Committing a crime will have a profound impact on your record and reputation. A criminal record will considerably alter your everyday life, influencing everything from employment opportunities to housing options and even the ability to travel. However, you can take charge of your life by filing for an expungement, a legal process allowing you to set aside specific criminal convictions and dismiss them from your criminal records.
While you can file for expungement alone, having a qualified expungement attorney by your side will help make the process trouble-free and increase your chances of an expunction. A qualified expungement attorney will assist you with the necessary paperwork, gather the required documents, and represent you during court hearings.
Expungement at a Glance
A criminal conviction will hurt your chances of attending college, securing a job, advancing your career, or renting a place. A qualified expungement attorney will set aside the sentence on your record through an expungement.
Expungement is the legal process allowing you to dismiss convictions from your criminal record under particular circumstances. After expunging your conviction, it will no longer appear on most background checks. An expungement enables you to start life afresh. However, the expungement procedure will not erase your conviction altogether from your record. Still, it will change its legal status so that it is no longer visible to employers, landlords, or others performing background checks. Expungement generally applies to convictions.
An expunction is permitted if:
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You have completed your sentence
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If you have completed all probation conditions
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You do not face charges for other crimes
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You did not serve a prison sentence for the offense
If a judge successfully grants an expungement, the conviction is set aside and the case dismissed. However, the sentence remains on your record but marks it as dismissed. The dismissal will keep certain employers, landlords, and credit agencies from seeing the conviction when conducting a background check. However, for a job interview, not including a government job, you can answer that you have never been convicted of a crime in particular circumstances. However, in other situations, you must reveal the sentence.
Crimes You Cannot Expunge
When you have been convicted in the past for committing a crime, the convictions will appear in your criminal record. Employers, educational facilities, and property managers will see the record when they run background checks. Expunging your record means that your criminal history will be removed from public access, denying members of the public access. However, due to existing laws, some crimes cannot be expunged. Crimes ineligible for expunction are:
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Murder
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Violent crimes
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Sex offenses
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Child molestation
Traffic violations and multiple convictions can be expunged but under special circumstances.
Scrutinizing Your Case Before Requesting an Expunction
Not everyone convicted of committing a crime is eligible for an expungement since, in California, people eligible to seek an expungement are determined on a case-to-case basis, depending on the circumstances of their case. Therefore, you must know the circumstances of your case and whether you can apply for an expungement early enough. You can examine your case before applying for an expungement following these simple steps:
Retrieve Your Criminal History
You should obtain all the relevant copies necessary to analyze and familiarize yourself with your case from your parole officer. Alternatively, you can visit the Attorney General’s office or the California State Department of Justice Criminal Record Review Unit to access your files. However, you must pay a fee, although if you are eligible for a waiver, you will not make any payment to access the files. Once you order the records, it will take weeks for the paperwork to be mailed.
Find Out if You are Eligible for Expungement
If you have been convicted of a misdemeanor or a felony, you can expunge your record, but only if you meet the criteria provided under the law. However, when the conviction is for a felony, you qualify for expunction if the offense could have been charged as a misdemeanor under Proposition 47. You qualify for expungement if:
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You have no open criminal case
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You are not currently serving a criminal conviction for a crime
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You have completed probation
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You were not sentenced to serve or served time in prison, but this would not have happened if your case had been adjudicated after realignment as per Prop 47.
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You have completed probation or secured an early probation termination if you seek expunction under PEN 1203.4
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You do not have outstanding monetary court fines
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You have completed your sentence, including its conditions like community labor
If you meet this criterion, you can request the court to expunge your record.
Understand Your Probation Status
You are qualified for expungement if you have completed your probation or your sentence did not require you to be on probation. However, if you are still on probation, you must have your probation terminated before applying for expungement. You will be required to petition the court to terminate your probation. The court will conduct a trial to determine your petition and, at its discretion, decide whether to terminate your probation. The court, during the hearing to determine whether to terminate your probation or not, will consider the following factors:
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Your conviction and its severity
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Your criminal history
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Your ability to secure meaningful employment upon probation termination
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Why you are deserving of the probation termination
Generally, you must complete probation without violating the probationary terms to qualify for an expunction. Nevertheless, it does not mean everything is lost, even after a violation. Despite the violation, the judge can schedule a special proceeding to establish your candidacy.
