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Expunging One’s Criminal Record

Expunging One's Criminal Record[Note: The following article refers exclusively to California law and statutes in that state unless explicitly stated otherwise.]

Among the most common telephone calls I get in my criminal defense practice is, “Can you help me clear up my record?” The majority of these callers say they want to “expunge” old misdemeanor convictions for something like petty theft (Penal Code §488 or §490.5) or minor drug use or possession (respectively, Health & Safety Code §11550 or §11377).

This article deals with the most familiar focus of that inquiry – relief under Penal Code §1203.4. Certainly there are other means of relief (Certificate of Rehabilitation and a Governor’s Pardon), but this is the one to which most clients refer when they talk about expungement. Here I will introduce the statute and discuss who qualifies under the law, the process involved, and what the practical effects of relief might be for your clients.

“Expungement” – First, if you check a standard dictionary, like Webster’s, you find that the term “expunge” suggests that something will be erased, deleted, cancelled out, or removed completely. Most people who call me start with the belief that expungement means the same thing in the law – the conviction will be forever erased and, thankfully, forgotten. That is not the case. And for that reason criminal defense attorneys have been known to encourage one another to expunge the term “expungement” from their vocabularies. Despite the fact that the section itself uses that term, it is misleading to have clients believe an earlier conviction will simply disappear. I cover this more fully below in talking about the relief one can expect.

The Process– To get started on the road to relief, the client, with or without the assistance of an attorney, has to complete and submit a standard form petition. In San Bernardino County courts, one can pick up the petition at the court clerk’s “criminal” window. The petition is also available as Judicial Council Form CR-180.

The petition asks for fairly basic name and case information, including the case number and the date of conviction. The completed form must be submitted to the clerk’s office for processing. When filing the petition, always go to the court at which the client’s case was originally handled. That is where the court’s copy of the file will be located.

The court may impose a cost to the petitioner of up to $120, whether or not the petition is granted, based on ability to pay. (See Penal Code §1203.4(d)) On average, it takes most of our county’s courts about 4-6 weeks to render a decision. I have had it take as little as 2 weeks and as long as 3 months. The timing varies based on the age of the case (older cases are archived and must be ordered), how busy the courts are, and how quickly the probation department checks the petitioner’s background. The petitioner and, if applicable, his/her attorney will receive notice in the mail as to the court’s decision.

Relief Under the Statute – The realities of relief pursuant to Penal Code §1203.4 are fairly clear from the language of the statute. For our purposes here, I will use a routine example of an old conviction (at least three years past and the person is no longer on probation) for a misdemeanor offense. (Note: The process for obtaining relief becomes more complex for a client still on probation for the instant offense and/or a client who wants to “expunge” a felony conviction.) The law states in part:

“(a) In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, … the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or … 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…”

The best part of the statute is that the court shall take the actions described, so long as the client meets the stated criteria: completed probation, is not serving a sentence or on probation for another offense, and is not presently charged with another offense. Clients are sometimes surprised and understandably disappointed when they learn that the law does not afford the full spectrum of relief that they anticipated.

Practical Effects and Limitations of Relief – Individuals who call about expungement are usually motivated to do so for one of three reasons: (1) S/he is applying for a new job and does not want to have to say on the application that, “yes, I have been convicted of a crime;” (2) S/he has applied for a special license (often in real estate or nursing) and wants the conviction “erased” so it will not show on a background check; or (3) S/he is involved in a child custody dispute and believes that a clean record will strengthen her/his legal position.

A careful reading of the statute is important to being able to counsel clients about what they can and cannot expect. Continuing where we left off earlier, Penal Code 1203.4(a) goes on to tell us that “… except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted…”

These are the basic effects and limitations, for which specific code references are given within the statute:

1. The statute does not say that one can answer “no” to a question asking whether one has suffered any prior convictions. (Note: But there are limits to what an employer may do to learn about such convictions. See the California Code of Regulations, defining “employer” and providing meaningful relief by making it unlawful for an employer to seek information about an applicant’s misdemeanor conviction for which probation was successfully completed or otherwise discharged, and the case has been dismissed per Penal Code §1203.4.)

2. The conviction can be used by the prosecutor as a prior conviction in a subsequent prosecution for another offense.

3. Any revocation or suspension of driving privileges remains in force.

4. “Expungement” does not automatically remove the requirement to register as a sex offender for specified sex offenses or undo the restrictions imposed on one’s ability to own or possess a firearm.

5. Finally, it does not relieve the petitioner of an obligation to disclose the conviction when contracting with the California State Lottery or applying for licensure with a state or local agency, or for public office.

As you can see, this simple act of “expungement” does not eliminate all evidence of a conviction from your client’s record. Similarly, it does not necessarily relieve your client of certain requirements and restrictions arising out of a criminal conviction.

I have not even touched on related statutes (e.g., Penal Code §§1203 [early termination of probation], 1203.4a [misdemeanor conviction without probation], 1203.45 [sealing records], and 4852.01, et.seq. [certificate of rehabilitation and pardon]). Suffice to say, a careful reading of all of these statutes may be necessary to assist your clients who are trying to clean up their records.

Source: Donna L. Connally

Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information can not be guaranteed. Readers act on this information solely at their own risk. Neither the author, handelonthelaw.com, or any of its affiliates shall have any liability stemming from this article.