How to Get Your Record Expunged in California
The legal procedures surrounding the expungement of a criminal record in California are governed primarily by the CA Penal Code § 1203.4. Understanding the intricacies of this procedures is of paramount importance to those seeking to clear their criminal history.
Is My Record Eligible for Expungement?
Eligibility for expungement in California is contingent on several key factors. The first and perhaps most important criterion is the successful completion of probation. For some, obtaining an early termination of probation may also pave the way for expungement.
A clean slate at the time of applying for expungement is also necessary. This means that there should be no pending criminal cases or ongoing sentences for other offenses. You should be aware that certain serious crimes, especially specific sex offenses, are ineligible for expungement. These offenses are viewed differently by the courts and are excluded from the benefits of expungement regardless of other circumstances. For greater precision, we recommend reading the following section.
Eligible and Ineligible Convictions
In California, most misdemeanors qualify for expungement, provided the individual has completed probation or, if no probation was imposed, at least a year has passed since the conviction. Felonies that resulted in county jail sentences, rather than state prison, are also potentially eligible for expungement. This is particularly relevant for “wobbler” offenses, which can be charged as either misdemeanors or felonies.
In contrast, convictions leading to a state prison sentence are usually not eligible for expungement. However, there are exceptions, particularly for cases falling under Proposition 47. This law was designed to reclassify certain nonviolent offenses from felonies to misdemeanors, which may open the door for expungement in some cases.
Serious or violent felonies, especially those involving sexual offenses against minors, are generally excluded from expungement. The courts maintain strict guidelines regarding these offenses, reflecting the severity with which they are viewed under the law.
The Steps involved in the Expungement Process
The expungement process in California consists of several steps that must be meticulously followed.
Gathering Criminal Records
The process begins with the collection of all relevant documents related to the conviction in question. These records can be sourced from several places, including your attorney, probation officer, or directly from the court where the conviction occurred. Having all necessary documents in order is a must before moving forward with the expungement application.
Determining Eligibility
The next step is to verify that the conviction is indeed eligible for expungement. This step can be complex, and seeking advice from a legal professional is highly recommended. A lawyer will provide the necessary clarity and ensure that you meet all the requirements for expungement so as to avoid unnecessary delays in the process.
Completing the Required Forms
After confirming eligibility, the next phase involves completing the necessary paperwork. The primary document required is the petition for dismissal under Penal Code § 1203.4. Filling out this petition correctly is paramount as it forms the foundation of your expungement request.
Filing the Petition with the Court
The completed petition must then be submitted to the court where the original conviction was handed down. Filing fees are generally required at this stage, though fee waivers are available for those who meet specific financial criteria.
Attending the Court Hearing
In some instances, a court hearing will be scheduled as part of the expungement process. During the hearing, you might be asked to present your case effectively, especially when it comes to demonstrating how expungement would benefit both you and society. The court will consider your arguments before making a decision.
Awaiting the Court’s Decision
After the hearing, the court will deliberate on the case. If the expungement is granted, the original plea is withdrawn, a not guilty plea is entered, and the case is dismissed. This legal alteration changes the nature of the record, making it appear as though the conviction never occurred, though certain limitations still apply.
Understanding the Limitations of Expungement
While expungement offers significant relief, it has its limitations. Contrary to some beliefs, expungement does not erase a criminal record entirely. The record of the arrest and the original charges still exist, and the expunged conviction may still appear on background checks, albeit with a notation indicating that the conviction was dismissed.
Expungement also does not restore certain rights that may have been lost due to the conviction. For instance, the right to own or possess firearms is not reinstated through expungement. Similarly, individuals required to register as sex offenders will still need to fulfill this obligation even after their record has been expunged.
Another notable limitation is that an expunged conviction can still be used as a prior offense in future criminal cases. This is particularly relevant under California’s Three Strikes Law, where a prior expunged conviction can still count as a “strike” and influence sentencing in future legal proceedings.
Regarding immigration issues, the effects of expungement are also limited. Federal immigration authorities may still consider expunged convictions when making decisions related to deportation or naturalization.
Timeframe for Expungement
The expungement process in California generally takes between 90 to 120 days, or approximately three to four months, once eligibility is established. However, several factors can influence this timeline. The complexity of the case plays a significant role, with more intricate cases often requiring additional time to process. The type of conviction, whether it’s a misdemeanor or felony, also impacts the timeline, with felonies typically requiring more time.
The efficiency of the court handling the petition is another factor that should be taken into consideration. Some courthouses, particularly in areas like Los Angeles and Orange County, are known for processing expungement petitions relatively quickly. However, if the court requests a probation report as part of the expungement process, this can extend the overall timeline.
The Difference between Expungement and Record Sealing
Expungement and record sealing are often confused but are distinct legal processes with different outcomes. Expungement is available to those who have been convicted of a crime, allowing for the dismissal of a conviction.
Record sealing, on the other hand, applies primarily to cases that did not result in a conviction. For example, if charges were dropped or a case was dismissed, the record of the arrest or charge can be sealed. This effectively prevents the public and most employers from accessing the record, though law enforcement agencies may still view it.