Monday, June 18, 2012

What Can an Expungement Do for Me? Glad you asked.

In 1935, the California Legislature enacted section 1203.4 of the Penal Code, establishing the legal groundwork for our expungement process.  Since then, individuals who have been convicted of crimes now have a procedure for cleaning up their criminal records by demonstrating reformation and continued good conduct.

An expungement essentially dismisses a case against you AFTER you've successfully served all penalties, including payment of all fines and court costs.  An expungement will not completely erase the fact that you were ever arrested and charged with a crime.  Rather, it retroactively changes your "guilty" plea to "not guilty".  After your petition is granted, your conviction will show up as a dismissal on a court records search.   

Generally, in order to be eligible for the benefits of 1203.4, a petitioner must meet the following criteria:

1) You must have successfully completed probation for a felony or misdemeanor.

If you were sentenced on a misdemeanor or infraction and not given probation, you must wait one year from the date of your conviction or your release from custody, whichever came later.

If you were sentenced to prison on a felony and not given probation, you are ineligible for an expungement, but you may qualify for a gubernatorial pardon.

2) You must not have any other open / pending cases and you must not be on probation or parole in any other matters.

3) You must pay the $120-150 filing fee.

That's it.  Not terribly complicated.  There is usually no argument involved.

There still seems to be a lot of confusion surrounding expungements, and some valid debate over their actual value.  One popular misconception is that an expungement will "seal" your record, or completely erase any mention of the fact that you were once convicted of a crime.  As mentioned above, not so.  Even after your petition is approved, anyone who understands criminal law in California will STILL be able to see that you were arrested, convicted and that you later paid $120.00 for an expungement.

An expungement will not restore firearms rights.  If you've ever been convicted of any felony or certain misdemeanors, you may not be eligible to own or possess firearms.  An expungement will not have any effect on this.

An expungement will not have any effect on sex offender registration.  There is a procedure for having yourself removed from the Megan's Law website and from the statewide Sex Offender Registry, but a 1203.4 petition is not it.

If you ever apply to become a police officer, you're still going to need to disclose any conviction that has been expunged.  The same goes for applications to the State Nursing Board.  If you win the lottery, they're also interested in expunged convictions for some reason.

Finally, an expungement has no effect on any DMV actions against your driver's license.

So what's the point?  Why on Earth would anyone go through the process of expunging their old convictions if the conviction will STILL be a public record and they STILL won't be allowed to carry firearms?

The best reason to expunge old convictions is to improve your job prospects.  In California, it is unlawful for a prospective employer to discriminate against an applicant based solely on criminal charges that have been dismissed.  In fact, it's illegal for them to even ask about convictions that have been expunged.  If you read the fine print on most job applications, you'll notice that they probably ask about felonies and misdemeanors.  It also probably says that you need not disclose any conviction that has been dismissed pursuant to PC 1203.4.  If an old "Drunk in Public" ticket is standing between you and your dream job, an expungement might be right for you.

As mentioned above, there is usually no argument involved in 1203.4 hearings.  The issue is (usually) limited to whether or not the petitioner has successfully complied with probation for the entire term thereof and whether or not the petitioner has remained law-abiding.  If so, the petitioner has earned the expungement.  If the petitioner has NOT complied with probation or has NOT remained law-abiding, then he or she has NOT earned the expungement.  Judges do have some discretion to grant expungments where they have not technically been earned, but it usually takes a VERY compelling reason to convince them to do so.

The most common reason that expungement petitions are denied is for failure to successfully complete all of the terms of probation.  Typically, the court will deny an application if fines are still owed or if the petitioner has not completed a court-ordered program (e.g. CalTrans, Community Service, etc.).  If court records show that some term of probation is still outstanding, the DA will oppose the petition and the court will schedule a 1203.4 hearing to hear argument.  Argument is limited to whether or not probation was successfully completed.  If your petition is scheduled for a hearing, bring all of your documentation with you when you come to court.  You might be asked to prove that you have actually done all of the things that you were ordered to do.  It is very common for the court to lose or misfile paperwork so you'll want all of your receipts to show the judge that you paid your fines and took your classes as ordered.

As always, the smartest way to start the process is by speaking with an attorney.  A qualified criminal defense lawyer can at least tell you whether or not you're eligible for 1203.4 relief before you invest too much time, effort and money into the process.  When in doubt, call me for a free consultation. 714 449-3335. I'll look up your record and review any paperwork before I accept a dime from you.  As much as I want to take your money, I won't do so unless I can actually help.