EXPUNGEMENT / PETITIONS FOR DISMISSAL
An arrest or conviction record on one’s record can weigh them down psychologically and even hinder them from securing meaningful employment, education, loans, and even safe housing. More apartment owners and private employers conduct criminal background checks and a spotted record can deny you the best possible chance to prosper in your life. Luckily, dismissal of convictions or expungement is allowed under California Penal Code 1203.4.
If you were convicted of a misdemeanor or felony offense in California, you’ll need an Expungement or Dismissal to get the conviction permanently off of your record database. Typically, filing a petition for an expungement of your criminal conviction in California entails petitioning the court where you were convicted via California Penal Code section 1203.4. What a petition for dismissal does is that it effectively re-opens the case, sets aside a factual finding of guilt by a trial jury, guilty plea, no contest plea, and eventually sets aside the conviction and entirely dismisses your case. Depending on what court the case was filed, the expungement process could take anywhere from 2 to 3 months. Some courts are much more efficient than others and can process these types of a petition within a span of two weeks. But others have an average processing time of about seven weeks starting from the date of filing until the time Petition for Dismissal is granted.
When an expungement is granted by the court, the criminal conviction will be replaced with "dismissed pursuant to California Penal Code section 1203.4” and the defendant will no longer be considered convicted of the crime. Also, the petitioner is allowed to truthfully declare that they haven’t suffered any criminal convictions. After a successful expungement, records of the conviction will not show up on many background checks. However, it’s imperative to note that one’s Second Amendment rights are not automatically reinstated by having their felony charges expunged. Furthermore, cases that are considered a “priorable” such as DUI’s and petty theft may be easily expunged but the convictions may still remain on one’s record for the purposes of priorability and/or Department of Motor Vehicle for a period of ten years.
These petitions are remedies created by the state. The Federal Government does not recognize expungement and that’s why an individual’s gun rights are not reinstated even after his/her felony conviction has been dismissed. Also, the granting of a Petition for expungement is of limited value when it comes to matters immigration. Some felony or misdemeanor charges are considered crimes of moral turpitude. Any individual seeking to have their criminal conviction expunged in order to obtain an immigrant Visa may not be granted pursuant to 8 USC 1182(a)(2)(A)(i)(1). Additionally, some sentences encompass suspension of State Prison and the defendant being placed on a probation. In such cases, 8 USC 1182(a)(2)(B) may prevent an individual from seeking an Immigration Visa based on the collective sentence to confinement being five years or more.
There are numerous felony convictions that can be reduced to misdemeanors before they can be expunged. For instance, a criminal threat charged or a domestic violence charged as and pled to as a felony may easily be abridged to a misdemeanor if the original conviction was a “wobbler” and could have been filed as either a felony or misdemeanor. However, in these types of felony convictions, the manner in which the petition was taken plays a major role in determining whether the conviction will be reduced to a misdemeanor before it can be expunged or dismissed. For instance, if “execution of State Prison suspended” for any term of years was part of the deal, then the conviction can’t be reduced to a misdemeanor. As such, the conviction will never be reduced to a misdemeanor but it still is expungable.
Eligibility for an Expungement
Regardless of whether you were convicted of a misdemeanor or felony, you qualify to petition for a dismissal if you did not serve a state prison sentence. This means that only individuals who were sentenced to imprisonment in a county jail, fine, or probation are eligible for expungement. As long as the petitioner is not currently serving another sentence for a criminal offense, charged with a criminal offense, or on probation for a different offense, they can file for expungement. Also, one is eligible if he/she has successfully completed probation or the court terminated the probation. When it comes to petitioners who have violated their probations terms, a hearing is scheduled to determine whether a petition for dismissal should be granted.
For example, James was convicted of violating California Penal Code section 211 – Robbery. He was then placed on a 3 year of Felony Formal Probation which he successfully completed without any Probation Violations. James filed a PC 1203.4 Petition for Dismissal to have his conviction expunged when his probation expired. If his request is granted, the arrest will still appear on James’ RAP sheet for life, however, under the conviction section of his criminal record, it will state that the conviction was “Dismissed pursuant to California Penal Code section 1203.4.”
Individuals who served state prison sentence do not qualify unless the crime is one for which the individuals would today be sentenced to jail. You’re not eligible for expungement if you were convicted of murder, sex crimes involving minors, and any special misdemeanors or infractions under VC 42001.
When to Petition to Have Your Criminal Records Expungement
If you satisfy all the requirements and successfully completed probation, you can petition to have your criminal records expunged as soon as the probation period is over. Conversely, if you’re convicted of a misdemeanor or infraction and not granted probation, you may petition for dismissal a year from the time the first judgment on your case was delivered by the court. But if you were sentenced to state prison and are petitioning after realignment under Prop 47, at least two years must have passed ever since you completed your sentence.
If an individual is charged with multiple convictions in California and would like to expunge all of the convictions, he or she will need to Petition for Dismissal for each crime. Every individual is required to fill out the form that asks for personal information as well as details of her case. If an individual finds himself or herself unable to fully remember every detail correctly, the attorney can get the information from the court that charged the individual. The first part of the legal process involves filing all the paperwork and documents needed. An individual may also be required to pay a minimal filing fee. Once the petition has been filed, the documents will then be forwarded to the office of the prosecutor. The prosecutor will then review the case to verify the individual's eligibility. If the individual is considered eligible, the prosecutor will then send the documents back to him/her. Expungement hearings will be scheduled and if the petition is granted, the records will be expunged. A Record Expungement Attorney can handle all the details of your case on your behalf, including attending all the hearings.
