Record Expungement

There are several criteria that indicate that a person may be eligible for record expungement. Firstly, you cannot have been sentenced to a term in state prison (with limited exceptions) and secondly, you must have completed your probation period after conviction. Additionally, there are other criteria that may prevent you from having your record expunged.

1) You cannot have any current open cases.

2) You cannot be on probation for any conviction, including but not limited the conviction you are looking to expunge.

3) You cannot be serving a sentence for any type of offense, including but not limited to the conviction you are looking to expunge.

4) You cannot expunge certain sex crimes such as offenses under Penal Code 286(c), 288, 288a, and 261.5(d), or in other words, sex crimes dealing with minors.

Every situation and every case is unique and therefore the eligibility for expungement is never a clear cut answer. It is important to consult with an experienced attorney to determine your eligibility.

Penal Code 1203.4 states the eligibility for expungement. Although each case differs, you will generally be considered eligible for expungement if you meet the following criteria:

1. You have completed formal or informal probation.

2. You are not serving a sentence for any criminal offense, including but not necessarily the offense you are looking to expunge or another pending criminal case.

3. Your sentence was not served in a state prison.

The first part of PC 1203.4 says that you need to have completed your formal or informal probation before the court will grant your expungement. Both informal and formal probation are alternatives to jail time and involve reporting back to a probation officer or back to the court. Informal probation or misdemeanor probation often entails periodically reporting back to the court itself and lasts one to three years. During informal probation, you are often required to comply with additional conditions such as court-ordered counseling or community service. Similarly, formal probation lasts from three to five years, also often has additional conditions to comply with, but instead of self-reporting to the court, you are required to report to a probation officer. Failing to comply with the court-ordered conditions or failing to report back to the court or probation officer, results in a failed probation and can possibly even lead to more jail time. However, this does not necessarily mean that you will not be eligible for expungement. Minor offenses during probation may be overlooked or probation may be altered depending on a court hearing. It is important to find the right lawyer to understand the right strategy for you to face a better chance at successfully expunging your criminal record.

An additional factor to consider when pursuing expungement is Proposition 47. In the state of California, Proposition 47 allows for certain convictions that would typically lead to time in a state prison, to be instead be served in county jail. This means that under the right conditions, a conviction that may not have been able to been expunged if you had served time in state prison, can now be eligible for record expungement. This is particularly notable because offenses that occurred before Proposition 47 passed in 2011 can be considered for record expungement.

The expungement process begins with selecting the right attorney to represent you. Many law firms will offer a free consultation to evaluate if you meet the eligibility requirements to apply for record expungement. Take advantage of these opportunities because even if you are ineligible, there are always other steps to take.

After consulting, your attorney will conduct research on the details of your case by obtaining any records or legal documentation relevant to the case. Your attorney will also draft and file the necessary forms with the court. The forms will then be sent to the prosecution because of the prosecution from the original reserves the right to object to the record expungement.

Your case will be heard at the same court that held the initial ruling. Your attorney will attend the hearing and advocate on your behalf to the judge. After your attorney presents your arguments, it is up to the judge to determine whether or not to allow the expungement.

On average, the entire process takes about 6 to 8 weeks. Although a good attorney can have a strong petition ready to go in a matter of days, the court can be scheduled weeks or even months in advance. If you are depending on record expungement in a timely manner, it is important that you contact an attorney immediately for a consultation.

While record expungement can certainly help set get back on your feet after a criminal conviction, there are still certain limitations surrounding record expungement. For example, a record expungement cannot help you get your driver’s license back if it was suspended or revoked. Expungement also cannot restore firearm rights to a felon per Penal Code 29800 or remove the obligation to register as a sex offender under Penal Code 290. Additionally, in the case of repeated offense or a new case, expunged records of a conviction may be considered as a prior conviction during a case’s sentencing (e.g. an expunged DUI record would still count as a prior in a new DUI case).

Under Proposition 36, the state of California also maintains a Three Strikes law for sentencing. The three strikes law essentially allows for three serious felony convictions for any individual, with each additional felony after the first resulting in more severe sentences. The second felony conviction, with a prior serious felony conviction, results in double the typical jail sentence. The third felony conviction, with two prior serious felony conviction, results in a sentence of 25-years to life. In the case of Three Strikes sentencing, an expunged record will still count as a prior conviction.

The most common reason to petition for a record expungement is for a job search. In the past, it was uncommon for anyone except for law enforcement to find and use criminal records in background checks. More recently, many background checks have been utilizing services that actively document criminal court records into a national database, making it much easier for potential employers to access criminal records. Expungement makes it unlawful for an employer to deny you employment based on your expunged record, therefore raising the likelihood of finding employment.

