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Expungement of Criminal Records in California
Start Fresh - Clean Up Your Record For Employment Applications and Professional Licensing
How can I get my criminal record expunged? This is one of the most frequently asked questions of San Diego criminal defense attorneys. If you qualify, it's easy! Everybody wants a clean slate, but not everybody qualifies. The following guide walks you through the expungement process, discussing who is eligible and who is not, and providing you with an overview of the expungement process. You can file the necessary paperwork for an expungement yourself, but it is always best to call an experienced San Diego criminal lawyer to help you with the process. If you qualify for a fee waiver in San Diego county, you may qualify for a free expungement!
What is Expungement?
There is no such thing as an "expungement," under California Penal Code (PC) 1203.4, It is technically called a "dismissal," but most people (including many lawyers) will incorrectly describe the dismissal procedure under PC 1203.4 as an "expungement".
A dismissal under PC 1203.4 means that person is released from "all penalties and disabilities" resulting from conviction of a criminal charge. This is especially important to those looking to rebuild their careers following a criminal conviction.
Only a person with a criminal conviction on their record understands just how important it is to state that you have a clean criminal record. Often times the only path to regaining a professional license or joining a professional organization is through the "expungement," (really, "dismissal") process. This article will use "expungement" and "dismissal" interchangably, since people common misuse the terms to describe the same process.
MOST CRIMES ARE ELIGIBLE FOR EXPUNGEMENT AT THE HALF-WAY POINT OF YOUR PROBATIONARY PERIOD.
Clean up your record for employment background checks. You can get your case dismissed, even after you have been convicted or pled guilty!
Citizens are eligible for expungement(dismissal) if they:
(1) sucessfully complete probation, and
(2) are not presently charged with a criminal offense, on probation for a subsequent criminal offense, or serving a sentence for a criminal offense.
Citizens must be able to demonstrate that they have successfully completed probation in its entirety (or received early termination of probation). Sucessfully completeing probation means that you:
(1) completed all the terms of your probation,
(2) attended all your required court appearances, and
(3) you did not commit any new crimes while on probation.
YOU QUALIFY FOR A FREE EXPUNGMENT IF:
You were not sentenced to state prison.
You are not presently facing criminal charges.
You have successfully complete at least half your probation.
You financially qualify for a public defender*
You have paid your court costs and fines in full.
San Diego Superior Court Fee Waiver Packet
*To financially qualify for a public defender, you must complete this form.
YOU ARE NOT ELIGIBLE FOR AN EXPUNGMENT IF:
You were sentenced to state prison.
You were convicted of a serious sex offense
You were convicted of a sex offense against a child
If you violated the terms and conditions of your probation, you may still be eligible for expungement. The court will hold a special hearing to determine whether you are a candidate for expungement. The Judge has wide discretion to grant or deny your petition for expungement, and may consider several factors (including but not limited to):
Your overal performance while on probation
The serious nature of your underlying conviction
Your criminal history
Additional evidence that demonstrate you deserve an expungement
* An opportunity to obtain a good job (not just a general opportunity, but a substantial lead or likelihood)
* Having a family to support
* Strong ties to the community or a history of community service
* Commendations and letters of support from community leaders
The court will "in its discretion and the interests of justice," determine whether relief should be granted under PC 1203.4
HOW DO I GET A FREE EXPUNGEMENT?
Check to see that you are eligible for an expungement
Fill out a San Diego Court Fee Waiver Packet*
Have your case number ready
Call us TODAY!
San Diego Superior Court Fee Waiver Packet
* This form is entirely confidential. Your financial information will be shared with NOBODY.
** This offer is limited to a first come first serve basis. If you have not completely paid your court fines and costs, or have not completed your probation, you will not be eligible for a free expungement.
IF YOU QUALIFY FOR A FEE WAIVER, YOU QUALIFY FOR A FREE EXPUNGEMENT.
WE ARE A LAW FIRM, AND DO NOT SHARE ANY INFORMATION WITH ANYONE. The fee waiver packet is a standard form that you fill out when you think you qualify for a public defender. The packet is essential to get the court to waive standard court fees and costs for dismissals (expungements).
