California Expungements of Criminal Records
California Penal Code 1203.4 & 1203.4a Motions
An 'expunged' criminal record means that a defendant's prior criminal conviction is cleared from public record as a conviction. Both misdemeanor convictions and infraction convictions may be expunged. Some convictions are not expungeable (see below).
Note: It is possible to reduce most felony convictions to misdemeanor convictions in order to move forward with the expungement process. Felony convictions that could have been filed as misdemeanor charges may be reduced to misdemeanors if the defendant did not serve more than a year in jail. For information on what California criminal charges may be filed both as misdemeanors and as felonies contact a criminal defense attorney for a free consultation.
The expungement process:
To expunge a criminal record the defendant will need to file and serve expungement paperwork with the court where the conviction was entered. The paperwork generally includes the law of California penal code section 1203.4 or 1203.4a (expungements). Along with the paperwork the defendant will usually need to file and serve declarations of the defendant; declarations are statements about why the defendant is requesting to clear his or her criminal history.
Both the district attorney and the probation department must be served with a copy of the defendant's request for an expungement before the court date. The defendant will receive his or her court date upon the filing of the expungement paperwork with the court.
In many cases, the defendant will have an absolute right to have his or her expungement motion granted. In other cases, the defendant's request for expungement is not necessarily granted. Whether or not the defendant has an absolute right to an expunged record depends on whether or not the defendant violated any terms of probation during the course of probation and whether or not the defendant has any outstanding new criminal charges.
The following requirements for an expungement under PC 1203.4 (where the defendant was granted probation) are:
1) the defendant is no longer on probation for he conviction, and 2) the defendant is not now on probation for any offense, and 3) the defendant is not now charged with committing any new offense.
The following requirements for an expungement under PC 1203.4a (where the defendant was not granted probation) are:
1) there has been at least a year from the date of conviction, 2) the defendant fully complied with his or her sentence, 3) the defendant is not now serving a sentence for any new offense, and 4) the defendant is now now charged with committing a new offense.
As stated, some convictions are not eligible for a an exgungement. These criminal convictions include: PC 286(c), PC 288.5, PC 288a(c), PC 289(j), PC 288, & PC 261.5(d).
Expungements are great for clearing criminal records so that a defendant has a better chance for obtaining employment or professional licenses. However, an expunged record is not a complete clearing of the defendant's criminal history. For example, an expunged criminal record may still be used by the federal government in immigration cases and cases where the defendant is attempting to join the armed services.
Furthermore, expunged cases may be used against defendant's in subsequent prosecutions. For example, if a defendant has a conviction for a driving under the influence of alcohol conviction (DUI), the fact that the defendant has that DUI conviction expunged does not mean that a prosecutor can not use that prior DUI conviction against the defendant in a later DUI case.
How much does a criminal defense attorney charge for an expungement?
Every case is different so the cost is different in every expungement case. There is usually no set fee for an expungement case before the attorney has a chance to review a case; however, once the attorney sets the fee it is almost always a fixed fee for the entire project. The cost for expungement depends on the number of crimes that need to be cleared, whether any of those crimes need early termination of probation, whether any of those crimes are for convictions of felony charges, how close the courthouse is to the attorney's office and the length of declarations involved in the court paperwork.
How long does the process to obtain an expungement take?
Every case is different but a typical case takes about three months from start to finish. The process involves research in to the defendant's criminal case to ascertain whether or not this is 'right to an exungement' case, or more of 'request for an expungement case.' The research is following by drafting the motion to expunge documents (PC 1203.4 motion), following the drafting of declarations by the defendant and the filing and serving of the expungement paperwork. Getting a court date is very easy but getting an early court date depends on the time of year and how backed up the local courts may be. After the judge signs the order for expungement (a dismissal of the criminal charges) he or she must the order filed with the department of justice so that the DOJ can further process the order.
If I get an expungement of my criminal history do I have to tell my employer that I was convicted of a crime?
The answer is that you do not have to tell private employers that you had a previous conviction if the conviction has been expunged; however, if you are applying for a professional license with the state of California, or is you are asked about your criminal history in a court of law you must provide truthful answers. For example, if a defendant is applying for a nursing license with the state of California then he or she must be truthful when asked whether or not the applicant has any criminal convictions, even if the conviction was previously expunged; however, if the applicant then receives the nursing license and thereafter applies to work at Kaiser Permanente Hospital (a private employer) he or she does not need to reveal on an application that he or she was previously convicted of a crime.
Am I eligible for an expungement?
As stated above, almost all crimes are eligible for an expungement, even most felony crimes, so long as the defendant is not on probation and he or she is not facing new criminal charges.
For cases that are not eligible for expungement a Certificate of Rehabilitation or a Pardon may be available where the defendant's criminal history is cleared and sealed.
Does an expungement seal my criminal record?
The answer is no, an expungement does not seal a criminal record. The record will still be visible to anyone searching local databases for your criminal history; however, the display of the criminal record will show that the criminal case was dismissed.
In some cases it may be possible to seal a criminal record through a process known as motion for factual finding of innocence and sealing of criminal records. Those motions are beyond the scope of this article.
How long to I have to wait to seek an expungement after my criminal case is finished?
A defendant may start the expungement process as soon as he or she is off of probation in misdemeanor and felony cases. In infraction cases the defendant must wait at least one year from the pronouncement of judgment (there is no probation in infraction criminal cases).
To learn more about California expungements, including eligibility requirements, timing requirements, the laws and process, contact criminal defense attorney Christopher Dorado today. There is no fee to talk with one of our experience expungement attorneys today. Our office is available 24/7 to answer all of your questions and we dedicate 100% of our practice to criminal defense.
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