Expungement

What is an Expungement?

In California, an expungement is a legal process by which a criminal conviction resulting from a guilty plea, “no contest” plea or a finding of guilt by a judge or jury is set aside and the case is dismissed. A California criminal expungement is a legal process that petitions the Court to review a conviction to determine:

  • If probation was successfully completed, or
  • If no probation was granted, a year has passed since the conviction, and
  • All fines, restitution and reimbursement ordered by the court has been paid;
  • That the petitioner is not now on probation for another offense;
  • That the petitioner has no new or pending cases, and
  • That the petitioner is not now on probation for any other case.

The Court then allows the petitioner to withdraw their plea of finding of guilt, enters a “not guilty” plea, and orders the case dismissed. You will receive a copy of the Court Order when your case is complete.

Although the arrest, prosecution and conviction record still exists, a notation in the court file, as well as in the California Department of Justice and FBI files, reflect the entering of a plea of not guilty and the case dismissal. California Penal Code §1203.4 provides that once an individual’s criminal record is expunged, the person is released from “all penalties and disabilities” arising out of the conviction.

Why Expunge My Record? Is it Worth the Money?

  • There are a number of reasons to do so such as employment, housing, student loans or licensing. However, at least half our clients want to expunge their record as final “closure” on an old mistake – just for peace of mind.
  • A criminal record can prevent you from getting a good job. This is especially important because finding a job in today’s economy is tougher than ever and you want to do everything in your power to make yourself the most desirable candidate.  And this begins with being able to state that you have a clean criminal record.
  • Today more than ever, employers are doing background checks on current and potential employees. Thanks to the Internet and massive national databases, information is accessible to anyone interested in knowing your past. Expunging the criminal record dismisses and sets aside your felony and/or misdemeanor conviction from the public record.
  • A criminal record can also prevent you from obtaining credit, renting an apartment, voting, obtaining certain professional licenses (nursing, realtor, medical, and other professional licenses), running for political office, joining many professional organizations, and other benefits.
  • An expungement offers you a “fresh start” from an otherwise questionable past.

Does This Erase All Records and Destroy the Court File?

No. An expungment changes and updates the disposition of the case to reflect a dismissal under California Penal Code §1203.4. This means the Court file, the California Department of Justice, and the FBI update their files to show a new plea of not guilty has been entered and the case has been ordered dismissed and set aside by the Court. It does not remove all records of the case, nor does it make the conviction invisible.

What About Applying For Jobs?

Once your record is successfully expunged, if a Private employer asks if you have ever been convicted of a crime, you can lawfully respond with “no”  (except if you plan to become a peace officer, run for public office, apply for a professional State license ,or work for the California Lottery commission). However, many of those national database “record searches” are out of date and inaccurate. Unfortunately, many employers use them for background checks. Consequently, this means if the database is not updated on a regular basis, then the expungement may not appear in the results. We tell our clients the best response to a private employer’s question about criminal convictions is: “No, case expunged,” to alleviate any confusion regarding legal status.

On questions by Government Employers or Government Licensing Applications, if you are asked if you have ever been convicted of a crime, you must disclose the expunged case, but you can tell them it has been dismissed and set aside.

What Doesn’t a California Criminal Expungement Do?

  • You will not be allowed to own or possess a firearm until you would otherwise be able to do so (California Penal Code §12021).
  • Your dismissed conviction can still be used to increase your punishment in future criminal cases, if the offense is “prior-able”- such as a DUI or theft offense. (California Vehicle Code §23152,  California Penal Code §484)
  • An expungement will not relieve you of your duty to register as a sex offender (California Penal Code §290).
  • An expungement does not seal or destroy your criminal record as is commonly believed.

Can all Criminal Convictions be Expunged?

No. Not all criminal convictions can be expunged. Most misdemeanors and some felonies qualify for expungement. Under California law, felony convictions can be expunged if the defendant was not sentenced to state prison, and successfully completed probation. A judge usually has discretion, a choice, to grant or deny a petition for expungement. Also, If you have been convicted of another offense between the time you received your first conviction and the time you apply for expungement, your petition will almost certainly be denied.

Eligibility for Expungement

Eligibility for expungement is based on several conditions:

  • No state prison sentence for felony convictions
  • Successful probation completion
  • One year since date of judgment in non-probation cases
  • Compliance with all court orders
  • No subsequent offenses
  • Current honest and upright lifestyle.

A frequently asked question is whether an expunged criminal record can be reversed. The answer is “No.” You must keep in mind, however, that if you are arrested and or charged with a new crime, the expunged convictions can be used against you. In addition, on all government forms, you must reveal (upon request) your expunged criminal convictions, and you will still not be able to possess a firearm.

We are ready to assist you in determining your expungement eligibility and in filing the Adult Record Clearance Application with the State of California. We have the knowledge and the legal expertise to work diligently on your behalf and can draft all the necessary documents, prepare you for court and represent you before the judge.

If you need assistance in expunging your criminal record, contact Los Angeles criminal defense attorney Damian Siwek at DCS Defense.