If you do not qualify for a fee waiver, expungements start at $250 per charge seeking to be dismissed (plus $60 court fee per misdemeanor, and a $120 court fee for each felony charge).
How the Expungement (Dismissal) Process Works
Only an experienced criminal defense attorney can give you specific advice on how the expungement process applies to your situtation, but we can at least give you a general overview of the process. There are a few critical steps that must be followed.
(1) Analyze the statutes to determine whether you are, in fact, eligible for an expungement. The specific statute is California Penal Code 1203.4 - this is the statute that guides judges as to whether or not they should grant you an expungement.
(2) Perform legal research as to the current and relevant laws related to your case.
(3) Filing the appropriate paperwork within the prescribed timeframe. These deadlines are set by statute. For example, you must give the prosecuting attorney at least 15 days notice of your expungement hearing date. That means you must notify them of your expungement hearing more than 15 calendar days prior to your hearing date, so that they may have the opportunity to object.
(4) You must attend your expungement hearing.
Beware that even if you follow all of these steps, the judge may not grant your expungement - it is their discretion, and there may be any number of factors that influence their decision. Even if the judge grants your request for an expungement, there are restrictions and limitations on what an expungement will actually do for you.
Benefits of a dismissal (expungement):
* An expungement may significantly assist you in securing employment. Under California law, an employer may not:
(1) discriminate against you for an arrest that did not result in a conviction (an expungement sets aside a verdict and dismisses your case.
(2) inquire about the fact that you were arrested but not convicted,
(3) seek out any information on your dismissed conviction, or
(4) discriminate against you because you have had a conviction expunged.
(see Cal. Labor Code 432.7 - signed into law in 2014).
* An expungement may help you obtain, or regain a professional license such as a medical doctor, or lawyer.
* Allow you to answer on many, but not all, job applications that you have not been convicted. If, however, you are applying for a government job or a job which requires a government-issued license, certificate, or permit, or a job which involves a security clearance, the conviction will be discovered; in such cases, you should disclose the initial conviction and its later expungement;
* Your expunged (dimissed) conviction may not be used to impeach your credibility as a witness in court (unless you are the defendant in the matter)
* If your conviction was a felony, expungement is the first step to an official governor's pardon.
* An expungement may possibly help you avoid deportation or other immigration consequnces.
What a dismissal (expungement) does not do:
* It will not remove your conviction from your "Rap sheet". Your conviction and your dismissal will both appear.
* An expungement (dismissal) will not overturn your drivers' license suspencion or surrender.
* Restore your gun rights under PC 29800 (If you have been convicted of a felony)
* You cannot omit the conviction from applications for government issued licenses
* End your duty to continue registering as a sex offender at each new address under PC 290
*Prevent the conviction from being considered and used to refuse or revoke government licenses and permits such as real estate sales licenses, teaching credentials, bus drivers licenses, security guard certificates, etc.; however, the expungement may reduce the weight given the conviction by the licensing agency.
* Effect on 3 strikes laws - Expunged convictions may still be used as prior convictions to enhance sentencing as as "strikes" (There are other means of post conviciton relief such as a California Certificate of Rehabilitation or a Pardon by the Governor of California).
What is the Cost/How Can I Get a Free Expungement?
If you qualify for an expungement, and you also qualify for a "Fee Waiver" from the San Diego county court system (easy packet to fill out here), then you may be eligible for a free expungement. Call us today to learn more.
Expungments usually cost $300-$500 per charge you are seeking to have expunged.
Frequently Asked Questions About Expunging Criminal Records in California
When Can You Apply For a Dismissal/Expungement?
You may petition the court for a "dismissal" (expungement) as soon as you have completed probation (including early termination of probation).
Why is it Important to Hire a Criminal Attorney For a Dismissal (Expungement)?
You only get one shot at your petition for a dismissal. You need to make sure the petition is done correctly, verified and accompanied by a strong memorandum of points and authorities supporting the petition.
An experienced criminal lawyer can "package" a number of motions to expedite your expungement process. A common example of this "packaging" is:
(1) A motion for early termination of probation. The court has the option of granting this as long as you are in compliance with the terms and conditions of your probation
(2) A motion to reduce a felony to a misdemeanor. A "Wobbler" is a crime that can be charged as a misdemeanor or a felony, and if the prosecutor opted to charge you with a felony, you can petition the court to reduce the charge to a misdemeanor.
