Individuals with criminal records in California face numerous challenges when leading their everyday lives. A record of criminal activity can create several obstacles for ex-convicts seeking to secure employment, rent an apartment or house, or, in certain instances, enroll in college. Qualified individuals may apply for an expungement, as permitted by state law, to have their convictions removed from their criminal records. But how does a person qualify to expunge their record, and how do they go about it? This blog explains.
What Does Expungement Involve?
Expungement is the legal process to erase a conviction record from public access. This process is authorized under PC 1203.4. When a record is expunged, it remains accessible to police agencies. However, prospective employers and anybody else running a background check on you will not be able to view it.
Expungement works as a lawful order signifying that you have fulfilled all your duties to the legal justice system and, thus, prevents your past record from adversely affecting your future opportunities. In summary, the expungement process results in your past criminal conviction record being cancelled. The record will no longer appear on criminal background checks, and the general public will be unable to view it.
That means after this process, you will not have to reveal your prior felony or misdemeanor conviction during job interviews, on job applications, or when seeking a loan or a home. Also, you can comfortably answer “no” if anyone asks whether you have been convicted or arrested for the expunged violation.
Under California law, the expungement process releases ex-convicts from most of the consequences and disabilities originating from a conviction. Nevertheless, it is essential to remember that specific restrictions apply. For example, an expungement will not:
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Prevent the expunged criminal record from applying as a prior violation in future criminal cases
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Relieve you of the condition to comply with sex offender registration under PC 290
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Remove the deleted conviction from the California Department of Justice (DOJ) database
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Reinstate your gun rights if your conviction was for a felony.
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Reinstate a revoked or suspended driver's license
How to Qualify for an Expungement
Just because you reside in California or were convicted in California does not imply you are an automatic candidate for an expungement process. The decision regarding eligibility is based on several factors. They include the type of charge, the sentence the court imposed, and whether you have fully adhered to all court-ordered requirements. Generally, you qualify for an expungement if the following is true:
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You completed probation if it was part of your sentence. You must have fully served your probation sentence without violating the terms for you to be able to expunge your record. This includes satisfying all of the imposed probation terms. Some prevalent probation conditions include, without limitation:
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Payment of restitution and fines
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Successful completion of counseling programs or community service
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Violation of no other law
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Obeying all jail and court rules, regulations, orders, and directives
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Attending regular meetings with your probation officer
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Attend Alcohol programs or drug treatment programs
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Agreeing to undergo law enforcement searches and seizures of your property or person, whether or not there is a warrant
If you had violated your probation conditions, you may still qualify to expunge your record. However, this will be at the judge's discretion. The court may hold a proceeding to decide whether or not to grant your expungement petition despite your violation of probation.
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Your conviction should be for a misdemeanor offense or a felony offense that carries a jail sentence, and you must have successfully served the jail term if it was imposed. Most misdemeanor crimes and some felony violations are eligible for record expungement. However, some serious violations, like sexual offenses involving minors, do not qualify.
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You have no unresolved criminal cases. For you to qualify to delete your criminal record, there should be no pending criminal case against you. Also, you should not be currently serving a sentence for any other crime.
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You have obtained post-conviction relief if the offense is a felony. If you seek to expunge a felony conviction, you may have to petition the court to reduce your charges to misdemeanors under PC 17b before seeking an expungement.
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You have complied with the deadlines. California statute imposes time frames within which you can file an expungement petition. So, it is essential not to miss them.
You qualify to file your expungement petition as soon as you have completed your probation. Should the court terminate your probation early, you can request an expungement once your probation ends (PC 1203.3). If the court found you guilty of a misdemeanor and it did not grant you probation, you may file your expungement petition after 12 months have elapsed since the judge issued their judgment on your case.
How to Expunge Your Record
The process of expunging your record may seem intimidating, but it becomes manageable once you know the required steps. The following is an overview of the process:
Determining Eligibility.
Start by reviewing whether you qualify for an expungement under California statutes. Seek legal counsel by consulting a lawyer to review the facts surrounding your conviction and acquire appropriate legal guidance.
Obtaining Case Records
Ensure that you collect all documentation associated with your conviction record. This includes the case number as well as any relevant charges and dates. The California DOJ will provide you with copies of your criminal records.
Filing the Petition
Fill out and submit the correct forms. Some of the forms you will need to complete are CR-180 (Petition for Dismissal) and CR-181 (Order for Dismissal). After completing the forms, submit them to the specific court that heard your case. You may have to pay filing charges, but a fee waiver is available if you qualify.
Notifying the D.A.
The legal procedure mandates you to send a copy of your expungement request to the D.A.’s office. The D.A. will have the chance to contest the petition should they consider it necessary.
Attending the Hearing
At times, the court might schedule a proceeding to hear your petition. Prepare to give the reasons why you are seeking to expunge your record and prove that you have rehabilitated yourself.
Wait for the Court’s Decision
Should the court grant your petition, you will withdraw your no-contest or guilty plea, or the court will set aside a guilty verdict if there was a trial. Then, the court will dismiss the conviction record, releasing you from all the consequences originating from the crime for which you had been convicted. Your criminal record will then be updated accordingly. In agreeing to an expungement, the court must determine that you have completed your probation or jail sentence, whichever was imposed, that you have undergone rehabilitation, and that it is in the interests of justice to expunge the record.