In probation violation cases, the judge has the discretion to decline or grant your expungement request. The factors they will take into account are:
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Your general performance during the probationary term
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The gravity of the baseline sentence
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Your criminal past
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Additional proof of your entitlement to the relief, like solid community ties, family support, and chances of securing a stable job.
Know the Documents you Will Require
To file for an expungement in California, you must obtain a PC 1203 form and fill it out. Further, you must go to the nearby courthouse and fill in the blank order of dismissal document. If you are currently on probation, you will need to file a petition to end your probation, and you can either draft the petition yourself or obtain one at the nearby courthouse. If your motion to bring to an end your probation is not allowed, you will need to file for an appeal; if the appeal is not permitted, you will need to file a motion to dismiss it.
The Process of Filing an Expungement
Now that you understand expungement and eligibility criteria, you can begin the process. The expunction procedure starts with a PEN 1203.42 petition. You can lodge the petition in person, with the help of a lawyer, or through a probation officer (PO) in writing.
After the petition, the court allows you to vacate your no-contest plea and enter a guilty plea. If the sentence happens after you have pleaded not guilty, the judge will put aside the verdict and dismiss your case. Later, you will be relieved of the penalties and collateral consequences of the sentence, similar to the expunction under PEN 1203.4.
Expungement entails several steps that your attorney will explain. These include:
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Enlisting the Services of a Competent Attorney
Expunging your record is lengthy, complex, and involves a lot of paperwork. Without knowledge of the process, you are prone to making several errors, leading to the rejection of your application. Experienced expungement attorneys know how to streamline the procedure by tackling the obstacles that arise in the process. Additionally, they will avoid common errors you will likely make when completing the forms, increasing the chances of a successful petition.
However, you must know that not every attorney will increase the chances of a successful expungement petition. You must find an experienced and licensed attorney with a proven track record in cases like yours.
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Obtain and Fill Out the Paperwork
Your attorney knows the forms you should retrieve and fill out depending on your case. You can find these forms in your local courthouse or through an online search. For instance, if you finished informal probation, you will file your expunction petition under PEN 1203.4. However, if you are yet to complete probation, you will start with an early probation termination motion. When rejected, you can file for a dismissal.
Wobbler felonies can be dismissed by first requesting the court to reduce the offense to a misdemeanor. However, when the conviction is for a direct felony, you can request a reduction to a misdemeanor by filling out forms prescribed under PEN 17(b)(3).
You will complete a single form for each record you seek to expunge. Also, you must attach the forms you plan to adduce as evidence in the hearing, like character references.
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File the Petition in Court
When you complete the relevant forms, you should submit or present them to the court where the trial happened. You should also deposit the filing fees with the court clerk. The cost of filing the documents varies depending on the crime in question. The fees also vary depending on the court where you submit your petition.
Filing policies differ from one court to another. Some require you to deliver the petition in person, while with others, you have the mailing option.
After filing, you should keep the timelines in mind. You should notify the prosecutor 15 days before the expungement hearing date to give them ample time to prepare their case if they want to contest your application.
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Prepare for the Expunction Proceeding
The court will set a hearing date for your case after receiving your petition for an expungement. The prosecutor will be informed about the petition and will prepare arguments against your petition for an expungement to be disallowed. Consulting with your attorney at this particular time is paramount to the success of your petition since your attorney will prepare you to answer any possible reasons against your application for an expungement. The attorney will guide you in gathering evidence pertinent to your case and help you prepare a statement to deliver to the court.
Ensure that you attend the hearing and dress correctly. The judge will consider your eligibility for the expunction depending on the facts of your case. The chances of your petition being granted by a judge are high if you can hold down a job, do not have an additional sentence, and have completed the requisite community service.
