Expungement
of criminal records (either arrest or
conviction) is of critical concern to anyone
with a prior conviction, or contemplating a
guilty or no contest plea to a current offense. Expungement is a term that means different
things in different jurisdictions; generally, it
refers to the cleansing of one's criminal
record, or the sealing and destruction of arrest
and/or conviction information.
Because the law
and types of relief vary from state to state, it
is important to consult with a lawyer in the
state where the conviction occurred. Expungement,
when properly done, can remove hurdles to
gainful employment, professional licenses, and
bring closure and emotional relief. Therefore,
it is essential that one who is interested in an
expungement contact a lawyer that understands
the types of relief available, and how to obtain
them. The author of this article is a nationally
recognized authority in this area, and is
available for consultation.
This article will focus on the relief
available in California courts. Please consult
an expungement attorney in the jurisdiction
where convicted for specific advice and
direction.
This article deals primarily with misdemeanor
expungements; for information about
expunging
felony convictions, click here.
What relief is available?
Expungement can take many forms. The relief
available will depend on the type of conviction
(misdemeanor, felony, or "wobbler"), the type of
sentence received (probation with or without
jail time, state prison), the age of the
offender (juvenile or adult), and whether a
claim for factual innocence can be made out.
California criminal offenses are defined by
the type of punishment that can be imposed.
Misdemeanors are offenses that are punishable by
a fine, and/or up to one year in county jail.
Felonies are punishable by a fine, and by
custody in state prison. Wobblers are cases that
can be punished by either up to one year in
county jail, or by imprisonment in state prison.
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The most common type of expungement relief
available in California is authorized by
California Penal Code Section 1203.4. This
section provides, in pertinent part, that:
In any case in which a defendant has
fulfilled the conditions of probation for the
entire period of probation, or has been
discharged prior to the termination of the
period of probation, or in any other case in
which a court, in its discretion and the
interests of justice, determines that a
defendant should be granted the relief available
under this section, the defendant shall, at any
time after the termination of the period of
probation, if he or she is not then serving a
sentence for any new offense, on probation for
any offense, or charged with the commission of
any offense, 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.... The order shall state,
and the probationer shall be informed, that the
order 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.
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When does 1203.4 apply?
This section applies in any case in which
probation was granted, whether misdemeanor,
wobbler, or felony. If probation expires, or is
terminated by the defense lawyer bringing a
motion to terminate probation early (the court
has the inherent power to make orders respecting
probation pursuant to California Penal Code
Section 1203.3), the defendant may be able to
have the criminal conviction expunged, if all
other criteria are met.
Courts are divided with respect to the impact
of a probation violation during the course of
probation. Many of the courts in which the
author practices will grant the expungement,
even if there have been violations along the
way, so long as the other criteria are
satisfied. There are some courts, however, that
view a probation violation as vesting the court
with the authority to deny the expungement. The
language used at the beginning of Penal Code
Section 1203.4 appears to make the granting of
this relief mandatory; some courts take the
position that a probation violation makes that
relief discretionary.
The other criteria is set forth in the
statute itself: the person seeking expungement
must determine that the petitioner is not a)
serving a sentence of any offense, b) on
probation for any offense, or c) charged with
the commission of any offense. If any of these
three things are happening, the petition for
relief will be summarily denied.
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What happens when relief is granted?
Technically, the expungement under 1203.4 is
not an eraser of one's criminal record. What is
really happening is set out in the statute: the
plea of guilty or no contest is being withdrawn
and a plea of not guilty is being entered, or,
if there was a trial, the verdict of guilty is
being set aside. In either case, the court is
thereafter dismissing the charging document.
As noted in the statute, the probationer is,
thereafter, "released from all penalties and
disabilities resulting from the offense of which
he or she has been convicted," with certain
exceptions.
Job Applications
There is a split of opinion among those in
the legal community about exactly what this
means for those applying for a job and
confronted with the question "have you ever
been convicted of a crime?" Since the
statute says "released from all penalties and
disabilities," subject only to those
exceptions specifically set forth in the
statute, this author believes that the better
reasoned view is that the legislature meant what
it said, that "all penalties and
disabilities" means just that, and if the
legislature intended to say otherwise, they
would have said so. Therefore, once an order for
relief pursuant to 1203.4 has been granted, the
former-probationer can lawfully state that they
have not been convicted of the crime when asked
on a job application from a private (non-law
enforcement) employer.
Those exceptions, where disclosure is
required, are set out in the statute: "the
order 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."
This means that if applying for public
office, seeking any license from the state
(real estate, stock broker, doctor, lawyer,
etc.), or contracting with the California
State Lottery, the conviction must be disclosed
(although it can be disclosed as an expunged
conviction).
It is worth noting that applications to
become a Peace Officer, while not mentioned in
the statute, typically require disclosure of
expunged convictions.
It is also worth noting that in this day and
age of computers, internet, and the free-flow of
information, that a carefully worded disclosure
may be the best way to proceed, even if
disclosure is not required under the statute. I
work with my clients on an individual basis to
make sure that such a disclosure is crafted in
the event it is needed.
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What expungement does NOT do
Prior convictions: there are certain
crimes that are "priorable", meaning that if
arrested for a similar crime in the future, the
punishment may be enhanced. For example, petty
theft is a misdemeanor. However, petty theft
with a prior theft conviction is a wobbler,
meaning it may be punished as a felony or
misdemeanor. If someone is arrested for petty
theft with a prior, and the prior was expunged,
the fact of the expungement will not save the
person from being charged as a felony.
Prior DUI convictions: 1203.4
specifically states that expungement will not
have any impact on the use of a DUI conviction
as a prior. This means that if DUI conviction
number 1 is expunged, and the person is arrested
for DUI number 2 (within seven years), it
will be prosecuted as a second-offense DUI, with
all the enhanced punishments and penalties,
regardless of the expungement of DUI number 1.
Gun ownership: There are certain
offenses for which probation may be granted
(the first critical inquiry for expungement
eligibility) that prevent that person from
lawful gun ownership for a specified period of
time. An expungement will not restore those gun
ownership privileges.
Sex Offender registration: There are
also certain offenses where probation may be
granted (the first critical inquiry for
expungement eligibility) that require
lifetime registration as a sex offender.
The expungement pursuant to California Penal
Code Section 1203.4 does not provide as much
relief as most desire. It does not act as an
"eraser" of criminal records. It does, however,
have many benefits, chiefly in the area of job
applications in the private sector. However,
there is an emotional component as well: for
those that have suffered misdemeanor
convictions, and have learned their lesson,
obtaining an expungement provides a lifting of
the psychic baggage that many probationers have
carried for a long, long time. As to them,
expungement is a priceless commodity.
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