What is an Expungement?

Posted by on

If you have been convicted of a certain misdemeanor or felony offenses, you are eligible, upon the successful completion of probation to petition the court to withdraw the plea of guilty or “no contest” and enter a plea of not guilty. The court is required to set aside the verdict of guilty and dismiss the complaint. This relief, commonly referred to as an expungement, releases a defendant of all penalties and disabilities resulting from the offense.

When your record is expunged employers, potential employers, landlords, and other members of the general public should not be able to access the conviction. However, the expungement does not relieve the individual from disclosing the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.

If you are granted an expungement in California, it does not, under most circumstances, restore your gun rights.

Eligibility for Expungement

Because an expungement offers a fresh start of sorts, it is important to know if your conviction is eligible for expungement. One of the most important actions that a person who has been arrested or convicted can take is to investigate their jurisdiction’s expungement procedure. If you reside in California, and have a question about your eligibility to obtain an expungement, contact our office and we can assist you. You can also check with the court in the county where you were convicted.

Misdemeanor Offenses

An individual who has been convicted of certain misdemeanor offenses is, under most circumstances, eligible for an expungement if that individual has successfully completed probation. For certain sex offenses, an individual may not be eligible for an expungement. Also, there are different rules that apply if you have been convicted of a misdemeanor driving under the influence charge. The Court, in those instances, will apply a different standard to determine if the DUI should be expunged. Please note that a prior DUI offense committed with 10 years in California can still be used as a prior offense even if you are granted an expungement.

For an individual who was convicted of a misdemeanor or infraction and not placed on probation, he or she can obtain an expungement if they fully complied with the court sentence, is not serving a sentence for another offense, and is not charged with an offense.

Felony Offenses

An individual convicted of a felony offense may also be eligible for an expungement. California does not allow expungement for offenses involving sexual offenses against children, murder, or kidnapping. If you are convicted of a felony offense and placed on probation, you are, under most circumstances eligible for an expungement. However, if you are sentenced to state prison, you are not eligible for an expungement.

Also, take into the consideration your probation. If you did not satisfy, or did not successfully complete your probation, this does not completely discount you from receiving an expungement. If, in fact, you did not successfully complete your probation, there will be a specific hearing held to determine if you are still an eligible candidate for an expungement. The court will take into consideration your overall performance while on probation, the seriousness of the conviction, your criminal history, and any additional evidence you can provide to demonstrate why you are deserving of the expungement.

Benefits of an Expungement

An expungement can benefit you in many ways. It is common practice for employers to run a background check on a potential employee. When deciding to hire a potential employee, an employer takes into consideration the criminal record of the potential employee. When you have an expungement of your criminal record, you can lawfully answer “no” to any previous criminal convictions on a job application. Moreover, the California Code of Regulations states that an employer cannot ask an applicant about an expunged misdemeanor conviction.

When applying for a state license, such as a real estate or contractor’s license, the applicant must still disclose the information about the expungement in response to any questions asked on said application. Although an expungement does not usually preclude the immigration consequences of a criminal conviction, such as deportation or denial of admission, in some cases it can help.

Arguably, the most important benefit to you is your own peace of mind. Imagine the relief and upon gaining your expungement. While the expungement does not erase the past, it can help bring redemption from a past mistake and help a client close that chapter of their life.

The Expungement Process

Before a court in Fresno, Madera, Merced, or Tulare County grants an expungement, there are several procedural steps you must take. Given the complex nature of the expungement process it is always wise to have a qualified attorney assist you in preparing the legal documents, declarations, and other relevant materials that the Court will need to make the decision. Remember, if you attempt to obtain an expungement on your own and are denied, it may be difficult to later obtain relief.

An attorney will analyze your case to determine whether or not you are in fact eligible for an expungement. You and your attorney must also ensure that the appropriate paperwork is filed within the correct time frame. Even if you follow all the appropriate steps and the judge grants you the expungement, there are still limitations to what the expungement can do for you. As listed above, the benefits of an expungement can be very helpful to you. But, keep in mind there are things an expungement cannot do. An expungement will not overturn a suspended or revoked driver’s license. It will not restore your California gun rights as stated under Penal Code 29800 PC. It will also not relief you of the obligation to register as a sex offender.

In addition, expunged convictions may still be used as prior convictions to enhance a sentence, such as multiple DUI convictions. Previously expunged convictions can also be used as “strikes,” such as with California’s “Three Strikes Law.”

If you meet all the eligibility requirements you are able to apply for an expungement as soon as your probationary period is completed, or you are issued a termination of probation. The most common way an attorney can expedite the expungement process is to grant an early termination (if this has not already been granted), reduce the felony to a misdemeanor, and expunge your conviction all in one hearing before the judge.

Expunging a DUI

California law allows those who have been convicted of a DUI offense to expunge their record. Because having a DUI on your record can hinder your ability to find employment or keep your existing job, it may be helpful to expunge the charge from your record. The first step is to file the petition with the court, this will contain all the pertinent documents for the judge to review. The next step is to complete the probation requirements. Regardless of how long the probation period lasts, the defendant must complete all conditions of probation. It is also important to complete any community service ordered before filing for the expungement. Once you have completed all of your probation requirements, paid all fees, and properly filed your petition, the court will set a date for a judge to review your case. Also, you must not have any outstanding offenses on your record. It is important to remember that the time to complete this process will vary depending on the specifics of your case. On average, you can expect two to three months to complete the process. Please keep in mind that the standard for obtaining an expungement in a DUI case is different than for other misdemeanor offenses. So make sure that you contact an attorney who knows how to handle your DUI case.

Sealing and Destroying Records

It is important to note that expungements and the destroying of records are two completely different processes. If you were arrested but the prosecutor never filed charges, had your case dismissed in court, or were acquitted by a jury following a jury trial, you may qualify to have your records sealed and destroyed. This relief allows you in all honesty to state that you have never been arrested for a crime. Sealing juvenile records will grant you the same benefits. You qualify for sealing of juvenile records if you are currently an adult, and as an adult you have not been convicted of any crimes of moral turpitude (e.g., a crime that involves dishonesty or immoral behavior), and there is no pending civil litigation based on the juvenile incident. Once the judge grants the order to seal and destroy your records, the arrest record is ordered sealed for three years and destroyed thereafter.

The Legal Effect of Expungement

Generally, an expungement means that an arrest of conviction is “sealed,” or erased from a person’s record for most purposes, meaning you do not have to disclose that arrest or a criminal conviction. In most cases, a potential employer, educational institution, or other company conducting a public records inspection or background check of your criminal record will not find any mention of an expunged arrest or criminal conviction. For example, if you are filling out an application for an apartment and your arrest record has been expunged, you do not have to disclose that arrest or conviction and the landlord would not have access to it. However, an expungement is still accessible by certain government agencies, including law enforcement and the criminal courts.

If you have any questions about your eligibility to obtain an expungement, please feel free to contact our office. We can assist you with the expungement process in most of the 58 California counties. We will be able to tell you if you are eligible for an expungement, what will be required to obtain relief, and provided you with an accurate time table for completing the process.

If you have any questions regarding the services provided at the Law Office of Gregory W. Fox,
or would like to schedule your free initial consultation, please contact us today at (559) 222-5800. Hablamos español.