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Reapply if Your Petition is Rejected
The decision by the court will not always be in your favor, depending on the case’s facts. Therefore, if the court rejects your petition and you are unsatisfied with the outcome, you can lodge a new petition after six months.
However, when the court grants your request, your attorney will seal the criminal records to make them inaccessible. With the records sealed, you can claim you have never been convicted in most circumstances unless you are running for a public elective position, seeking state licensure, or applying for employment with the California Lottery Commission.
Benefits of an Expungement
You will enjoy several benefits once the court approves your expunction petition. These include:
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An employer cannot discriminate against you during a job application because of an expunged record
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It reduces the obstacles to securing a professional license issued by the state
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An expunged sentence cannot be utilized to impeach your credibility as a witness if the sentence is expunged, except if you are being prosecuted for a subsequent violation.
Limitations of an Expungement
A PEN 1203.4 expunction has several limitations. These include:
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It will not overturn your driving privileges withdrawal
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It will not restore your firearm ownership rights
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It will not end your obligation to enlist as a sexual predator or offender
The prosecutor can also use an expunged record for sentence enhancement in subsequent offenses. For example, an expunged DUI will count as a prior, leading to increased penalties if you are charged and convicted of a second or subsequent drunk or drugged driving offense.
If the expunged sentence were for a strikeable offense, it would still be a strike despite the expunction.
Ways of Restoring Additional Rights After Conviction
Apart from expungement, you can restore extra rights through:
A Rehabilitation Certificate
A rehabilitation certificate is a court order that says someone convicted of a crime and served time in a state or local prison has been rehabilitated. You can obtain a certificate to declare that you have been rehabilitated and are now a law-abiding citizen.
In general, rehabilitation means that for many years after your conviction, you lived an honest and upright life, followed the law, and showed good moral character. A rehabilitation certificate does not delete your criminal history. However, it can have some benefits, such as helping when applying for a job or state professional license.
The certificate serves as an application for a Governor’s Pardon.
You must file a petition for a certificate in your county's Superior Court to start the process. A judge then can issue a rehabilitation cert upon proper petition. The petition is sent to the California Governor if a judge grants it. To be eligible, you must meet the following requirements:
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You should be a resident of California.
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You must wait for at least seven years after release before applying
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Your conviction must be among those that qualify for a rehabilitation certifcate
You are ineligible for an application if:
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You are in the military
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You reside out of state
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You are on mandatory life parole
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You have a death sentence
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You are guilty of sex offenses involving a minor
If you are ineligible to apply for a rehabilitation certificate, you can apply to the governor for a direct pardon.
Pardon
You can apply for a pardon if you have been declared guilty of a criminal offense by a judge's decision in a court of law. A pardon is when the Governor of California frees the accused person of guilt for the commission of a crime and relieves the accused from any penalties of law for those acts. If you have been granted a pardon, it acts as a form of forgiveness for the criminal acts you committed and helps restore some of your rights. The governor grants pardon to those rehabilitated from the crime, meaning that a pardon is not viable if you are in jail. The governor of California cannot grant a pardon for a conviction from another state.
A pardon is not an expungement, as it does not remove your criminal record from public records. You must disclose your conviction on a government job application or a job interview; however, you do not have to do so when it comes to a private job.
Find a Competent Expunction Attorney Near Me
Filing for expungement of a criminal case is essential to opening doors of opportunities for yourself and starting life afresh. Whether you want to further your career, join an institution, or clear your criminal history, expungement could be an answer. Criminal record expungement is a complicated and time-consuming process. To increase the likelihood of a successful application for expungement, you should work with an experienced team of criminal defense attorneys.
At Darwish Law, we understand criminal record expungement laws and the process you need to follow to have your criminal record expunged. Our criminal defense attorneys will assess your situation to determine your eligibility. We will file the paperwork and represent you once we have determined you are eligible for expungement. Call us today at 714-887-4810 to discuss your case in Santa Ana.