(3) Motion to expunge your conviction.
All three of these would happen in the same proceeding, saving you time, and money! Make sure your petition is done correctly, and hire an experienced San Diego criminal attorney.
Is an Expungement the Same as "Sealing and Destroying Records"
No, sealing and destroying arrest recods is a completely different process from expunging records of criminal convictions. Sealing and destroying deals with your arrest, Expungment deals with your conviction.
If your criminal matter ended in any of the follow ways, you can have your records sealed and destroyed.
(1) Arrested, but no charges filed
(2) Case dismissed by the judge
(3) Acquitted by a jury
This is also known as a "Petition for Factual Innocence."
In any of these circustances you may be entitled to have your records sealed and destroyed. This allows you to honestly state that you have never been arrested for a crime, and can be a big relief, especially if a person was once falsely accused of a sex crime.
Juvenile records may also be sealed and destroyed and you may be eligible to have your arrest records sealed and destroyed if:
(1) You are currently an adult (over the age of 18), or the Juvenile matter happened before the age of 13.
(2) As an adult you have not been convicted of any crime of moral turpitude (fancy way of saying immoral or dishonest behavior)
(3) There is no pending civil litigation based on the juvenile incident
If a judge grants your motion, your records are sealed for 3 years - only able to be unsealed by a motion which you have a right to contest, and the records will ultimately be destroyed after those 3 years.
Who Can Access My Criminal Record?
Anyone. Criminal records are public information. Criminal matters are publically available, however after 5 years, most jurisdicitons destroy misdmeanor files. Unless the record is sealed, anyone can see your record, including (but not limited to) potential employers and licensing agencies
Do I Have to Appear in Court for an Expungement?
Typically you do not. The California expungement process permits a lawyer to appear on your behalf through all stages of the proceeding. A judge may require your presence if you violated the terms and conditions of your probation for the offense you are seeking to have expunged.
How Long Does it Take to Seal My Records?
Typically 90 days, but this depends on the arresting agency and the county in which you were arrested
Depending on the county in which the coviction took place this process could take up to 6 months.
I Have a Felony and Can't Get a Green Card or Citizenship. What Can I Do?
You may be able to reduce your felony conviction to a misdemeanor, and this would make you eligible for permanent residency, and potentially U.S. ciizenship. It is also possible to completely set aside your conviction. Your liklihood of success is dependent on the specific facts and circumstances surrounding your conviction. Only by speaking with an experienced criminal lawyer is it possible to fully understand whether reduction is an option for you.
How Much Will This Cost?
Potentially nothing. If you financially qualify for a public defender, you may qualify for a free expungement. Under PC 1203.4(d), the court costs of a dismissal (expungement) are not to exceed $150, however San Bernadino county charges up to $194. In San Diego county the court fee is $120 for a felony expungement and $60 for a misdemeanor expungement. You can request a fee waiver and if you financially qualify, the fees may be waived in full or in part.
My Misdeamnor is Over 5 Years Old.
Misdemeanor cases that are older than 5 years may be purged (destroyed) by the court at any time, depending on the charges. In some cases, it can be less than that. If your original court file has been purged, it is more difficult to obtain an expungement. You may need to contact the Department of Justice (DOJ) in Sacramento to obtain a copy of criminal history report ("CII" - Criminal Identification and Information"). The DOJ will give you materials to fill out and will only release the report to you upon proper identification (i.e. fingerprints). Contact our office to confirm your case has been purged before following this procedure. The DOJ charges you to receive the report. Getting LiveScan fingerprints or a fingerprint card done can also incur a fee. You can get information on the procedure by contacting the DOJ in a number of ways.
By Mail: California Department of Justice, RECORD REVIEW UNIT, PO Box 903417, Sacramento CA 94203-4170
By Phone: (916) 227-3838
California Penal Code 1203.4
(a)(1)"[Petitioner shall]...be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilitiesresulting from the offense of which he or she has been convicted, except as provided..."