It is common knowledge that having a criminal history can cause stress, contribute to negative social stigma, and has the potential for a loss of employment and housing opportunities. The good news is, it is possible to put these problems behind you by having your criminal record expunged. Our Orange County expungement lawyers are ready to help you with this process.
What is an Expungement?The definition of the root to the word expungement, "expunge," is to blot out or erase. It's a bit of misnomer in terms of what the legislature allows in California, but still is similar in its effects in regards to modifying the convictions on a criminal record.
Some organizations provide a different definition of expungement. For example, The County of Riverside writes that an expungement involves the re-opening of your criminal case, the setting aside of your conviction, and the subsequent dismissal of that conviction. As a result, the county claims, your criminal record will no longer show a conviction, but your record will show that you were granted an expungement.
California Penal Code 1203.4 permits people convicted of felonies (not all felonies are eligible) and the vast majority of misdemeanors to have their convictions dismissed upon the completion of probation or other sentencing. This is not automatic, and is best accomplished using an expungement attorney in Orange County. Once you have completed all sentencing satisfactorily, your sentencing has been you can begin the expungement process.
People often become confused when they hear the word expungement. Since the definition of expungement is to erase, they are mistaken to think that their criminal records will be, literally, erased. Unfortunately, this isn't the case. However, the dismissal of a conviction can greatly improve the quality of your life.
So, what is an expungement? A criminal record expungement is the process by which your criminal convictions are dismissed. This dismissal does not change the fact that you were convicted. In fact, court records will still reflect that you were convicted. An expungement will add to the court record by stating that the conviction was dismissed. What remains in the court record? Everything that was there before you pursued an expungement.
There is nothing you can do about court records. Here's what an expungement allows you to say: "My conviction(s) was dismissed." Still, its better than having to say "I have a conviction on my record."
Possibility of Expungement in Your StateDepending on laws within your state, the crime you commit may or may not be eligible for expungement. Our Orange County expungement attorneys can advise you on whether this option is available in your specific circumstances.
In some states, all records that are held by the court, and public departments, relating to minor incidents or convictions can be expunged. In Colorado and Utah for instance, many types of crimes can be expunged.
Even in such states, a lot of factors are taken into consideration when it comes to granting expungement after a conviction. Sixteen states can grant expungement of convictions; in the majority of those states, like California, you can deny ever being charged with a crime on a job application for a private employer.
Other states, like Wyoming, do not allow expungement, while states like Oklahoma only expunge arrest records. However, even states that have rigid expungement rules allow for some leeway if a case is dismissed, and the court can find grounds for granting expungement.
How does an expungement work?An expungement under PC 1203.4 or 1203.4(a) can allow a person with convictions on their record to have those convictions dismissed. This is a huge relief for someone with previous convictions who is applying for a job or in search of rental housing. Furthermore, the dismissal of a conviction is a weight lifted off of the shoulders.
There is no blanket rule that governs the expungement process in the US; the process is different from state to state. Even within the same state, certain nuances apply, which mean that expungement is taken on a case by case basis. This is one reason why consulting an expungement lawyer in the Orange County area is important to make sure that the process is pursued appropriately.
When your criminal record is expunged, it means that your record of arrest and conviction will not be visible to the public. In fact, in certain states, after your record is expunged, you do not have to disclose that you have an arrest record or have been convicted of any of the expunged crimes.
In California, the process of expunging or clearing a criminal record is usually called "dismissal." For legal purposes, if your conviction is dismissed, it is as though you never committed the crime.
In California, the process of expunging or clearing a criminal record is usually called "dismissal," because the case is reopened and the criminal conviction is dismissed. For legal purposes, if your conviction is dismissed, it is as though you never committed the crime. Your record will be changed to reflect the dismissal, and you usually do not have to disclose that you were convicted—for example, when applying for a job. In fact, it is illegal for most employers in California to ask about an arrest that did not result in a conviction or a conviction that was later dismissed (expunged). There are exceptions, such as for jobs with police departments or other criminal justice agencies, or positions that require access to drugs or firearms. (Cal. Penal Code §§ 851.91, 1203.4 (2019); Cal. Labor Code § 432.7 (2019).)
Below are the circumstances under which an arrest or conviction may be cleared in California.
Sealing in California If You Were Not Convicted of a Crime
Although most employers are prohibited from asking about arrests that do not result in convictions, you may still want to have your arrest record sealed. Your arrest record qualifies for sealing under the following circumstances.
