A criminal record can have long-lasting repercussions on you and deprive you of many opportunities. Fortunately, all hope is not lost. It is possible to have the conviction or arrest cleaned off your record through expungement. Our Orange County Criminal Defense Attorney Law Firm team has prepared the following information to help you understand expungement in California.
What is Expungement?
In the modern-day economy, where securing a lucrative job is hard, you need to make sure you are the best candidate. Without a doubt, this includes cleaning your criminal record (something which expungement could permit you).
Also known as dismissal, an expungement is a relief after a conviction under Penal Code Section 1203.4. It releases you from all consequences and disabilities that come with a sentence. Expungement can also be instrumental when maintaining or acquiring professional licenses as well as joining several professional firms.
In other words, expungement offers a new chapter from your criminal past.
Who Qualifies for Expungement?
PC 1203.4 allows expungement for California felonies or misdemeanors as long as the individual:
- Successfully completed the probation (it can be misdemeanor probation or felony probation), and
- Is not presently:
- Prosecuted with a crime
- On probation, or
- Serving time
The term "successfully completed probation" means the applicant:
- Completed all conditions of their probation like community service, completed counseling programs,
- Paid restitution and fines
- Showed up in court (it could be through a lawyer or personally)
- Did not violate any law during the probation period
Are There People Who Aren't Eligible for Expungement?
A conviction can't be dismissed if sentenced to California state prison. However, there are exceptions to the offenses which would, on the present-day, be served in jail. Moreover, some crimes can't be dismissed. These include severe sex crimes committed against minors like:
- Sodomy with a child (PC 286c)
- Lewd act with a minor child (PC 288)
- Oral copulation with a child (Penal Code Section 288a(c))
- Rape where it is illegal for a person older than 21 years to have sexual intercourse with an individual younger than sixteen years of age (Penal Code Section 261.5(d))
Can You Get a Dismissal if You Didn't Meet or Violated Your Probation?
As previously mentioned, any person applying for expungement should successfully meet all the probation conditions. Fortunately, all is not lost if you have a probation violation. The judge will schedule a hearing to decide if you are an ideal candidate for dismissal.
Following your probation violation, a judge has the discretion to either deny or grant an expungement petition. The court will put the following factors into consideration:
- Your overall performance during the probation period
- The severity of your conviction
- Your criminal history
- Any other proof that proves you deserve this relief like an opportunity to get lucrative employment, strong ties in the community, and support of your family
What is the Relationship Between Realignment and Expungement Eligibility?
A person sent to California state prison either during judgment or due to probation violation is not eligible for expungement in California. However, there is an exemption for persons who could have spent time in county jail if they committed the offense after realignment.
Under PC 1203.42, Proposition 47 Realignment legislation is not automatic, but the court can grant it. The court will grant the petition if it thinks it will be in the interest of justice.
Qualification requirements include:
- The conviction should be one presently served in jail
- More than two (2) years have elapsed since you completed your sentence, and
- You are not:
- Under supervised release for an offense
- On probation
- Charged with an offense
- Serving time for any offense
How to Acquire Expungement Under California Penal Code Section 1203.42
You should file a petition with the court so that the court can consider you for dismissal under PC 1203.42. You can bring your petition either:
- Through your lawyer
- Through a probation official approved in writing, or
The judge can then either:
- If you have been sentenced after a plea of not guilty, set aside the guilty verdict, or
- Allow you to withdraw your no contest or plea of guilty and enter a not guilty plea
In both cases, the judge will dismiss the allegations against you. Then you will be relieved from all consequences originating from the crime the same way as a normal expungement under Penal Code Section 1203.4.
How Expungement Works
Before the judge grants expungement, you must meet several steps. Although not a must, it is wise to seek the help of a competent criminal expungement lawyer.
