Expungement is a method for cleaning up your state criminal record. There is no expungement for federal convictions. This procedure reopens your criminal case, dismisses the conviction, and re-closes the case without a conviction. In effect, you are no longer a convicted person. However, the case record itself will still exist, and the expungement will appear on your record.
It is important to understand that it does not "seal" your records. Moreover, if you had a juvenile conviction, you need to file a petition to seal that conviction since it is not sealed automatically.
We represent our clients in this process but for those who want to understand it further or cannot afford representation, this guide will be helpful. If you have had a misdemeanor conviction such as a DUI, petty theft or any other minor conviction it is still necessary to go through this process to get the conviction off your record no matter how many years ago. If you had a felony case, you may also want to have it reduced to a misdemeanor first and then have it expunged.
We represent our clients in this process but for those who want to understand it further or cannot afford representation, this guide will be helpful. If you have had a misdemeanor conviction such as a DUI, petty theft or any other minor conviction it is still necessary to go through this process to get the conviction off your record no matter how many years ago. If you had a felony case, you may also want to have it reduced to a misdemeanor first and then have it expunged.
Since most misdemeanor and felony cases in California are eligible, this is an important process for people to follow up on after they have completed probation and do not have any open cases. It is an important part of moving ahead with one's life and can also help with job opportunities and future licensing in professions. We often represent individuals who failed to clear up past records and assist them, but it is important to realize that this does not happen automatically when probation ends. Moreover, with wobbler offenses which can be reduced to misdemeanors upon completion of probation, that is also not automatic in most cases. It is therefore important to do this follow up work and many people put it off for years until they suddenly realize it is holding them back.
Not all convictions can be dismissed. Expungement is limited to cases in which the defendant was sentenced to county jail time, probation, a fine, or a combination of those three. Additionally, the Penal Codes permitting expungment of criminal records expressly prohibit certain types of convictions from being dismissed. Most of these exceptions involve serious vehicle code violations (those that result in two or more points on your driving record) or sexual offenses against minors. For a detailed list of exceptions see Penal Code § 1203.4 and Penal Code § 1203.4a.
THERE ARE 3 TYPES OF EXPUNGEMENT:
1. The first, governed by Penal Code § 1203.4, will expunge cases in which probation was part of the sentence.
2. The second, under Penal Code § 1203.4a, will expunge cases in which there was no probation.
3. The third, under Penal Code § 17, will reduce a felony conviction to a misdemeanor. This misdemeanor can then be dismissed. Felonies meeting the criteria under Penal Code § 17 are often called "wobblers," meaning they could be charged as either a felony or misdemeanor.
If you received state prison as your sentence, you will need to file paperwork for a Certificate of Rehabilitation, rather than a Petition and Order for Dismissal. More information is available from the California Department of Corrections and Rehabilitation at http://www.cdcr.ca.gov/BOPH/docs/apply_for_pardon.pdf
WHAT DOES AN EXPUNGEMENT NOT DO FOR YOU?
Although your conviction may be dismissed, restrictions resulting from the conviction cannot. An expungement does not:
o Remove the conviction from your criminal history. California and FBI criminal history records will still show the conviction and the subsequent dismissal.
o Seal the court case file from public inspection. The court file remains public record.
o Reinstate your right to possess firearms. In some cases, reduction of a non-violent felony to a misdemeanor may accomplish this.
o Relieve you of your duty to register as a sex offender. In some cases, this may be accomplished by a different motion to the court.
o Allow you to omit the conviction from applications for government-issued licenses. You must disclose your conviction and expungement in your license application.
o Allow you to omit the conviction from application for government employment. If you are applying for a government job, a job that requires security clearance, or a job that requires a government-issued license, certificate, or permit, you must disclose the conviction and expungement.
o Allow you to hold public office, if the conviction prevented you from doing so.
o Prevent the conviction from being used to refuse or revoke a government license or permit, such as real estate license, teaching credential, security guard certificate, etc.
o Prevent the conviction from being used as a "prior." The dismissed conviction can be used for determining sentencing enhancements in subsequent convictions.
o Prevent the conviction from being used by the DMV. Expunged convictions may be used to suspend or revoke driving privileges.
o Prevent the conviction from being used by US Citizenship and Immigration Services. In many situations, an expunged conviction may be considered for removal or exclusion purposes.
