Expungements

clause-63977_150Obtaining an expungement in Sacramento County,  California can be a great help to people seeking to overcome past problems with the law to prepare a better path for their future. The California expungement process is is codified in the California Penal Code. Essentially, the relevant code sections authorize the court to reopen a criminal case and dismiss the current conviction, subsequently closing the case without a conviction. This benefits people who may want to seek employment for which they otherwise might not qualify with a criminal record.

How to qualify for a Expungement in CA

A person requesting an California expungement must meet several requirements to be legally eligible for the process. The first step is to verify that the person falls within the guidelines of the applicable statute authorizing the California expungement.

A California expungement is possible under three different statutes. California Penal Code 1203.4 covers convictions which included probation as a component of the sentence. If the case did not use probation for sentencing, Penal Code 1203.4a will control the expungement process. If the conviction involved a felony offense, the appropriate section is Penal Code 17.

To qualify for Penal Code 1203.4 relief, the defendant must have completed his term of probation or the court must determine the interests of justice support granting relief. The defendant can begin to apply for a 1203.4 expungement once probation has finished assuming he or she is not on probation or currently serving a sentence, or charged with another offense. Once the requirements are met, the court will reopen the case to withdraw a guilty or no contest plea or to set aside a guilty verdict. Then the case will be re-listed as dismissed and re-closed. The effect of this is that the defendant will be “released from all penalties and disabilities resulting from the offense” subject to the limitations discussed later in this article.

Penal Code section 1203.4a (for convictions where no probation was imposed) uses a similar process. If the defendant was convicted on a misdemeanor charge without probation or an infraction, and is not serving probation for another offense nor serving another sentence or charged with a subsequent offense, the court can reopen the case and dismiss the original charge. Penal Code section 1203.4 also requires that the defendant live an “honest and upright life” and obey the law. Under California Penal Code 17 the court  reduce a felony offense (a “wobbler”) to a misdemeanor which in turn can be dismissed by the court through the Penal Code 1203.4 expungement process. If a defendant is not eligible for an California expungement due to a probation violation he/she can still seek an expungement through the court’s discretion if it would further the interests of justice.

Timing Requirement for Expungements

In addition to meeting the statutory requirements (including the completion of probation), the defendant must wait until one year past the conviction date to begin the California expungement process.

Offenses Not Eligible for an Expungement

California Expungements are not an option for convictions that carried prison time as part of the sentence. Additional disqualification exists for those who have been convicted of sexual offenses against minors under Penal Code 286(c), Penal Code 288, Penal Code 288a(c), and Penal Code 261.5(d). Felony convictions under Penal Code 261.5 are similarly excluded from 1203.4(a).
Pursuant to California Penal Code 1203.4, if the defendant has a misdemeanor conviction under California Vehicle Code Section 42002.1 (related to refusing to comply with police or fleeing/evading) an expungement is not an option. The California expungement statutes also make any offense falling under section 13555 of the vehicle code will also make someone ineligible for an expungement.

California Expungement Limitations

Often there are some misconceptions as to what a California expungement can actually accomplish. It should be noted that California Penal Code 1203.4 does not “seal” records or expunge convictions in the literal sense of the word. The concept of a California expungement is more appropriately thought of as a retroactive dismissal of a case. Furthermore, there are other limitations to California expungements:

  • First, a Penal Code 1203.4 California expungement will not clear the offense from your criminal record. A criminal record will still exist for the offense in California and FBI record systems. However, the disposition of the criminal case will be listed as a dismissal. The benefit to this is that you may not have to declare that your were previously convicted for certain types of job applications. Applications to government based employment will still require disclosure of the conviction and resulting expungement.
  • Secondly, if your right to have firearms has been taken away, an expungement will not reinstate your ability to do so unless a specific exception applies.
  • Third, the PC 1203.4 process will not remove the requirement to register as a sex offender as required by California Penal Code 290. However, if one qualifies for a certificate of rehabilitation, the registration requirement may be overturned.
  • Next, the process will not prevent the public from accessing the record through the court record inspection process.
  • California expungements will generally not affect the duty to disclose for government related activity. When applying for a government issued license (i.e. a real estate license), PC 1203.4 will not preclude the required disclosure of the conviction and resulting expungement. This section will also not prevent the issuing government agency from using the conviction to revoke or refuse to issue a license. Even if an expungement has been obtained, applications for government employers will still require disclosure of the conviction and expungement as well. The DMV also has the power to use convictions which have been expunged to impose license suspensions and revocations.
  • The expunged conviction can be used as a prior conviction in subsequent criminal proceedings in charging decisions and sentencing.
  • Finally, convictions which have undergone the expungement process can be used by immigration officials to support exclusion or removal proceedings.

