Dismissing Past Convictions: Who, How, and When You May Expunge Your California Criminal Record.
What is an "Expungement"?
California Penal Code sections 1203.4 and 1203.4a permit most people convicted of a crime to have their convictions "dismissed", after their conviction, and after they have completed all terms of probation, including all victim restitution ordered. This is commonly called an “expungement.”
A Penal Code section 1203.4 dismissal is powerful because rather than having your prior conviction “erased,” your expungement attorney asks the court to permit you to withdraw your guilty plea, or vacate your conviction, and replace it with a dismissal of charges.
When Can I File?
Most expungement petitions are filed after probation ends for a conviction for Driving Under the Influence (DUI), in violation of Vehicle Code section 21352(a) or (b). Thus, using a DUI conviction as an example, you are eligible only after you complete all the terms of your probation, and the 36 months (typical time period for probation on first offense) has ended. However, your lawyer may be able to file a motion under Penal Code 1203.3 for an order to terminate your probation early, that is, if you are in need, and are again "deserving", based on your prior performance of your probation terms.
Who is Eligible?
Again, an expungement comes after a conviction, but for other people (i.e., you were arrested, but never charged? Arrested, charged, but not convicted?), you should read this other blog to discover the New California Laws granting you the right to send your arrest records to an incinerator in Sacramento. This blog applies only to those who have pled guilty and/or no contest to a misdemeanor crime with a probationary term, where probation has since ended.
But even if it took you a couple attempts, and you did finally complete all your terms of probation, and you are otherwise "deserving" of an expungement by your good conduct and/or character and in the interest of justice, you are still eligible.
How Do I File the Petition?
Your former attorney is the best person to contact to learn how to file your petition for dismissal. This is because it is hard to find specific dates and records of your former convictions, and in many cases, court records after 10 years may have been destroyed. (See Gov. Cd. sec. 68152.) But if you hire your former attorney, who's required by law to keep your criminal records forever, your expungement can be filed for you with so much as a phone call or an email to your former lawyer.
What Happens to My Criminal Record?
A dismissal under 1203.4 or 1203.4a vacates your conviction, however obtained, and replaces it with a dismissal. Thus your criminal record will show the charge was "dismissed."
For example, let's say you were convicted of a DUI in Los Angeles County, here is what the public will see when they find your criminal case online (now available to the public):
What Do I Answer When Private Employers Ask If I Have Been Convicted?
Under most circumstances, private employers cannot ask you about "dismissed" convictions under Penal Code section 1203.4. So, when applying for a job in the private sector (not a county or state government position), you generally do not have to disclose a conviction if it was dismissed or expunged. (see Cal. Cd. of Regulations sec. 11017.1(b)(3) ["employers are prohibited from considering the following types of criminal history, or seeking such history from the employee [or anyone else] […] when making employment decisions […] [par.] [a] conviction that has been judicially dismissed or ordered sealed, expunged or statutorily eradicated pursuant to law…."])
Applying for Government Employment or a Government License.
Although you may truthfully answer “no” when asked if you have a criminal record, you must still reveal the prior conviction, now dismissed, when applying for a state license.
For questions by government employers or on government licensing applications, if you are asked if you have ever been convicted of a crime, your answer is “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.
Can I Buy or Possess a Firearm After Expungement?
You will not be allowed to own or possess a firearm until you would otherwise be able to do so under law. A dismissal under 1203.4 of a felony - - with no reduction to a misdemeanor - - does not restore the right to possess a firearm, whether concealable or not. (See People v. Frawley (2000) 82 Cal.App.4th 784; Penal Code sec. 12021.)
What Will it Cost Me?
A Petitioner for dismissal (you if you file a petition) may be required to reimburse the court, whether or not the petition is granted and the records are sealed or expunged. The court determines this rate, but it may not be more than $150, and yes, you of course may ask the court to have your fee waived if you cannot afford this fee.
As to what your attorney would charge, call or email today for a free consultation.
Patrick Santos is a California attorney with 10 years' experience, State Bar Number 265982, call (310) 424-3050 for free expungement eligibility check, and take advantage of the law, or visit us on the web to learn more today!