For most people, the benefits of an expungement far outweigh these restrictions. Under California Labor Code § 432.7, employers cannot ask about arrests that did not end in conviction, or about any diversion or similar programs. If the employer is aware of any such arrests or programs, they cannot use this information to make hiring, promotion, or firing decisions.
Once a conviction is expunged, it becomes an arrest that did not end in conviction. Legally, you may answer "No" to these types of questions when applying with a private employer. Keep in mind, though, that background checks typically go back 10 years, and employers can see that you had a conviction dismissed. Answering "No" may look dishonest. A better response may be "Yes, expungement granted." When applying for government employment, you must disclose the conviction and expungement.
STEP-BY-STEP INSTRUCTIONS
Step 1. Determine if You are Eligible
to Expunge Your Conviction
o Your conviction must meet the guidelines described
in Penal Code § 1203.4, Penal Code § 1203.4a or Penal Code § 17. These
code sections provide very specific guidelines about qualifying charges and
sentences. Be sure to read those code sections carefully, because there are
many exceptions.
o At least one year must have passed since your
conviction.
o You must have completed the terms of your sentence.
In most situations, the court will not grant an expungement until your sentence
is complete. This means you have completed your period of incarceration and/or
probation, and paid all fines, fees, and restitution in full. You must also
appear at all DMV hearings, and pay all DMV fines and fees. If you wish
to make a payment, or set up a payment plan, contact the Department of Revenue
and Recovery (DRR).
o If you are still on probation for this (or any
other) conviction, you may ask the court to terminate your probation early.
That is a separate procedure. You will need to complete this early termination
process before you can go further.
o You cannot be serving a sentence for any offense, or
be charged with the commission of any other offense. If you
are still on probation for another offense, you will need to complete the terms
of that sentence, or have that probation terminated prior to petitioning for an
expungement.
o You must not have received another conviction within
one year of the first.
o Your probation for the conviction you're trying to
expunge must not have been revoked, and not reinstated.
Step 2. Determine which Type of
Expungement Applies to Your Situation
As mentioned above, there are three types of expungement
available. The type you use depends on the original conviction and sentence.
The information below will help you determine which type of expungement
is right for you.
a) Misdemeanor
Convictions
o Probation ordered and completed
File
a Petition for Dismissal under Penal Code § 1203.4.
File a Motion to Terminate Probation Early in the superior court where your probation is pending. If that is granted, file a Petition for Dismissal under Penal Code § 1203.4.
File a Petition for Dismissal under Penal Code § 1203.4a.
File a Petition under Penal Code § 17(b)(3) to reduce the felony to a misdemeanor, and Petition for Dismissal under Penal Code § 1203.4 to expunge the misdemeanor.
File a Motion to Terminate Probation in the superior court where your probation is pending. If that is granted, file a Petition under Penal Code § 17(b) to reduce the felony to a misdemeanor, and Petition for Dismissal under Penal Code § 1203.4 to expunge the misdemeanor.
If you were sentenced to State Prison, you are not eligible for the procedures described in the guide. Instead, you will need to apply for a Certificate of Rehabilitation and/or a Pardon. More information is available from the California Department of Corrections and Rehabilitation athttp://www.cdcr.ca.gov/BOPH/docs/apply_for_pardon.pdf
There are two forms you will need to expunge your conviction. The same forms are used for all three types of expungement. Click here for instructions for completing these forms.
o Probation ordered, but not yet completed
o Probation not ordered
b) Felony Convictions
o County Jail and/or Probation ordered and completed
o Probation ordered, but not yet completed
o State Prison was ordered
Step 3. Obtain a Copy of Your Criminal
Record
You will need a copy of your criminal record or case information
for each conviction you wish to expunge. Your criminal record or case history
includes information essential to filling out the expungement papers.