Your lawyer will follow the following steps:
- Analyze your case to check if you are eligible for expungement
- Study the relevant and current law
- File the necessary paperwork
- Show up in dismissal hearing in court
How to File a Petition for Expungement
Discussed below is a step-by-step guide on how to file an expungement petition successfully:
Determine if You Qualify for Expungement
If you were not sentenced to state prison, you qualify for expungement. A local prison commitment (AB 109 sentence) is also not considered a prison sentence and allows you to pursue expungement.
If convicted of a felony that is a wobbler, the court could reduce the felony to a misdemeanor. When deciding this, the court will put the following into consideration:
- Whether you owe the court any money
- You have an open case
- Whether you are on probation
Collect Necessary Information that Will Assist You in Filling Out Your Petition
Analyze the court papers or visit the court clerk's office and get the information below:
- Conviction date
- Code section
- Type of crime, such as infraction or felony
Filling Out the CR-180 Form
The next step involves filling out the CR-180 form. When filling the name of the offense in section one, be precise. When asked if the offense qualifies for reduction to a California misdemeanor and you are not sure, just write a question mark.
In section two, check the box if you are sentenced to probation. If you haven't completed probation or currently charged with an offense, you should fill out Form MC-O31 and explain why you should be granted probation.
Fill Out CR-181 Form
When filling out the CR-181 form, fill the details in the top boxes of the form's first page. Don't fill where the court makes orders. Write your name as well as the case number on the top of the second page.
Fill MC-210 Form
MC-210 form is used to check whether you should pay the probation and court charges linked to the expungement petition. These fees will be paid when the court grants you a petition.
Fill CLETs Form
The California Law Enforcement Telecommunications System (CLETs form) is what the court uses to get your criminal history and background. That is why it is essential to have a copy of your criminal history to check for mistakes.
Serve the Prosecutor with Your Proof of Service
Start with filling out an attached proof of service. Write down both your name and case number. Then find another person to serve the District Attorney. That individual must serve a copy of your papers to a worker of the DA office and ensure the employee fills the bottom part of the proof of service.
Prepare and File the Paperwork
Attach a copy of proof of service to copies of papers you want to bring to court. Visit the clerk's office and give your documents the judicial assistance. Then wait for approximately six months for the judge to schedule a hearing or rule on the request.
Attend the Court Hearing
If the judge schedules a hearing, ensure you appear in court. Otherwise, your petition will be denied.
Pay all the Necessary Fees
Your expungement petition and forms should be brought in the county where you were convicted. The fees range between one hundred and twenty dollars and one hundred and fifty dollars.
If you're needy, you could request a fee waiver.
How Long Does it Take to Have a Record Expunged?
Generally, an expungement takes between ninety and one hundred and twenty days, but it could take longer. Numerous factors affect the duration the process takes. They include:
- The time between your conviction and the bringing an expungement petition
- Whether your case is in the current computer system at the jurisdiction where expungement should be brought
- Whether you were found guilty of a felony or a misdemeanor
- Whether the court requires a probation report prepared before your court hearing
Top Benefits of Expungement
The most significant benefits of expungement include:
Easier to Get Employment
To most people, the ability to secure employment irrespective of having a conviction is an essential benefit of expunging a criminal record.
Today, almost all companies conduct background checks before hiring employees. Usually, a background check reveals a person's record of arrest, probation status, and conviction. Additionally, employers ask job applicants if they have ever been sentenced for an offense.
The exciting aspect of expungement is the fact that if your criminal record is dismissed, you can legally answer "no" when asked if you have ever been sentenced for an offense. Moreover, companies are not permitted to take into account an expunged conviction revealed by a background check when deciding whether to hire an applicant or not.
Also, according to the Code of Regulations, a boss can't ask an applicant about their expunged California misdemeanor conviction.
An expungement also offers essential advantages to those looking for California professional licenses. Please note, even after your expungement, you should still reveal the conviction as far as an application for public office or application for a state license like real estate licenses or contractors' license is concerned.
