expungement - law

The law allows some criminal convictions to be dismissed by filing for Expungement. An Expungement does not remove or seal the case record, but changes a conviction to a dismissal. Only minor crimes such as misdemeanors or infractions can be expunged and they cannot be those prohibited by law from being expunged. Serious vehicle code violations that result in 2 or more points on your driving record and certain sexual offenses against minors, for example, cannot be expunged.  You can review California Penal Code §1203.4, Penal Code §1203.4a, and Penal Code §17 to see which offenses can and cannot be expunged.
Types of Expungements
There are 3 types of Expungements:

  1. Cases in which probation was part of the sentence.   Penal Code §1203.4
  2. Cases in which there was no probation.  Penal Code §1203.4a.
  3. Wobblers-felony convictions that can be charged as either felonies or misdemeanors.  If the crime is charged as a felony, it must be reduced to a misdemeanor, and then Expunged.  Penal Code §17.

How an Expungement May Help You

Expungements are primarily helpful in seeking employment. They also may just give you peace of mind by not having a conviction as a reminder of a reckless mistake you made as a young adult or when you lived a different type of life. Once a conviction is expunged, it becomes an offense/arrest that did not end in conviction. In California, most private employers cannot ask about: 1) an arrest that did not end in conviction (unless you are out on bail in California or out on your own recognizance pending trial); or, 2) about any diversion or similar programs. See California Labor Code §432.7.  Therefore, if you apply with a private employer, you may answer "No" to a question that asks if you were “convicted” of an offense (that you had expunged).  However, you may want to ask what the application process involves, such as, if the potential employer will conduct a background check.  These usually go back 10 years and employers may see that you had a conviction dismissed.  It is legal to answer “No,” but you may want to answer “Yes” and explain that you were granted an Expungement.  Be aware! You are required to disclose the conviction and Expungement when applying for government employment, a government license/permit/certificate or when contracting with the California State Lottery. 

What an Expungement Does Not Do

Although an Expungement may be helpful, keep in mind that it DOES NOT

  • Remove a conviction from your criminal history. California and FBI criminal history records will show the conviction, but state that it was Expunged (dismissal).
  • Seal the court case file. Most court cases are public record.  If you want to have the record sealed, you must request that the court seal it through a separate legal procedure and must meet the legal requirements.
  • Reinstate your right to possess firearms (if the conviction did not allow you to) or relieve you of your duty to register as a sex offender (if the conviction required you to). There are limited exceptions.
  • Allow you to hold public office, if the conviction prevented you from doing so.
  • 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. 
  • Prevent the conviction from being used as a "prior." The dismissed conviction can be used for determining sentencing enhancements in subsequent convictions.
  • Prevent the conviction from being used by the DMV. Expunged convictions may be used to suspend or revoke driving privileges. 
  • Prevent the conviction from being used by US Citizenship and Immigration Services.

How to Determine if You Can Request an Expungement of Your Conviction

  • Your conviction must meet the guidelines described in Penal Code §1203.4, Penal Code §1203.4a or Penal Code §17.  
  • If probation was notgranted, at least one year must have passed since your conviction.
  • You must have completed the terms of your sentence, such as serving jail time, completing probation, attending all hearings and paying all fines, fees, or restitution. If you meet all the requirements, except probation, you may ask the Court to terminate probation early and expunge your record. You must convince the judge why this is in the interests of justice.
  • You cannot be serving a sentence for any offense (including probation), or be charged with any other offense.  If you are on probation for another offense, you have to wait until it finishes or ask that it be terminated early.
  • You must not have another conviction within one year of the first.
  • Probation for the conviction you want expunged must not have been revoked and not reinstated.

Contact West L.A. Law, P.C. for a consultation and we will evaluate your case to see if you can file for an Expungement.