To get case information for your convictions, go the website for
the superior court in which you were convicted and search through the case
index if you do not have the records. In some cases, you may need to set
up an account.
For a copy of your state-wide criminal record, visit a Live Scan
fingerprinting site. After providing your fingerprints and paying the required
fee, a copy of your criminal record will be mailed to you. To find a Live Scan
site near you, see http://ag.ca.gov/fingerprints/publications/contact.php.
More information about requesting your statewide criminal history is available
at http://ag.ca.gov/fingerprints/security.php. The
fee may be waived if you are low income. Call the Attorney General's Records
Review unit at (916) 227-3835 for more information.
Step 4. Complete the Required Forms
o Order for Dismissal (CR-181) http://www.courts.ca.gov/xbcr/cc/cr181.pdf
It is often a good idea to attach a declaration stating why you
want the expungement and explaining your situation in life. In this
declaration, you may want to discuss:
o Your plans for the future;
o The reasons you offended, and how your life is
different today than it was when you offended;
o How the conviction has hurt your employment
chances;
o If you have received any training or education
since your conviction;
o Any occurrence in your life that changed how you
interact with your community; and
o Any 12-step or religious affiliations you have.
All declarations submitted to the court must contain the words
"I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct." Declarations should be
no more than one page long, and may be typed or handwritten. You may use Form MC-030, "Declaration," if you wish. Letters
from employers, clergy, or other community members can be convincing, but
should not be attached to your petition. You may provide these to the judge at
your hearing.
If you have changed your name since your conviction, fill out
the forms with the name under which you were convicted. Sign the forms with
your current name.
You will need to complete a separate Petition and Order for each
conviction you wish to expunge.
Step 5. Copy and Assemble your
Documents
If you are presenting yourself, take five copies each of:
o Petition for Dismissal (CR-180)
o Order for Dismissal (CR-181)
o Declaration, if included.
Two-hole punch the original and all copies of your
documents. Assemble:
o Proof that all fines, fees and restitution are
paid in full
o Processing fee or Fee Waiver forms (see Step 6)
o Self-addressed stamped envelope if you want a copy
of the signed Order mailed to you.
Step 6. File Your Forms
If you are representing yourself, expungement forms are filed in the county where you were
convicted. Each county may have different rules, so check with you local county court to determine the correct location to file. For courthouse locations, see http://www.courts.ca.gov/superiorcourts.htm.
There is a fee for processing your Petition. Penal Code § 1203.4
sets the maximum fee for probation cases where probation was ordered at $150.
Penal Code § 1203.4a sets the maximum fee for convictions without probation at
$60. Fee waivers are available for low-income petitioners.
Step 7. Serve Your Forms
Service is a formal way of giving copies of court documents to
all parties in a case. In an expungement proceeding, the District
Attorney and Probation Department must be served.
In some counties, the court will serve your papers for you.
Contact the criminal court clerk to determine the service requirements and
procedures in that county. Many will serve the documents for you. If not, when
you file your documents with the court, the clerk will give you stamped copies
of your papers. These must be served on the District Attorney and the Probation
Department in that county. The person performing service will then complete a
Proof of Service form, and turn it in to the court. If you do not complete this
step, it will delay your expungement petition from being granted.
Step 8. Attend Your Court Hearing, if
Required
For many people, no court hearing will be scheduled. Instead,
the petition is automatically granted as long as you have met all the
requirements. On your petition, the clerk will indicate the date by which
the court will make a ruling. If a hearing is required for your case, the
court will notify you of the hearing date.
Step 9. If
Your Petition is Denied
If you attend the hearing, you may ask the judge what you can do
to get your conviction expunged. You may re-file your petition for expungement
in 3-6 months, after you've made the changes recommended by the judge.
Posted by Tracy Green, Esq.
Tracy Green is an experience Los Angeles criminal defense attorney who is dedicated to aggressively representing clients and is committed to criminal justice issues. One of her concerns is the large number of individuals who have state misdemeanor and felony convictions but are not cleaning up their criminal records and expunging their convictions simply due to lack of knowledge or funds.