Fortunately, most licensing agencies will grant state licenses to persons with expunged convictions. Also, others will count on the situation favorably in case you have successfully completed probation, as well as the dismissal process.
Most professional companies conduct a background check before inviting a person to hold or join a seat or position. The advantage of expungement is the fact that the negative consequences and stigma that comes with a conviction is reduced.
Trustworthiness as a Witness
An expunged previous conviction can't be used to impeach an individual's reliability as a witness in court unless the person is charged with another crime.
Typically, if you have a California felony criminal record and you are a court witness, the opposing side could question your eligibility by bringing up the felony conviction. However, they aren't allowed to do so if the conviction is expunged.
This advantage can be instrumental if you take legal action against another person or you were sued for compensation in a civil lawsuit, and your testimony is paramount to the case outcome.
Expungement Offers Satisfaction
Most people express a sense of relief after acquiring dismal. Although it will not erase their past, it assists in redemption and closure of a trying chapter in life.
Does Expungement Have Limitations?
Below are things that an expungement won't do:
- Overturn your suspended or revoked driver's license
- Restore gun entitlement per PC 29800
- End the responsibility to register as a sex offender according to PC 290
It is worth noting that an expunged conviction is considered a previous conviction when enhancing sentencing. For example, an expunged California DUI conviction is a prior conviction if you are charged with DUI later.
Also, your expunged conviction, which could be considered a strike, is still a strike under the Three Strikes Law.
When Can You Apply for an Expungement?
If you're eligible for expungement, you can file your petition to expunge your conviction before:
- Early termination of probation (the court should grant it), or
- Completion of probation.
Remember, you can only file a petition if more than two (2) years have elapsed since your sentence completion.
Is It Possible to Petition Expungement and Early Termination Simultaneously?
Often a criminal defense attorney can speed up the dismissal process by combining several motions into one.
A perfect example of this combination includes requesting the judge in one proceeding to:
- Reduce your felony offense to a California misdemeanor if the felony is a wobbler (A wobbler is a crime that can be charged either as a misdemeanor or a felony depending on the prosecutor's discretion)
- Grant you an early termination of probation if you adhered to your probation terms and conditions, and
- Expunge your conviction
Understanding How Destroying/Sealing Records is Different from Expungement
An expungement attorney will tell you that most people who want expungement also want to destroy or seal their criminal records. Sealing an arrest record under SB 383 is different from expungement.
Sealing if You Weren't Convicted of an Offense
Although employers are banned from inquiring about your arrest that didn't lead to a conviction, you can still seal the arrest record. The arrest record is eligible for sealing under the below:
- If you could establish that you were innocent of the offense - The fact that you were not sentenced does not mean you are innocent. You have to present evidence that there were no reasonable grounds to arrest you. If you think you meet the requirements for a declaration of innocence, you'll require an attorney's assistance to build the case.
- You were detained, but the prosecution team did not file charges, and the statute of limitations has already run on the crime which you were arrested
- Your case was dismissed
- The jury acquitted you after a trial
- Your conviction was reversed as well as dismissed on appeal
- You have successfully completed a program of diversion like the deferred entry of judgment (PC 1000)
Sealing an arrest record permits you to say that you were never put in police custody for an offense. It is because of sealing the record the court should declare you factually innocent.
Note, the arrest record does not qualify for sealing if:
- The defendant can still be prosecuted with any crime which caused their arrest
- The defendant deliberately evaded the police's efforts to prosecute their arrest
- The defendant was accused of murder or any offense that doesn't have a statute of limitations, and they haven't been found innocent or acquitted of the crime
Sealing Your Juvenile Arrest Record
Destroying your juvenile record has the same advantages as sealing an adult arrest record. You can seal your juvenile arrest record if:
- The juvenile court terminated more than five (5) years ago, or you are now an adult
- You have not been sentenced for any offense that involves immoral conduct or dishonesty as an adult, and
- There isn't pending civil litigation founded on your juvenile occurrence
After the court grants a motion to destroy your arrest record, it is sealed for three years and then destroyed.
