What is an Expungement in California?
A California criminal expungement is a legal process that petitions the Court to review a conviction to determine:
If probation was successfully completed, or, if no probation was granted, a year has passed since the conviction, and that all fines, restitution and reimbursement ordered by the court has been paid; that the petitioner is not now on probation for another offense; that the petitioner has no new or pending cases and that the petitioner is not now on probation for any other case.
The Court then allows the petitioner to withdraw their plea or finding of guilt, enters a "not guilty" plea, and orders the case dismissed. You will receive a copy of the Court Order when your case is complete.
California Expungement Law Gets Better in 2014
SB 530 signed into law by Gov. Brown and effective January 1, 2014, amends Labor Code § 432.7 to include cases that have been "judicially dismissed". This means that individuals who have been granted or will be granted a California expungement under California Penal Code section 1203.4 cannot be discriminated against for employment, hiring, promotion, or termination based upon that expunged case in most circumstances.
Additionally, the law prohibits employers from seeking information regarding that expunged conviction. Certain exemptions to this law do exist, but they are primarily focused upon individuals seeking employment in law enforcement or other areas where law prohibits the employment of an individual convicted of certain offenses.
How does this help me?
California Expungement law (Penal Code Section 1203.4) provides in part:
"[Petitioner shall]...be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided..." (Emphasis added)
This also can help in International Travel situations; particularly in being allowed entry to Canada after an expungement. Canadian courts have held that officers should give full effect to mitigation which was granted by the jurisdiction of the offense in question. See, Saini v. Minister of Citizenship & Immigration 184 D.L.R. (4th) 568.
Do I need an Attorney to Expunge my case?
- Probably so. We hear every week from individuals who have tried to expunge cases on their own, and have had the expungement denied. They have no reason given by the court or the DA. The expungement law can be complex, requires certain protocols to be followed, and experience in criminal law is invaluable. Many judges and most prosecutors do not understand the expungement law very well, and often need to be educated as to the state of the law and appellate decisions regarding expungement. Many prosecutors make objections that have little or no legal merit, and an individual representing themselves is at a real disadvantage in such a circumstance. People v. Butler (1980) 105 Cal. App.3d 585, as an example, makes it clear that there is no requirement to show "rehabilitation" in order for an expungement to be granted.
Will I need to go to Court?
- No. We can almost always handle all Court appearances for you. That is covered in our fee.
How do I find out if I'm eligible for an Expungement?
- Call us! No on-line quizzes, just personal attention. Unless you were sent to State Prison, or were convicted of a serious sexual offense you are probably eligible for an expungement. Even if you had a probation violation, it is often still possible to expunge your case, see People v. McLernon, 174 Cal. App. 4th 569 (2009). All your fines and fees must be paid in full, however.
What about applying for jobs?
- If Private Employers ask if you have ever been convicted of a crime, you can respond with "NO". Labor Code § 432.7 was recently enacted prohibiting most employers from asking about, using, or investigating expunged ("judicially dismissed") cases. Please be aware there may be some confusion with some employers who are not aware of the law. We are happy to assist in reviewing specific questions on employment applications.
- On questions by Certain Government Employers, or Government Licensing Applications, if you are asked if you have ever been convicted of a crime, you must disclose the expunged case, but can tell them it has been dismissed and set aside.
Does this erase all records and destroy the Court file?
- No. An expungement changes and updates the disposition of the case to reflect a dismissal under 1203.4 of the Penal Code. This means the Court file, the California Department of Justice, and the FBI update their files to show a new plea of not guilty has been entered and the case has been ordered dismissed and set aside by the Court. It does not remove all records of the case, nor does it make the conviction 'invisible'.
How long does it take to update databases to show the Expungement?
- The Court will update their records in just a few days; the Clerk then notifies the California Department of Justice, and DOJ notifies the FBI. This can take 30-60 days. Private databases update based on their business model, but any competent company will update monthly. Usually you can count on about 60 days from the Court action as a pretty reasonable time for your expungement to show up in private and Government records.
Can a California DUI Conviction be Expunged?
