In California, an “expungement”, or Petition for Dismissal, is a procedure that releases a defendant from the consequences of their conviction. Under Penal Code 1203.4, expungements can be available to those convicted of either felonies, misdemeanors, or infractions. The basic requirements that must be met prior to filing for an expungement are:
- The defendant must not have served time in state prison as a result of their offense (some exceptions apply); and
- The defendant must have successfully completed their probationary period for the underlying conviction.
There are many benefits to an expungement in California. For example, current law prevents employers from considering, or even asking about, a prospective employee’s criminal record. However, this only applies prior to the employer extending a conditional job offer to the applicant. Once the offer is extended, the employer is then permitted to take into account the applicants record prior to hiring them. An expunged conviction, however, cannot even be considered even after the conditional job offer has been extended. As such, an expungement is often times the difference between obtaining a job, and missing out on one.
DETERMINING EXPUNGEMENT ELIGIBILITY
The first step in evaluating any expungement case is to determine if the client is even eligible to have their record cleared. Our firm will evaluate your case at no cost. Before accepting any case, we want to make sure that we will be able to help you. Our attorneys know exactly what questions to ask in determining whether or not you are eligible.
In addition to the two basic requirements listed above, there are some additional circumstances that could prevent you from being eligible. If any of the following are applicable to your case, it is important to talk with one of our experienced expungement attorneys to determine your eligibility:
- If you have any open criminal cases;
- If you are currently on probation for any offense (does not have to be the offense you are looking to expunge);
- If you are serving a sentence for any criminal offense (does not have to be the offense you are looking to expunge); or
- If you were convicted of a sex crime (some specified sex crimes cannot be expunged).
CALIFORNIA PENAL CODE 1203.4 – EXPUNGEMENT LAW
According to PC 1203.4, once an expungement is granted, the defendant is released from “all penalties and disabilities arising out of the conviction”. This is why your expunged conviction cannot be used against you in background checks and on job applications.
1203.4 ELIGIBILITY
Generally, you are eligible to have your felony or misdemeanor conviction expunged if:
- You have successfully completed your period of formal or informal probation (you may be eligible for an early termination of probation);
- You are not currently serving a sentence for a criminal offense;
- You do not have a pending criminal case; and
- You did not serve time in state prison for your offense.
PROBATION VIOLATIONS AND EXPUNGEMENT
As noted above, you must have successfully completed your probationary period prior to your expungement being granted. So what does it mean to have successfully completed probation? Many of our clients have completed probation, but may have had minor violations along the way. If you fall into this category, there is a good chance you are still eligible for expungement. In these cases, the court will often hold a hearing to determine if you are still a good candidate for expungement. The Judge will typically consider:
- The severity of the underlying crime;
- Your criminal record;
- Your performance on probation as a whole;
- As well as other circumstances specific to your case.
STATE PRISON VS. COUNTY JAIL – PROP 47 REALIGNMENT
In 2011 California passed Prop 47 which had a major impact on expungement eligibility. After Prop 47’s realignment, many convictions that would have resulted in state prison time, became eligible for county jail time. As noted above, a state prison sentence is generally a bar to expungement eligibility. However, if you served time in state prison, and your offense would have been eligible for county jail had it been committed after Prop 47, you may still be eligible for an expungement under Penal Code 1203.42. In order to qualify, two (2) years must have passed since you completed your sentence, and you must not be on supervised release, or probation.
THE EXPUNGEMENT PROCESS
As noted above, the first step in the expungement process is to evaluate whether or not you are eligible to file for an expungement. Our firm offers a free consultation in which one of our experienced expungement attorneys will evaluate your case. It is always recommended to talk with an attorney, as many of our clients were not initially aware they were eligible for an expungement.
If it is determined that you are eligible, your attorney will then have to conduct some legal research, and obtain the relevant documents and information from your underlying case.
Your attorney will then draft the necessary documents and file them with the appropriate court. There are specific time frames that must be complied with in regard to providing notice to the prosecuting agency. This is because the prosecuting agency has the right to object to your expungement.
Lastly, there may be a hearing in which your attorney can provide an oral argument to supplement the documents already filed with the court. After the hearing the Judge will determine whether your expungement is granted or denied.
THE BENEFITS OF AN EXPUNGEMENT
As noted above, there are a number of benefits to obtaining an expungement in California. Some of the most important are:
- Preventing a prospective employer from using your expunged conviction against you during the hiring process;
- Preventing additional hurdles when applying for a professional license with various state board entities;
- Preventing additional hurdles in regard to immigration laws and applying for citizenship; and
- Preventing your expunged convictions from being used to diminish your credibility as a witness.
EXPUNGEMENT MISCONCEPTIONS
Understanding what an expungement will not do for you can be just as important as understanding what it can do for you.
