Question 2: What is an expungement?
Answer 2: In California, the law regarding expungements is governed by Penal Code Section 1203.4 and 1203.4a. An expungement reopens your criminal case, dismisses and sets aside the conviction or plea (of guilty or no contest), 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. There are three types of expungements:
(1) Penal Code 1203.4 allows the court to expunge cases in which probation was part of the sentence. For example, straight probation cases or those with probation and county jail. The court must grant these expungements if you are not on probation, have completed all terms of your probation (including restitution and fines) and do not have a current crimnal case.
(2) Penal Code 1203.4a allows the court to exercise its discretion and expunge cases in which there was no probation. In these cases, it is important to submit a declaration with setting forth your rehabilitation, the reasons you want expungement, and other relevant information. We often represent clients in these type of expungements where the court has discretion to deny the expungement.
(3) Penal Code 17 allows the court to reduce certain felony conviction to a misdemeanor. The misdemeanor can then be dismissed or expunged. If you received state prison as your sentence, you are not eligible for a reduction to a misdemeanor. You will need to file paperwork for a Certificate of Rehabilitation instead.
This will be addressed in a subsequent post but if you had a felony conviction it it is important to have the conviction reduced to a misdemeanor before it is expunged. In determining whether to enter into a plea agreement, having a "wobbler" felony which can later be reduced to a misdemeanor is often a key negotiating point.
An expungement does not seal or destroy a client's criminal record, but it allows the client to state to a private employer (not to government or state licensing agencies or to certain publicly funded employers like the lottery) that he or she has not been convicted of a crime. Expungement of a client's record helps increase the likelihood that the client will be able to obtain employment and shows increase his or her family's financial stability.
Question 3: I am going to apply for a license (law, medical, nursing, real estate, etc.) and I had a criminal conviction in my past. Should I have it expunged before I begin the application or license renewal process or will it make any difference?
Answer 3: Yes. Have it expunged since the expungement can be used as mitigating evidence by the Board or Bureau. As noted in my prior post on this topic (Do I Need To Disclose Convictions That Have Benn Expunged In Professional License Or Government Applications?), the expungement does not relieve you of the requirement to report the expunged conviction but is useful in order to obtain a license or obtain a lesser amount of discipline.
I recommend that everyone have their convictions expunged since it also allows you to answer "no" to the question of whether you have ever been convicted of a felony or misdemeanor in any job application. However, remember that many employers conduct background checks and the conviction will still show up in background checks along with the expungement.
Question 4: Once my conviction is expunged, can I answer "No" to questions about convictions on job applications?
Answer 4: Legally, you may answer "No" to these types of questions. Keep in mind, though, that background checks typically go back 10 years, and employers can see that you had a conviction dismissed.
I have had calls from frustrated job applicants realizing they were losing employment opportunities after the background checks. Thus, if you know it is a large company that will run a background check, you may decide that answering "No" could look dishonest. A better response for some employers may be "Yes in 2005, but case dismissed and expungement granted in 2009."You could also attach a letter of explanation to explain the circumstances and how you have turned your life around and what you learned from that experience.
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, the conviction will be discovered during the standard background check. You should disclose the conviction and expungement in these situations.
If you are applying for a government-issued license, certificate, or permit, you must disclose your conviction and expungement.
As I noted in a prior post, the California Boards and Bureaus have gotten a lot tougher over the past five years and failure to invest adequate time and effort into this process (including proper expunegment and reduction to a misdemeanor) can cost someone a lot of lost income due to delay or denial of licensing. Spending $1,000 to $5,000 in putting together a mitigation and expungement package and explanation can often save clients hundreds of thousands of dollars over a few years. It is in investment that is often well spent.
Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation.
Any questions or comments should be directed to Tracy Green, an experienced California board, administrative and licensing attorney with more than 25 years' experience at tgreen@greenassoc.com.
The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed professionals in California and throughout the country. Their website is: http://www.greenassoc.com/
