving any sentence for any unlawful act
- Facing criminal charges for any offense
Obtaining a PC 1203.42 expungement
To obtain a PC 1203.42 expungement, you must petition the court. You may apply:
- Through an attorney
- By authorizing a probation officer in writing
After the court receives your application and decides to grant your petition, the court will give you the relief by either of two options:
- Permit you to retract your guilty plea or no contest, instead plead not guilty, or
- Set aside the guilty verdict if you were convicted after a “not guilty” plea.
Regardless of the option, the court will dismiss the allegations against you. Afterward, you will be liberated from all sanctions and disabilities attendant to the crime to an equal degree as that of regular expungement (PC 1203.4).
The Expungement Process
If you are eligible for expungement, you will:
- Get copies of your criminal reports. The Department of Justice provides the copies.
- Get form CR-180 titled Petition for Dismissal. You must complete the form then submit it in court. The court will charge a filing fee, but if you find the court fees unaffordable, you can complete and attach your “Request to Waive Court Fees” (Form FW-001) to your petition. Some courts may instead ask for a Financial Declaration. The court will decide whether to waive the fees.
You can fill out these forms online, print them, and take or mail them to the address indicated on the forms. The court must then follow several steps before granting you a PC 1203.4 expungement. Usually, the court decides within 8 - 10 weeks.
When filing your petition, you must attach an affidavit to your criminal record. The affidavit details the reasons why expunging your conviction is necessary. Such reasons include:
- You have been denied suitable employment continuously
- Your conviction presents barriers even after you completed your education or job training
- Your conviction appears in criminal background checks which makes it difficult to find and lease an apartment
- You wish to acquire a state or professional license
Misdemeanors and infractions only require the information on the petition form except if you committed new crimes or violated probation. However, Reckless Driving, DUI, and Driving after your License is Suspended requires additional paperwork. Also, petitions for felonies require extra paperwork and a written motion. A hearing will then be scheduled to determine your case.
In the expungement process, the timely filing of the requisite paperwork is critical. You must notify the prosecutor at least 15 days before the hearing. The notice allows the prosecutor to review your case, and oppose the application if necessary. Although it is not a requirement, having a criminal expungement lawyer is recommended.
The attorney will:
- Analyze your case to establish whether you are eligible for this form of relief.
- Conduct legal research on relevant and current law
- File the proper paperwork within the correct timeframes
- Appear in the specified court for your expungement hearing
Since your conviction cannot be expunged before you complete probation, your attorney can request early termination of probation. If you pleaded guilty or were convicted on felony charges for a “wobbler,” your attorney can petition the court for the charge to be reduced to a misdemeanor in preparation for expungement.
If the court allows your petition, the court will issue an order to dismiss your case. The judge will sign the order, which you will receive and keep as evidence that your conviction was expunged. After the court issues a dismissal order, that order is sent to the FBI, state databases, and other agencies for updating. The process may take several months. Even after dismissal, the offense remains on your criminal record. However, the record changes and shows that your conviction was dismissed.
Benefits of Expungement
In recent years, expunging criminal records has become increasingly significant. In the past, your criminal history was not likely to be detected by anybody except law enforcement. However, information companies are currently indexing criminal records into national databases. This technology allows professional organizations, licensing agencies, and potential employers to instantly access your criminal record using your name and your date of birth.
Although anybody can easily find out about your past criminal record, expungement releases you from the consequences of the conviction. It provides several advantages. These include:
- It is possible for you to obtain a professional license. Expungement removes some barriers to securing or maintaining professional licenses such as for doctors and nurses and joining various professional organizations.
- An expunged conviction is not applicable as a basis to challenge your witness credibility in court except if you are facing criminal charges in a subsequent case
- An expungement can help reduce the probability of adverse immigration outcomes such as deportation
- You can seek a felony reduction through the process of expungement. If you are petitioning for expungement for a “wobbler” offense, you can request the court to lessen the felony to a misdemeanor
A wobbler is an offense where the prosecutor uses his/her discretion to determine whether you should face misdemeanor or felony charges. The decision depeh3 gravity of the specific crime and your criminal past.
- There is no requirement for you to disclose the conviction to a potential employer. Presently, California law prohibits employers from seeking information about your criminal record in the initial stages of a job application. An employer can only request such information when there is a provisional offer of employment.
However, if you secure an expungement, the law does not require you to disclose the conviction even after you receive a provisional offer of employment. Additionally, it is unlawful for an employer to deny you work based on an expunged conviction.
Also, there is an exception if you are seeking government employment or jobs that require government-issued certificates, licenses, permits, or jobs that involve security clearance. In such instances, you need to divulge the initial conviction as well as the expungement because that information will be discovered.
- Obtaining an expungement provides an immense sense of relief. Although it does not erase your past, it vindicates you and brings closure to an unpleasant phase of your life. Such personal benefits cannot be quantified.
What an Expungement Cannot Do
Although expungement has several benefits, there are some limitations to how much an expungement can help you. An expungement cannot:
- Overturn the revocation or suspension of your driver’s license
- Restore your rights to own a gun after having violated Penal Code 29800, the law that prohibits possession or ownership of a firearm by a person convicted of specified offenses
- End your obligation to register in the state sex offender registry (Penal Code 290)
Also, an expunged conviction can still be considered a prior conviction in enhancing a sentence. For example, any expunged DUI conviction is always considered a prior if you are arrested for a subsequent DUIs. Additionally, under California’s three-strikes law, an expunged conviction still counts as a strike.
