If granted, an expungement will result in the dismissal of charges against you. An expungement will not actually erase the records of your case. Instead, a successful expungement will change the disposition in your case from a "conviction" to a "dismissal". Once you've earned a dismissal, you are entitled to honestly state that you have no criminal convictions in your background (for most purposes).
There are a lot of criteria that you must satisfy before you are eligible to have your old case dismissed. Here's a simplified flow chart:
- Were you convicted of a crime? If so, keep reading. If not, then you have nothing to expunge. There is a separate process to seal arrest records in California if you were arrested and not convicted of any crime, but that's a subject for another blog post.
- If the crime was a misdemeanor, were you granted probation? Did you successfully comply with all the terms of your probation for the entire period? If so, then you are probably eligible for an expungement, but keep reading. If you ever violated the terms of your probation, then you are not automatically entitled to an expungement, but a judge may still grant one if doing so "serves the interests of justice".
- Felonies are complicated. If you completed probation, you are probably eligible. If you went to prison (or county jail under 1170(h)), there are a lot of factors. Call us for a consultation to figure it out.
- If the crime was a misdemeanor or an infraction and you were NOT granted probation, has more than 1 year elapsed since the conviction or since your release from custody? If so, keep reading.
- Are you currently on probation for any other case? You are not eligible for an expungement while you are currently on probation, but you MIGHT be eligible to terminate your probation early. Once you are released from probation, you may immediately become eligible to apply for your expungement.
- Do you currently have charges pending or outstanding warrants in any other case? You are not eligible for an expungement while you are currently fighting another case.
If you satisfy these criteria and you are clearly eligible for an expungement (you successfully completed probation without any violations, you are not currently on probation in any other case and you have no pending charges or outstanding warrants), then the process is fairly simple and straightforward. You or your attorney simply need to fill out the appropriate forms, serve them on the DA, file them with the court, and wait 3-6 weeks for the judge to mail back your signed copies of the court's dismissal order.
Expungement petitions can also get complicated, though. As mentioned above, judges have discretion to grant or deny applications when the record shows that you have violated probation (by missing a payment, failing to complete some court-ordered class on time, etc.). In those cases, the DA will argue that you are not eligible and that the petition should be denied. When that happens, your attorney must make a compelling argument to convince a judge that granting the expungement serves the "interests of justice".
These cases also get complicated if you are currently on probation. Again, judges have the authority to release you from probation early, but it can be difficult to convince them to exercise that power. They always start from the assumption that the sentence you received was fair and appropriate at the time it was imposed. If you did not agree that the sentence was fair when you accepted it, then you should have taken the case to trial. You may not simply argue "buyer's remorse" because you believe you got a bad deal. Instead, you must convince the judge that the deal you accepted is no longer fair. See the difference? The judge wants to see that you have been reformed (you've attended a lot of AA, etc.), you have learned your lesson, you have demonstrated exemplary performance during the time that you have been on probation, and most importantly, that there is some important reason why releasing you from probation now actually serves the most good for society. Valid reasons include job offers, opportunities to join the military, or some proof that being on probation prevents you from going back to college, etc.
If you or a loved one has questions about clearing up your criminal record with an expungement, or about trying to get off probation early, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
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