If you can prove that you were "factually innocent" of the charged crime. You must prove that there were no reasonable grounds to arrest you in the first place; the fact that you weren't convicted doesn't establish your innocence. If you believe that you qualify for a declaration of innocence, you will need the help of an attorney to make your case. (Cal. Penal Code § 851.8 (2019).)
If your arrest did not result in a conviction or your conviction was vacated and reversed on appeal. You may petition to have your record sealed at any time if:
- you were arrested but not charged with a crime and the statute of limitations has run on each offense for which you were arrested
- the case against you was dismissed and the charges may not be refiled
- you were acquitted of the charges against you, or
- you were convicted, but the conviction was vacated or reversed on appeal, the appeals process has been exhausted, and the charges may not be refiled.
However, your arrest record is ineligible for sealing if:
- you may still be charged with any offense that was the cause of your arrest
- you were charged with murder or any other offense that has no statute of limitations and you have not been acquitted or found factually innocent of the charge, or
- you intentionally evaded law enforcement's efforts to prosecute the arrest.
(Cal. Penal Code § 851.91 (2019).)
Dismissal in California If You Were Convicted of a Crime
You were convicted of a misdemeanor or felony and sentenced to probation. You may petition for a dismissal if you were convicted of a misdemeanor or felony, were sentenced to probation, and have satisfied all the conditions of your sentence. Your conviction will not be dismissed if you are currently charged with, on probation for, or serving a sentence for another offense. You are also not eligible for a dismissal if you have committed a sex crime against a minor or committed certain offenses under the California Vehicle Code. (Cal. Penal Code § 1203.4 (2019).)
You were convicted of a misdemeanor or felony and sentenced to probation, and the court agrees to dismiss it. The following offenses may be dismissed if you can convince the court that a dismissal is in the interests of justice:
- Convictions for which you did not complete probation or obtain an early release, if you have otherwise met all the conditions of your sentence—such as paying fines and restitution.
- Convictions under California Vehicle Code § 12810(a)-(e), if you have satisfied all the conditions of your sentence.
(Cal. Penal Code § 1203.4 (2019).)
You were convicted of an infraction or a misdemeanor and received a sentence other than probation. You may petition for a dismissal if you were convicted of an infraction or a misdemeanor and were sentenced to anything other than probation. You must successfully complete all terms of your sentence and wait at least one year from the date of entry of judgment in your case to apply. Your conviction will not be dismissed if you are currently charged with or serving a sentence for another offense. (Cal. Penal Code § 1203.4a (2019).)
You were convicted of a felony and sentenced to county jail. You may petition for a dismissal if you were convicted of a felony and were sentenced to county jail. If your sentence included mandatory supervision, you must wait at least one year after completing all terms of your sentence to apply; if your sentence did not include mandatory supervision, the waiting period is two years. Your conviction will not be dismissed if you are currently charged with, on probation for, or serving a sentence for another offense. (Cal. Penal Code § 1203.41 (2019).)
You were convicted of a felony and sentenced to state prison. You may petition for a dismissal if you were convicted of a felony before October 1, 2011, were sentenced to state prison, and now, under California's current laws, your conviction would be eligible for sentencing to a county jail. You must wait two years after completing your sentence to apply. Your conviction will not be dismissed if you are under supervised release or currently charged with, on probation for, or serving a sentence for another offense. (Cal. Penal Code § 1203.42 (2019).)
If you were convicted of a felony and sentenced to state prison under any other circumstances, your conviction is not eligible for a dismissal. You may instead request a Certification of Rehabilitation (a court order declaring that a person has been rehabilitated) and pardon from the governor. (Cal. Penal Code §§ 4852.01-4852.21 (2019).) Neither a Certification of Rehabilitation nor a pardon erases or seals a criminal record.
You completed a diversion program. After successful completion of a diversion program, you may petition to have your record sealed. (Cal. Penal Code §§ 851.87, 851.90 (2019).)
You were charged with possession of marijuana. You might not need to petition for dismissal if you were arrested for or convicted of marijuana possession or transporting or giving away 28.5 grams or less of marijuana. Such convictions, if entered after January 1, 1976, should be erased from your criminal record after two years. Note that this does not include convictions for growing or selling marijuana or transporting more than 28.5 grams of marijuana. (Cal. Health & Safety Code § 11361.5 (2019).)
Getting Legal Help
Clearing up your criminal record can be complicated, and the law can change at any time. To learn more about having your conviction dismissed, including how to file for dismissal, see Cleaning Your Record at the California Courts Self-Help Center. You can also check out ClearMyRecord.org. Contact the public defender's office in your county or consult an experienced criminal defense attorney to discuss your personal circumstances and get help expunging your criminal history.