Expungement FAQs

 

What does Expungement mean?
Expungement is a legal term that refers to post-conviction relief that operates to improve a person’s criminal record. Whether an expungement is available, and the precise relief that expungement affords, will vary from state to state. Some states do not offer any type of criminal conviction expungement. Others offer limited relief, such as withdrawing the guilty plea or verdict, entering a plea of not guilty, and dismissing the complaint. Still others offer an opportunity to wipe the slate clean. It is important to talk to an expungement lawyer in your area that is knowledgeable about various types of post-conviction relief (including expungement) in criminal cases.

Expungement of California criminal convictions takes several forms. Expunging misdemeanor convictions is accomplished through Penal Code Section 1203.4 in cases where probation is granted, and Penal Code Section 1203.4a in cases where probation is not granted. Expunging felony convictions where probation is granted is also done through Penal Code Section 1203.4; however, for “wobbler” offenses (meaning crimes that can be alleged as either a felony or misdemeanor), an experienced California expungement lawyer will want to reduce the felony to a misdemeanor pursuant to California Penal Code Section 17 (b).

Expungement of a California felony conviction where probation was not granted (i.e., a case where a term of greater than 1 year in California State Prison was imposed) is a little different. In those cases, appropriate relief will either be a Certificate of Rehabilitation and Pardon Application, or a Direct Application for Pardon with the Governor of California. It is important to discuss the facts of your case, and the sentence received, with an experienced California criminal defense attorney who is experienced in expungements and post-conviction relief to get advice about which is appropriate in a given case.

Other relief available to those convicted of crimes in California include: a Finding of Factual Innocence pursuant to California Penal Code Section 851.8, and the Sealing and Destruction of Juvenile Criminal Records in California Juvenile Court. The type of relief available is a function of many factors, including the type of conviction, the type of sentence received, whether the person seeking expungement relief is a California resident or not, whether the terms and conditions of probation were fully complied with, whether the person is now on probation or parole in another case, whether the person seeking post-conviction relief is facing charges in another case, and many other factors. That’s why it is essential to speak with a California criminal defense lawyer specializing in expungement law and who knows how to obtain the appropriate post-conviction relief for which you are eligible.

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Am I eligible for Expungement?
Eligibility for expungement of a California criminal conviction will depend upon many factors. Before a qualified expungement lawyer will be to give you information about your situation, he will need to know the answers to several questions, such as:

  •  For what were you convicted?
  •  When were you convicted?
  •  In what court?
  •  What sentence did you receive?
  •  Did you comply with each of the items the items the judge ordered you to do?
  •  Did you comply with each of these items on time?
  •  Was there ever a violation of probation, or parole?
  •  Are you on probation at this time?
  •  Are you facing any new charges at this time?
  •  What are your goals with respect to this expungement?
  •  Do you have any court records, or at least the case number, relating to the conviction?

If you do not have the answers to these questions, it is still worthwhile to contact a California criminal defense lawyer that knows expungement. If you do have answers to each of these questions about the conviction you’d like expunged, all the better. In either case, consultation with a California defense attorney about your expungement is free and at no obligation to you.

For most misdemeanor convictions, so long as all the terms and conditions of probation have been fulfilled, and there are no new charges pending, and the person is not on probation in any other case, expungement will be possible.

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Will I have to reference my arrest on a job application?
One of the chief benefits to expungement of a California misdemeanor conviction (or felony conviction where probation was granted) is that the expunged conviction may not have to be mentioned to a prospective employer. California Penal Code Section 1203.4, the key provision for expungement of California misdemeanor convictions and felonies in which probation was granted, provides that the Petitioner shall “be released from all penalties and disabilities resulting from the offense of which he or she has been convicted.” Further, while the order granting relief “does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery,” by implication, the individual receiving the expungement will not have to disclose the conviction to a private employer.

How do I know if I should have my conviction expunged?
Everyone who has suffered a conviction, and who is eligible for expungement, should try to have their conviction expunged at the first possible opportunity. Expunging a criminal conviction is not an overnight affair; better to have expunged the conviction and not need it for a while, than to lose a perfect job because of a prior criminal conviction. Expunging a criminal conviction is the first step to freedom from mistakes made in the past, and there is no reason to wait to begin that expungement process.

Even someone still on probation for an offense should explore the possibility of expungement. It may require a bit of extra effort, such as seeking a court order terminating probation earlier than the term originally imposed, but this effort will undoubtedly be worthwhile.

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