HOW TO OBTAIN AN EXPUNGEMENT
OF A CRIMINAL RECORD
In
California, an individual convicted of an infraction, a misdemeanor, or a
felony and not sentenced to state prison can petition the Court for a dismissal
or “expungement” of their record. Under Penal Code Section 1203.4, citizens can
request a dismissal if they were given county jail time, probation, a fine, or
a combination of those three types of punishment -- rather than being sentenced
to state prison.
Upon
receipt of a formal petition, the court may withdraw the person’s guilty or no
contest (nolo contendere) plea, or even a guilty verdict, and enter a not
guilty plea. If the court set asides and dismiss the conviction under Penal
Code Section 1203.4, the individual is no longer considered to be “convicted”
of the offense and their record will be changed to show a dismissal rather than
a conviction.
This
article explains how one obtains an expungement of their criminal record and
what are the consequences of doing so.
When are is an individual
eligible for a dismissal of a conviction?
One
is eligible for dismissal of a misdemeanor conviction if:
The criminal defendant received probation for that
conviction and:
·
they
successfully completed probation or obtained early release;
·
they
also have paid all restitution and other payments that were ordered as a term
of probation;
·
they
are not currently serving another sentence or on probation for another offense;
AND
·
they
are not currently charged with another offense.
OR
You never received probation and:
·
Your
conviction was a misdemeanor or an infraction;
·
It
has been at least 1 year since the date you were convicted;
·
You
have complied fully with the sentence of the court;
·
You
are not currently serving another sentence;
·
You
are not currently charged with another offense; AND
·
You
have obeyed the law and lived an honest and upright life since the time of your
conviction.
What is the effect of an
expungement?
Once
all convictions have been dismissed, there are various circumstances where the
conviction cannot be considered by potential employers. Under most circumstances, private employers
cannot ask an applicant for a job about any convictions dismissed under Penal
Code section 1203.4. So when applying for a job in the private sector, a person
generally does not have to disclose a conviction if it was dismissed or
expunged.
Also,
in California, with certain exceptions, government employers and licensing
agencies are supposed to treat a person the same as if they had never been
convicted of any crime – if that conviction was dismissed.
If
you are filing a petition under Penal Code sections 17(b), 17(d)(2), 1203.4,
1203.41, 1203.43, and 1203.49, you can use the Petition for
Dismissal (Form CR-180). Ask the local clerk if you need to submit
additional photocopies of the petition and, if so, how many. Ask if their local rules of court require you
to serve copies of your petition on the district attorney or probation
department.
Remember,
you can only dismiss 1 conviction at a time. This means you must fill out a
separate petition for each conviction that you want to dismiss, but you can
file them all at the same time. If you are currently on probation, you will
need to deal with that conviction first; then you can proceed with the others.
You
need to mail or deliver in person to the Court your filing materials to the
clerk of the superior court for the county where you were convicted. If
required in your county, be sure to serve a copy of the entire petition and
supporting documentation on the district attorney or probation department.
It’s
very important to include any supportive materials such as letters of support,
school diplomas or transcripts, and if applying for early release from
probation, a letter to the judge explaining why you feel you should be released
from probation early. At the time you file your papers, the clerk will set a
hearing date.
You
may be required to attend the hearing. Be on time and dress appropriate for
court. The court cannot charge you a fee to file your petition, but the court
may order you to reimburse the court, city, and county up to $150 each after
the court decides your petition, whether or not your petition was granted.
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CHRISTOPHER A. KEROSKY of the law firm of
KEROSKY PURVES & BOGUE has been recognized as one of the top immigration
lawyers in Northern California for 10 years by “Super Lawyers”. He graduated from University of California,
Berkeley Law School and was a former counsel for the U.S. Department of Justice
in Washington D.C.
WARNING: The foregoing is an
article discussing legal issues. It is not intended to be a substitute for
legal advice. We recommend that you get competent legal advice specific to your
case.