EXPUNGEMENT

CALIFORNIA EXPUNGEMENT

A California expungement is a legal process whereby a criminal defendant requests the court to withdraw a plea of guilty or no contest to a NOT-GUILTY plea and have the case dismissed. It is also known as criminal record clearing or erasing criminal records

More good news. Effective January 1, 2014, (SB 530) if you have been granted an expungement, potential employers cannot discriminate you for employment, promotion, or termination based your expungement in a majority of cases. This means that an expungement may benefit you in your search for employment, promotion, loan or college or other admissions

HOW DOES A CALIFORNIA EXPUNGEMENT BENEFIT ME?

A California expungement, if granted, allows you to withdraw your prior plea of guilty or no contest to a NOT-GUILTY plea and have your criminal case dismissed or cleared

HOW DO I QUALIFY FOR AN EXPUNGEMENT?

Depends. If you were granted probation and successfully completed it for a conviction not involving a serious sexual crime or otherwise you were not sentenced to state prison, you are likely eligible for an expungement. However, there are many exceptions to this rule

WHAT IF I WAS CONVICTED FOR AN INFRACTION CRIME?

Depends. Effective January 1, 2011, (AB 2582) expungements are now allowed for certain non-traffic infractions such as petty theft, trespass, etc. Before this new law, you were only allowed expungements for misdemeanors and felonies

WHAT IF I WAS CONVICTED FOR A MISDEMEANOR CRIME?

Most likely, yes.

Informal Probation Granted: You must have fully served your probation term with all fines, fees, community service, and other penalties completed before you can request an expungement. If you are still under probation, you are NOT qualified for an expungement unless the court grants your motion for early probation termination

No Probation Granted: You must wait one (1) year from the conviction date to request an expungement

WHAT IF I WAS CONVICTED FOR A FELONY CRIME?

Depends. A felony is punishable by incarceration in State Prison as well as a fine of up to $10,000

Incarceration in State Prison: You are NOT qualified

Incarceration in County Jail: You may be qualified based on the felony

Felony that Can Be Reduced to a Misdemeanor ("Wobbler"): You are qualified as long as you were not incarcerated in state prison. If you qualify, you can separately or simultaneously petition the court to reduce your felony conviction to a misdemeanor conviction

Felony that Can Not be Reduced to a Misdemeanor ("Non-Wobbler"): You are NOT qualified

Informal Probation Granted: You must have fully served your probation term with all fines, fees, community service, and other penalties completed before you can request an expungement. If you are still under probation, you are NOT qualified for an expungement unless the court grants your motion for early probation termination

No Probation Granted: You must wait one (1) year from the conviction date to request an expungement

WHAT IF I WAS CONVICTED FOR A FELONY CRIME?

Depends. A felony is punishable by incarceration in State Prison as well as a fine of up to $10,000

Incarceration in State Prison: You are NOT qualified

Incarceration in County Jail: You may be qualified based on the felony

Felony that Can Be Reduced to a Misdemeanor ("Wobbler"): You are qualified as long as you were not incarcerated in state prison. If you qualify, you can separately or simultaneously petition the court to reduce your felony conviction to a misdemeanor conviction

Felony that Can Not be Reduced to a Misdemeanor ("Non-Wobbler"): You are NOT qualified

Informal Probation Granted: You must have fully served your probation term with all fines, fees, community service, and other penalties completed before you can request an expungement. If you are still under probation, you are NOT qualified for an expungement unless the court grants your motion for early probation termination

No Probation Granted: You must wait one (1) year from the conviction date to request an expungement

WHAT IF I VIOLATED MY PROBATION?

In most cases, you may be qualified under People v. McLernon, 174 Cal. App. 4th 569 (2009)

WHAT IF I'M STILL UNDER PROBATION?

If you are still under probation, you are NOT qualified for an expungement unless the court grants your motion for early probation termination

WHAT IF I COMPLETED A DRUG DIVERSION PROGRAM UNDER PENAL CODE 1000 BUT WAS NOT CONVICTED?

Unfortunately, even if you have successfully completed all your terms under a diversion program and your case was deemed dismissed, your criminal record is still available to the public and will trigger a hit on a background search. Nevertheless, it is possible to seal many types of drug related diversion records depending on your case per a court order. The procedure may take 60 to 120 days depending on your case

HOW CAN AN EXPUNGEMENT HELP MY CAREER OR JOB PROSPECTS?

If you are granted an expungement, you can honestly answer "NO" to any inquires regarding your criminal conviction in the private sector (e.g. a private employer, housing, private loans, etc). This may help you immensely in seeking a job

DOES AN EXPUNGEMENT SEAL MY ARREST RECORD?

No. Sealing your arrest record is a separate process that involves the burden of proving "Factual Innocence" which is a very high standard and often difficult to prove. Basically, you must convince the court that you were factually innocent as to your arrest, which is difficult unless you were misidentified, etc.

WHAT ARE THE LIMITATIONS OF AN EXPUNGEMENT?

For one, you must disclose your conviction and its expungement to a government employer and any other government agencies (e.g. United States Citizenship and Immigration Services, DMV, FBI, LAPD, etc.). That said, it is often believed that an expungement looks much better than not having one at all. Also, you will not be allowed to own or possess a firearm until you are legally able to do so under Penal Code §12021. Furthermore, an expunged record will not relieve you from registering as a sex offender if you are required to do so under Pendal Code §2901

Finally, a "priorable" element of a crime (e.g. DUI and theft crimes) will not be affected by a prior expungement. For example, if you successfully expunged your First DUI conviction and subsequently you were arrested for a subsequent DUI within 10 years, you will still be charged for your Second DUI

WILL THE PROSECUTOR OBJECT TO MY EXPUNGEMENT AT COURT?

Yes, prosecutors will often make objections to your expungement at court. The types of objections vary from case to case. As such, you should highly consider hiring an experienced expungement attorney to represent you with your expungement due to its complexity

HOW LONG DOES IT TAKE TO HAVE MY EXPUNGEMENT UPDATED IN THE DEPARTMENT OF JUSTICE?

Upon the granting of your expungement, an abstract of judgment from the court is sent to the California Department of Justice, U.S. Department of Justice and FBI (NCIC), updating their records upon receipt. Unfortunately, in the private sector, updates may take longer since private databases are usually updated monthly

CAN A LAWYER GUARANTEE AN EXPUNGEMENT?

Never. A California attorney is unable to guarantee a particular result for any case, including an expungement. If you contact a lawyer who guarantees the results of your expungement or any case, that's an instant red flag. Communication(s) which promises guarantees, warranties, or predictions regarding the result of a legal representation, they are presumed to be in violation of the Rules of Professional Responsibility 1-400(e)

WHAT IF MY EXPUNGEMENT PETITION IS DENIED?

If your petition is denied, you may have the option to re-file your expungement