How is Certificate of Rehabilitation Different from Expungement
If you were charged with a California felony and served your sentence in prison, you could use a Certificate of Rehabilitation to prevent the adverse effects of the conviction. Certificate of Rehabilitation (Penal Code 4852) is a court order, which is a declaration that you're rehabilitated from the offense that you were sentenced. In other words, it's a court statement that criminal history is history, and you're ready to be a productive citizen.
It restores numerous citizenship rights like permitting you to obtain state licenses and increasing employment opportunities. Additionally, it acts like a recommendation, as well as a pardon application.
To qualify for a Certificate of Rehabilitation, you should have:
- A felony conviction and a state prison sentence
- No imprisonment since the release from police custody, parole, or probation
- Evidence that you lived in California for at least five years before applying or three years if you were put on parole
- Proof of a pleasing rehabilitation period that starts the day you were released from police custody
It is worth noting that this form of conviction relief doesn't seal a criminal record or erase a felony conviction. It won't prevent the underlying crime from being counted as a previous conviction in case you are charged with a new crime. Additionally, it will not let you claim on a job application that you do not have a conviction record.
After the petition is brought, the judge will schedule a hearing, at which the defendant should prove that they have been rehabilitated. Before the hearing, the judge could require the DA to conduct an investigation.
During the hearing, the judge will need records and testimony about you like details about the crime, your behavior while in custody and after release.
What is the Governor's Pardon?
A governor or the U.S. president grants a governor's pardon. The pardon forgives you of a previous offense and gets rid of the conviction's consequences. Typically, it involves termination of active probation or sentence, release from police custody, and restoration of rights like the entitlement to serve on a jury or vote. Additionally, a pardon could be granted to a person who has already served their entire sentence.
Nevertheless, a governor's pardon doesn't get rid of all the consequences of a conviction. For instance, it won't stop the DA from using a pardoned crime from being well-thought-out to be a previous conviction should you get convicted of another crime later. You should also reveal the pardoned conviction to potential bosses on job applications. On top of that, a pardon will not stop your deportation if you are an immigrant.
To get a governor's pardon, you'll require an experienced lawyer who will compose a file which has a pardon questionnaire, biography, criminal history, and character letters. The file will help the Governor understand why you deserve another chance.
Frequently Asked Questions on Expungement
The details in expungement proceedings are not immediately clear to most people. Here are some of the questions that have been raised as they seek to understand expungement.
Are There Other Options of Restoring Your Firearm Rights?
As previously mentioned, an expungement will not have any effect on your entitlement to possess or own a gun. It will neither harm nor help. Fortunately, there are other options for restoring rights:
Depending on your conviction, you can have your felony case reduced to a misdemeanor. If the felony reduction option fails, you can file a petition for the Governor's pardon or Certificate of Rehabilitation. If you get a full release, the firearm rights will be restored. Nevertheless, if you received felony probation, the law requires you to expunge the conviction before seeking a pardon or Certificate of Rehabilitation.
Is It Possible to Have Your Possession of Marijuana Conviction Expunged?
You don't require to file an expungement petition if you were put into police custody or sentenced for marijuana possession, giving away, or transporting less than 28.5 grams of bhang. If the conviction was entered after January 1976, the record would be erased after two (2) years.
It is worth noting that this doesn't entail convictions of selling, transporting, or growing marijuana that exceeds 28.5 grams.
Find a Qualified Expungement Attorney Near Me
If you were convicted of an offense a few years back, you could be facing the stigma of the conviction. It often happens after a background check when applying for employment or renting an apartment. As a result, potential landlords and employers end up with the wrong impression of you. Additionally, your criminal record can affect other aspects of life, like immigration and child custody. One of the methods to get rid of the effects of the conviction is to talk with the expungement lawyers at the Orange County Criminal Defense Attorney Law Firm. Contact us at 714-740-7848 to answer all your questions.