How to Apply for a Expungement

To file for a California expungement, the state requires two different forms which are both used regardless of the type of expungement sought. The first required form is the Petition for Dismissal (CR-180). The other form is the Order for Dismissal (CR-181). These forms should also be accompanied by a declaration (under penalty of perjury) which explains your particular situation. The court offers a declaration form called the MC-030 which may be used for this purpose.

A qualified California expungement attorney can help you create a compelling declaration clearly explaining your life situation and why you deserve an expungement. An attorney can also assist you in assembling all the required documents in a manner required by the court. If a defendant is attempting to expunge several convictions, each one will need to be applied for separately.

Sealing Criminal Records

In some circumstances, an arrest not resulting in a conviction can cause as many problems as a conviction itself when it comes to seeking employment. A California expungement won’t provide relief, but the record of an arrest can be “sealed” utilizing the procedure outlined in California Penal Code 851.8. This code section not only allows for the sealing of such records, but also the destruction of any related files. Once the process has been completed, one may legally answer that they have never been arrested when questioned by a potential employer.

To request that records be sealed, one must qualify under certain criteria. Records may be sealed if there was an arrest without subsequent criminal prosecution, or if the prosecution did file charges and the case was later dismissed. Alternatively, one may qualify if they were found not guilty at trial.

Under Penal Code 851.8, the process to seal records must be started within two years of the arrest or filing of charges. Any attempt to seal records after this time period will require a determination by the court that good cause exists. In general, the petitioner must first contact the arresting law enforcement agency (where one was arrested and no charges were filed) to seek a finding of factual innocence. Once this is achieved, the arrest records and petition can be sealed and later destroyed.

If someone was arrested and charges were filed or the case proceeded to a not guilty verdict at trial, the process must begin by seeking relief directly from the court. A person who was arrested without subsequent charges can also file with the court if the law enforcement agency denies sealing records through the process described above. At this point, the petitioner must show there was no reasonable cause for the police to arrest him/her. The court can look at many types of evidence to make this determination. The prosecution will also have an opportunity to present evidence and argue against the request. If the petitioner (former defendant) is successful, the court will order the records sealed and destroyed.

  • Also, requests to seal records will have to be filed for each instance of arrest as a separate matter.

Sealing Juvenile Records

Juvenile criminal records can still affect a person long after they enter adulthood. In order to prevent future employers, schools, creditors and licensing officials from viewing information about past problems with the law, one needs to seal their juvenile records. The California statute that gives authority to do so is Welfare and Institutions Code 781.

Welfare and Institutions Code 781 requires that 5 years has elapsed since the juvenile offender was required to appear before a probation officer or law enforcement, or since the juvenile court system last held jurisdiction over the youth. Alternatively, one may qualify if they are 18 years old or older when starting the process. In addition, the petitioner may not have been convicted of another felony or misdemeanor crime involving moral turpitude, and is not currently a target of a civil lawsuit related to crimes committed as a juvenile. Furthermore, it must be found that the person has been rehabilitated to the satisfaction of the court.

Once the above requirements are met, the court will order that all records be sealed including any records held by law enforcement or other agencies. The end result of this process is that the juvenile criminal record will be considered to never have occurred. This will allow the petitioner to legally answer that they have not been arrested or convicted. It will also end the requirement to register as a sex offender under California Penal Code 290 if the registration was imposed due to an offense committed as a juvenile.

There are certain types of convictions which will make a petitioner ineligible for the juvenile record sealing process. A person will not be able to expunge crimes listed under Welfare and Institutions Code 707(b) which were committed at the age of 14 or older.

The process to seal juvenile records begins by filing in the juvenile court where the record was made. A hearing takes place where the judge will consider the request and evidence provided by both the person making the request and the prosecution. If the judge agrees that the record should be sealed, an order will be made directing all agencies who have the record to seal and subsequently destroy the records. If the court denies the request, the applicant may attempt again at a later time.

Generally, once records are sealed, the public will not have access to the information contained therein. However, there are some exceptions to this rule. Under Welfare and Institutions Code 781, a person who is sued for defamation may have sealed records opened and presented to the court for the limited purpose of the lawsuit. Such records return to their sealed status after the defamation proceeding ends. Additionally, the California Department of Motor Vehicles may allow insurance carriers to view vehicle related violations for auto insurance coverage issues.

Relief Under Penal Code 851.7

Another alternative path for relief available to persons arrested as minors is found in California Penal Code 851.7. Under this section, a minor who was arrested for a misdemeanor offense can seal records if the proceedings did not lead to a conviction. This means that relief may be available if the the defendant was acquitted, the case was dismissed, or the defendant was discharged from police custody without having charges filed. Under Penal Code 851.7(e), this section is not applicable to persons charged with an offense requiring Penal Code 290 registration, Health & Safety Code Division 10 offenses, or Vehicle Code violations. Records sealed under Penal Code 851.7 can also be opened if the former defendant is involved in a defamation case.