To avoid such consequences, you will need relief above a PC 1203.4 expungement. There are two types of remedies that provide additional relief. You may opt for a California Governor’s Pardon or a Certificate Of Rehabilitation. Furthermore, criminal records are available to the public. Therefore, the public can still access your criminal history even after expungement. To destroy or seal your criminal records, you must petition the court through a separate legal process.
When to Petition for Expungement
If you are eligible, you can only apply for expungement after a minimum of two years since completing your sentence. You can request the court to dismiss your conviction after either of these conditions, whichever is earlier:
- You complete probation
- You receive early termination of probation. Only a court can grant the termination
Your attorney can package several motions into one to accelerate the expungement process. He/she can use one proceeding to ask the court to:
- Allow for early termination of probation, granted at the discretion of the court if you have met the conditions of your probation
- Reduce your felony charge to a misdemeanor, if that felony is a “wobbler”
- Expunge your conviction
After you file your expungement petition, the court will generally schedule a hearing within two months to review your application. Attending the trial is not mandatory for you since most judges will allow your attorney to appear on your behalf.
Apart from legal fees, you must pay filing fees to the court where you filed the petition. The filing fees may vary across counties. Also, most California counties offer financial assistance if you demonstrate that the filing fee would be burdensome.
The Difference Between Sealing/Destroying Records and Expungement
The process of sealing and destroying criminal records is different from the expungement process. Also, the preconditions for both procedures are different. To seal your arrest records, the judge must pronounce you factually innocent. Sealing arrest records typically allows you to state that you have never been apprehended for a crime. Usually, a large number of people seeking expungement also want their criminal records sealed and destroyed.
The requirements to have your arrest records sealed and destroyed are:
- The prosecutor did not file criminal charges after your arrest
- The court dismissed your case after trial
- A jury acquitted you after a jury trial
- The court overturned and dismissed your conviction after you appealed
- You completed a diversion program
California Expungement Law: Frequently Asked Questions
How long will a conviction remain on record after expungement?
Even if you obtain a PC 1203.4 expungement, your criminal records will be maintained indefinitely. That criminal record will not automatically disappear after a certain time. Unless the court seals and destroys the evidence, your conviction will always be in your criminal record.
Who has access to my criminal history after I obtain expungement?
Criminal records are considered public records. Anyone can access your criminal record even if you obtain an expungement, except when the court seals your records. Often, the people who access criminal records include licensing agencies, schools, potential employers, and landlords.
How is my record expunged?
When expunging your record, the judge will set aside your plea of no contest, your plea of guilty, or your conviction. You will then enter a new “not guilty” plea after which the judge will dismiss your case.
How long does the expungement process take?
Generally, after you file your petition, the court will hear and determine your case within three months if the prosecutor does not object to your request. However, the exact period will depend on the county where you file your case. If you are actively searching for employment, your attorney can help you to hasten the process. After the judge issues a dismissal order, it may take several more months for criminal databases to update your records.
Will my felony charge be reduced to a misdemeanor charge before expunging my record?
If the crime was a wobbler, your attorney can petition and have the court reduce the felony to a misdemeanor before it is expunged. Where necessary, your attorney can also request early termination of probation.
After obtaining an expungement, can I say that I have no criminal record?
The most significant benefit of a Penal Code 1203.4 expungement is the ability to legally answer “no” when asked whether you have a criminal record, especially when seeking employment. However, there are exceptions if you are applying for:
- A public office or a job as a peace officer
- A job at the state’s Lottery Commission
- A state license
Will I get a better job after expungement?
Often, yes. If an employer does not conduct a background check, there is a likelihood that they will never discover the conviction. Legally, you do not have to disclose information about the sentence until the employer has made a conditional employment offer. However, even if the potential employer conducts a background check, your record will show that your conviction was expunged. The expungement is an indication that you are ready for a “fresh start.”
Will expungement help me acquire a state license?
Mostly, yes. A majority of the state licensing authorities usually require a 1203.4 PC expungement before issuing a license. But if an expungement is insufficient, your attorney can help you get a Certificate of Rehabilitation, a document that offers extra benefits.
What shows up when a potential employer conducts a background check after my record is expunged?
The information that appears depends on the kind of background check they conduct. If the employer conducts a standard background check, there is a chance that your case and the conviction will not appear. If the employer asks for fingerprints and a report from the California Department of Justice, your records will show your past case. However, the reports will also show the case dismissal and no conviction.
Contact an Expungement Lawyer Near Me
A criminal record may remain available to the public permanently. However, you do not have to suffer the consequences of your past actions for the rest of your life. Expungement offers a fresh start and an opportunity to continue living freely without necessarily having to disclose a previous conviction. If you or a loved one has a record that needs expunging, talk to The LA Criminal Law Firm at 310-935-1675. Our seasoned attorneys handle numerous criminal expungement cases within Los Angeles, CA. We can take over your case and possibly convince the judge to expunge your past conviction.