- Expunged convictions can still have an impact on your sentencing for subsequent convictions. For example, a subsequent DUI that occurs within 10 (ten) years of your expunged DUI conviction can still be treated as a 2nd Offense DUI. Additionally, even if expunged, a conviction that resulted in a strike under California’s Three Strikes Law, can still be counted as a strike against you.
- An expungement will not reinstate your driver’s license if your underlying offense resulted in a suspension or revocation.
- An expungement will not eliminate your requirement to register as a sex offender.
- An expungement will not restore your right to own a gun if your underlying offense prevents you from doing so.
Although an expungement may not accomplish the result you are looking for, it is still important to discuss your case with one of our attorneys. Often times your desired result may be accomplished through other avenues.
EXPUNGEMENT VS. RECORD SEALING
In many cases, we are contact by clients asking for an expungement, when what they are really looking for is to seal their record. It is not uncommon for an arrest not to lead to a criminal case. Additionally, even if a criminal case files, it does not always lead to a conviction. As such, many people are left with unnecessary arrests on their record. This can be corrected by sealing your arrest records. If any of the following are true, you are likely eligible to have your record sealed pursuant to Senate Bill 393:
- You were arrested, but never formally charged with a crime in court;
- You were arrested and charged, but your case was later dismissed;
- You were arrested and charged, but you were found not guilty after trial; or
- You were arrested and charged, but completed a diversion program or deferred entry of judgment program.
ORANGE COUNTY DUI EXPUNGEMENT
DUIs are one of the most commonly committed offenses in Orange County. Typically, a DUI arrest leads to misdemeanor charges, but in some cases, they can be charged as felonies. Regardless of the level of offense, a DUI on your record can have a long lasting effect.
However, DUI convictions can almost always be expunged, so long as you have successfully completed the terms of your probation.
THE ORANGE COUNTY DUI EXPUNGEMENT PROCESS
Generally speaking, as soon as you have completed your probationary period, you will be eligible to file for an expungement. Even if you are still serving your probationary period, under Penal Code 1203.3, you may be able to obtain an early termination of your probation. Generally, it is recommended that you serve at least half of your probationary period before petitioning the court to terminate it early. In Orange County, summary probation for a first DUI is typically 3 years.
The expungement process begins with filing a petition with the court that heard the underlying DUI. It is important to talk with an attorney who can assist you in filing the petition, as it will be reviewed directly by the Judge. If the petition is granted, your guilty plea will be replaced with a “not guilty” plea, and the case will be dismissed. If your underlying case proceeded to a trial, then the verdict will be set aside.
DUI EXPUNGEMENT AND JOB APPLICATIONS
Probably the biggest benefit in expunging a DUI conviction, is that it will greatly increase your chances of being hired at a prospective job. If your DUI has been expunged, your conviction cannot be used against you during a hiring or promotion process. As such, you will not even have to disclose your DUI conviction on the job application. Most importantly, your record wont even show that you were convicted of the offense. Rather, it will show that the case was dismissed.
DUI EXPUNGEMENT AND YOUR DRIVER’S LICENSE
Our clients often wonder if their DUI expungement will assist them in reinstating their driving privileges. The simple answer is that it will not. This is because the DMV is a completely separate entity from the court. The DMV can take its own independent action with respect to your drivers license. We take pride in our commitment to be open and honest with our clients, and ensure that they understand their expungement will not reinstate their driver’s license.
DUI EXPUNGEMENT AND SUBSEQUENT DUIS
It is also important to understand that an expunged DUI does still count as a “priorable” offense. This means that if you receive another DUI within 10 years of your expunged DUI, the new DUI will still be treated as a Second Offense DUI. This is important to understand, because the penalties become more severe with each DUI within a 10-year period. In Orange County, it is not uncommon for the prosecution to ask for jail time for a second offense DUI.
ORANGE COUNTY EXPUNGEMENT AND EARLY TERMINATION OF PROBATION
As noted above, you will not be granted an expungement if you have not successfully completed your probationary period. In Orange County, a DUI conviction will typically result in three (3) years of informal probation. However, it is not uncommon to have your attorney file a motion for early termination of probation after you have served at least 18 months of your probationary period.
CONTACT THE RECORD EXPUNGEMENT ATTORNEY LAW FIRM TODAY TO BEGIN YOUR EXPUNGEMENT
At the Record Expungement Attorney Law Firm, we will handle all aspects of your case, from start to finish. Don’t let your criminal conviction record haunt you forever. There are many steps that can be taken to put your past behind you, and help you begin moving towards your goals. Expunging your record will indicate that your case was dismissed, and will remove the conviction from your record. No longer will you have to state your conviction record on job applications. Contact one of our experienced attorneys today at 714-627-5727.