- Yes. DUI convictions are one of the most common criminal offenses in California. Violation of 23152 or 23153 of the California Vehicle Code can result in conviction, fine, alcohol school and custody time. Such a conviction can have long lasting repercussions in employment, and adversely impact quality of life. A DUI expungement helps mitigate this mistake.
The legal standard for California DUI Expungement cases is higher than other expungements due to a rather recent change in the Expungement law.
Experienced legal counsel greatly increases the success rate in these matters as the court must make a finding that the expungement is in 'the interest of justice'. In many cases, a Felony DUI can be reduced to a misdemeanor and then expunged.
Do You Offer Data Base Update Services?
- No, we are not convinced those services are worth the extra costs to our clients.
- Private data bases get their information on a monthly basis from the court by purchasing the "Plaintiff/Defendant" index. This means any reputable background check company is updating their information regularly, and will reflect the expungement in a month or two.
- The California Department of Justice and FBI (NCIC) are updated by an abstract of judgment directly from the Court when the expungement is granted.
What is the difference between an infraction, a misdemeanor, and a felony?
In California, there are three (3) types of criminal offenses; they are defined as follows:
Infraction: An infraction is a minor offense such as petty theft under $50 (490 PC), and can only be punished with a fine. Most non traffic infractions can now be expunged.
Misdemeanor: A misdemeanor is a criminal offense that can be punished by up to one (1) year in jail, a fine of $1,000 or both. Examples of misdemeanors are such things as DUI without injury, theft, battery, and disturbing the peace.
Felony: A felony is a more serious criminal offense. Felonies carry with them the possibility of a fine of up to $10,000.00 as well as incarceration in the State Prison system for many years. Some felonies require registration as narcotics or sex offenders. If you served time in State Prison your case cannot be expunged.
Can a Felony conviction be Reduced to a Misdemeanor?
In many instances, yes. This is authorized by California Penal Code 17 (b), et seq. The conviction must be a "wobbler" (a crime that may be charged as either a misdemeanor or felony initially) and the Court retains discretion to grant a reduction even years after the case is over. Under California law, the reduction acts to make the conviction a misdemeanor "for all purposes" (See, People v. Gilbreth (2007) 156 Cal. App. 4th 53); this is a great advantage. If combined with an expungement, there is no additional charge to petition for a reduction also. More HERE.
What doesn't a California Criminal Expungement do?
- You will not be allowed to own or possess a firearm until you would otherwise be able to do so (Penal Code 12021).
- Your dismissed conviction can still be used to increase your punishment in future criminal cases, if the offense is "prior-able"- such as a DUI or theft offense. (VC 23152; PC 484)
- An expungement will not relieve you of your duty to register as a sex offender (PC 290).
Why Expunge my record? Why spend the money?
- There are a number of reasons to do so such as employment, housing, student loans or licensing. However, at least half our clients want to expunge their record as final "closure" on an old mistake- just for peace of mind.
How long does an Expungement take?
- Generally speaking, you can count on your expungement taking in the neighborhood of 90 to 120 days, but certain courts or older cases and can take up to six months. A few courts take less time.
When you call us for telephone consultation we will be able to give you a better idea of a more precise time that your expungement petition will probably take. That being said, expungement petitions are not a priority for the court system, and there is no time limit associated with expungement petitions, so sometimes delays of weeks or months occur. See our page on "How Long Does an Expungement Take?"
Do you accept Federal Court Cases, Certificates of Rehabilitation or Pardons?
- No. Because we concentrate on California Expungement law we can no longer take those cases. We suggest you contact a Federal law defense attorney, the Parole Department, or the Governor's pardon attorneys in Sacramento.
Do you "Guarantee" my Expungement?
- No. No experienced attorney will make promises as to a result in any case. Also, the California State Bar prohibits such practices; see, Rules of Professional Responsibility §1-400(E):
"A 'communication' which contains guarantees, warranties, or predictions regarding the result of the representation... are presumed to be in violation of rule 1-400..."
We believe a guarantee is a violation of the State Bar Rules; also we have been in the practice of law for 20 + years and understand the complexities of criminal litigation.