SEALING OF AN ARREST RECORD
If you were arrested but never convicted, you may not realize that you need to take legal action to clean your criminal record. Record Sealing in California allows you to get your arrest record removed from the public. One may petition to have an arrest record sealed if:
- The statute of limitations has expired, preventing the prosecutor from filing a case against you
- An arrest was effectuated but a filing of the charges was rejected by the prosecutor for whatever reason
- The case was one of mistaken identity
There are two ways to seal an arrest record in California and these include:
- California Penal Code section 851.8, and
- California Penal Code section 851.87
- California Penal Code section 851.8
California Penal Code section 851.8 is not a newer law and requires the defendant to demonstrate that he/she was factually innocent. Demonstrating factual innocence is tough, and it requires that the judge agree that in hindsight, with all the evidence provided that the defendant shouldn’t have been arrested in the first place. Moreover, Penal Code section 851.8 dictates a 2-year time limit for filing the petition from the date the arrest occurred. If the arrest is older than 2 years, a time waiver may be requested but it might be difficult to convince the court.
Once the request to seal an arrest record under California Penal Code section 851.8 is granted, the record is permanently destroyed and forever sealed. This means that the process ensures that the arrest is deleted from the public database in its entirety. The process is complex and needs to be done right the first time.
- California Penal Code section 851.87
The second procedure for sealing an arrest record involves a law that has been in effect since January 1, 2018. Under California Penal Code section 851.87, there is no need to prove factual innocence. If you were arrested and never convicted, you can have your arrest record sealed as a matter of right (automatically). All you need to prove is that you are eligible for relief to have your arrest records sealed and destroyed.
Pursuant to PC 851.87, the general requirements for record sealing include:
- The arrest must have occurred in California
- No criminal charge was filed and the statute of limitation on the charges has expired,
- No conviction occurred after the arrest, the charge has been dismissed, and may not be refiled
- A conviction did happen but was reversed or vacated on appeal and the charge may not be refiled
- The statute of limitations has run on every offense such that the prosecutor is lawfully prohibited from introducing any criminal action based on the arrest; usually, 1 year for a felony, and 3 years for a for a misdemeanor
- The arrestee has been acquitted of all charges
- Charges were dismissed after the defendant effectively completed a presentencing or pretrial diversion program like Penal Code 1000 deferred entry of judgment, or Prop 36 drug treatment.
Exceptions to the General Requirements
- The defendant evaded law enforcement and in doing so, he/she prevented an arrest,
- The charge is a violation of California Penal Code section 187 murder unless the individual has been acquitted of the conviction or found factually innocent
- The defendant evaded law enforcement and prevented an arrest through identity fraud and was later prosecuted for that act of identity fraud
- The Statute of Limitations has not yet run
Also, if the petitioner’s record shows a pattern of elder abuse, child abuse, or domestic violence, then they cannot have their arrest record sealed as a matter of right. However, the records can still be sealed if the judge finds that doing so would serve the interests of justice.
Just like granting the petition for Dismissal/expungement, sealing of an arrest record doesn’t relieve an individual from disclosing the arrest when responding to a question asking about one’s arrests in an application for:
- Public office
- Licensing by any local or state agency
- Employment as a Police Officer
- Contracting with the Commission of the California State Lottery
As a result, one can legally state that he/she has never been arrested in any other scenario but not in the aforementioned categories.
The Record Sealing Process
A petition to seal must be filed in the city or county in which the arrest occurred or the court in which the charges were filed. The petition must then be legally served on both the law enforcement agency that made the arrest and the prosecuting attorney. If the D.A contests the petition, a hearing will be scheduled. At the hearing, the judge will examine the arrest records and evidence provided showing why sealing the records will serve the interests of justice. The judge has the discretion to decide whether to grant or deny your motion and if it is denied, you’ll not have any other chance to re-file your request. For this reason, it’s critical to let a Record Expungement Attorney handle all the details on your behalf. The attorney will thoroughly research the case and ensure that everything is done right the first time and there are no cases of incomplete or inadequate forms.
What Happens if the Petition to Seal an Arrest Record is Granted?
Once the judge orders that the arrest record be sealed by the court as provided under the record must be updated and sealed. This means that the section where an arrest and its details appear on an individual’s criminal RAP sheet shall indicate “arrest sealed” and next to it will be a statement reading “arrest relief granted.” If an individual’s arrest record is ordered sealed by a Judge, it becomes unlawful and illegal for the arrest to be published by the Courts or law enforcement agencies. This means that the individual’s arrest record information will be deleted from the public database. However, it will still be seen on your Department of Justice records. A criminal justice agency may continue to access, use, and provide the same to other criminal justice agencies, including by discussing it in open court and in unsealed court filings.
Sealing an arrest record does not mean that the records are totally erased. They still exist in both physical and legal sense. A person can have his or her criminal records sealed so that no one may view his or her file. Both record sealing and expungement are meant to increase the chances of a convicted person to move on with their normal lives without the burden of the past criminal records.
Contact Record Expungement Attorney for Assistance
To determine whether or not you’re eligible for an expungement or record sealing, you need to understand the relevant laws and the process involved. An experienced attorney can help you weigh the choices. If you were convicted or arrested but never convicted, there’s absolutely no reason why you shouldn’t get your records cleared. Having such records on your name can have a negative imprint on your life, affecting your possibility to get an education, find your desired job, seek credit, and make purchase or leases. The experienced and skillful attorneys at Record Expungement Attorney will do their best to make sure you have your criminal records removed. We serve clients in the greater Long Beach, Los Angeles, and Valley Area. Contact us any time 24/7/365 at 424-835-9505 for a free, no-obligation consultation.