If a record expungement is not enough, there may be a few other options open for you. One option you may be looking for is a California Certificate of Rehabilitation. A Certificate of Rehabilitation (COR) is an official court-order stating that the offender of a felony or misdemeanor sex offense is rehabilitated. The process is more rigorous than obtaining a record expungement, and it is the first step in the process of obtaining a California Governor’s Pardon. The eligibility requirements state that you must have served your prison sentence, been discharged from parole or probation, have not served another sentence in state prison since, and have lived in the state of California continuously for five years. If you meet all of these criteria, then the district attorney may investigate into your case to determine whether or not you are suitable for rehabilitation. Applying for a COR is a process that anyone is able to start on their own, but if you are pursuing a COR, it is highly recommended that you contact and hire an attorney to guide the process. Your attorney will be able to determine whether or not you have a strong case for a petition or if you need to take other steps first before you apply for a COR. The right attorney will dramatically increase your chances at a successful COR petition.

Beyond obtaining a COR, you may be looking for a California Governor’s Pardon. The eligibility laws for a governor’s pardon say that you must have completed probation or parole more than 10 years prior to the pardon and you must have a clean criminal record in that 10-year period. Even then, a pardon is entirely up to each governor, so it is difficult to determine whether or not a person will be able to receive a pardon.

Finally, the final course of action beyond record expungement is to seal and destroy your record. Sealing and destroying a record is a completely different process and is defined under SB 383. You are eligible to seal and destroy a record under several conditions. If you were arrested but charges were never filed by the prosecutor, you may still have a record that can be sealed and destroyed. Additionally, if the case was dismissed by the court, if your case was heard in court and found not guilty by a jury, or if your conviction was overturned in an appeal, you are eligible to seal and destroy those records. This process allows you to say that you have never been arrested at all because the defendant of the sealed and destroyed case must be declared innocent by the judge. This process is particularly relevant for juvenile arrest records because many cases of juvenile arrests are one-time offenses at a young age. Sealing and destroying these records as an adult with an otherwise clean record is a good idea and should be done as soon as possible.

How long does my record last after a record expungement?

Unfortunately, criminal records are kept indefinitely, even if the record was expunged under Penal Code 1203.4 PC. If the records are not sealed and destroyed, the existence of the record is permanent.

Who has access to my criminal record after the record is expunged?

In the state of California, criminal records are considered to be public records. Therefore, anyone may obtain access to a record even after expungement, unless the record is sealed. While the law doesn’t stop potential employers or landlords from accessing an expunged record, it does prevent them from using the expunged record to discriminate against you.

What happens when I expunge my record?

In the state of California, a record expungement is technically a change from a plea of guilty or no-contest that is removed by a judge. The defendant then enters a plea of "not guilty" and the case is then dismissed.

How long does it take to expunge my record?

A petition can be filed relatively quickly, even as quick as one or two business days. Unfortunately, depending on the county in which your case was originally heard, the case may not be heard in court for 6 to 8 weeks on average. If you are actively seeking employment during an expungement case, it is possible that they may still see your record.

How do I know if I am eligible for record expungement?

The best way to know if you are eligible for a record expungement is to contact an attorney and inform them of the details of your specific case. Additionally, you can review the eligibility requirements for record expungement that we listed above: 1) you have completed formal or informal probation; 2) you are not currently serving a sentence for any criminal offense a or a part of another pending criminal case, and 3) your sentence was not served in a state prison. It is always best to consult with a professional to make sure you qualify before moving forward.

What is a felony reduction?

In the state of California, certain offenses are considered to be “wobblers”, i.e. an offense that can be charged as a felony or misdemeanor. If you are looking to expunge a record, it may be a good first step to plead a felony down to a misdemeanor before attempting to petition for expungement. A good criminal attorney will be able to tell you when a felony reduction is the right move to make before attempting to expunge a record.

What is an early termination of probation?

If you are on probation for an offense but would like to expunge a record, your attorney can assist you with applying for an early termination of probation. This is particularly relevant for those individuals in the middle of a job search. Petitioning for an early termination of probation allows you to have successfully completed your probation before it is finished and therefore allow you to expunge the record earlier.

Do I need to go to court for my record expungement petition?

Not necessarily. Your lawyer may determine that it is important for you to be in court when the judge hears your case, but it is not necessary. The state of California allows your lawyer to advocate for you in your place and for most cases, you will never need to appear in court.

How much does it cost to file for expungement?

Each county varies on the filing fee, so it is important to have a criminal attorney who is familiar with your area. Generally speaking, a misdemeanor expungement will cost less than a felony expungement. In San Diego County, the petition fee for a misdemeanor is $60 and for a felony, the fee is $120. If you are unable to pay the full fee, there are assistance programs in place in every county.

How do I know that my record is expunged?

Your attorney should provide a signed court order from the judge, setting aside the conviction and dismissing the case. Until the court order is signed by the judge, the record cannot be expunged.

After record expungement, will I still have a criminal record?

Unfortunately, yes. Your record cannot be used against you in the hiring process, but that does not prevent anyone from viewing the record unless the record is sealed. However, once your record is expunged, you are legally able to state that you do not have a criminal record unless a) you are running for public office, b) you are working for the California Lottery Commission or c) you are applying for a state license.

Finding an experienced record expungement attorney that knows your locale is crucial to successfully petitioning for record expungement. If you are looking to have a record expunged in northern San Diego County or Vista, CA, Vista Criminal Attorney Law Firm offers a free consultation to determine your needs. Call 760-691-1551 to schedule your consultation.