Should the court deny your request to expunge, you may appeal or repeat the process after a specific period has passed.
The process of expunging your record may be time-consuming and confusing, particularly for a layperson like you. The chances of committing mistakes while completing the necessary paperwork are high should you decide to navigate the process alone. It is, therefore, essential to hire an experienced expungement lawyer to help you. The lawyer will ensure you complete the forms correctly.
Additionally, they will guide you through any further requirements and explain the entire process in detail. Should you complete the forms incorrectly, you will be ineligible for an expungement. Thus, correctly completing the paperwork is essential if you are to be considered eligible for an expungement in California.
A New Law Broadened Who Qualifies for Expungement
In 2019, the state of California enacted the Clean Slate Act. This law went into effect on Jan. 1, 2021, and it required an automatic process of expunging conviction records for people found guilty of specific offenses after or on the effective date. But Senate Bill (SB) 731, enacted in 2023, broadened the scope of the previous statute on what crimes qualify for an expungement.
According to SB 731, courts may exercise their discretion to expunge specific felony convictions, even when the conviction led to a prison term. According to the previous statute, a felony offense could only qualify for an expungement if the conviction never resulted in a prison term; that is, it resulted in felony probation or jail time. Certain sex crimes mandating sex offender registration and offenses against minors were particularly left unqualified for expungement.
Specifically, following the amendments to PC 1203.4, as of Jul. 1, 2023, you can now qualify to expunge specific felony convictions that led to a prison term. In this case, the court may grant an expungement provided existing laws do not particularly exempt the felony offense, and a minimum of two years has elapsed since you completed your prison term.
SB 731 also allows the automatic expungement of specific crimes. According to the old statute, parties convicted before Jan. 1, 2021, were required to file a petition in court to seek an expungement of their records. But according to SB 731, specific conviction records dating back to Jan. 1, 1973, qualify for automatic expungement.
Whether a conviction record qualifies for automatic expungement is contingent on the nature of the charges. The eligibility requirements for an automatic expungement also differ contingent on the kind of crime in question. For a misdemeanor conviction to qualify for an automatic expungement, the following must be true:
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You have served probation or jail time.
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You completed your probation sentence, or a minimum of 12 months has elapsed if you were not subject to probation.
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You are not currently serving a sentence for another crime
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The conviction must not have required you to comply with the sex offender registration requirement
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You must not have any unresolved criminal charges
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The conviction must have happened on or after Jan. 1, 1973
For a felony conviction to qualify for an automatic expungement, the following must be true:
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You were subject to a prison term after Jan. 1, 2005, and have served your sentence.
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You have not had any felony conviction since you completed your sentence for the felony you seek to dismiss
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The conviction does require you to comply with the sex offender registration.
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You are not currently serving any sentence for any crime
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You have no unresolved criminal charges
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You are not presently on parole or probation for another offense
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You successfully served your incarceration period and completed any imposed parole, community service, or post-release probation
How You Benefit From Expungement If You Qualify
Expunging your conviction record can have several positive impacts on your professional and personal life. First of all, an expunged conviction record may enable you to secure employment. After successfully expunging your conviction from your criminal record, in many cases, you need not disclose it to your prospective employer. But when applying for federal or state government employment, you might be required to mention that you were convicted of an offense, but that the conviction record has been deleted.
After you have expunged your conviction, your criminal record will reflect that you faced an arrest, were found guilty of an offense, and the court set aside that conviction and dismissed the case in the interests of justice. This is a key difference from the factual innocence petition since your record will not be sealed and destroyed. Instead, your record will still show you were arrested before.
Even though it might appear as though an expungement never entirely erased your conviction from your criminal record, you want to remember that your criminal record will show your conviction has been dismissed. Per Labor Code Section 432.7, a prospective employer in California may not require you to provide details about detention or arrest that never led to a conviction.
When a prospective employer sees that you faced an arrest for an offense but were never convicted, they might not discriminate against you just for having been arrested. But if the arrest resulted in a conviction, the employer might find you ineligible based on your conviction. Thus, it is essential to expunge your conviction because it can increase your chances of securing employment.
Other benefits of expunging a conviction record, apart from increasing employment chances, include the following:
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Improved housing prospects. Typically, landlords perform background checks on their prospective tenants. If you have expunged your record, it will not appear on your background checks, which can increase your chances of being an attractive tenant.
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Higher chances of receiving a professional license. Expungement can help you retain or obtain professional licenses. However, you must disclose expunged records in certain instances.
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Peace of mind. Expunging your conviction record can give you a sense of closure and a fresh start.
Who Is Disqualified from an Expungement?
Even with the enactment of the Clean Slate Act, some former convicts remain ineligible for expungement. Individuals found guilty of a serious or violent felony are ineligible to expunge their conviction record. These crimes include robbery, rape, and murder. Additionally, individuals convicted of crimes requiring sex offender registration are not qualified to delete their records. Examples of these crimes include the following:
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Penal Code 261.5d, unlawful sex with a child under sixteen years old perpetrated by an individual above twenty-one years old
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Penal Code 289j, forcible sexual penetration with a child under fourteen years old
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Penal Code 288.5, continuous sexual abuse of a minor
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Penal Code 288a, oral copulation with a child
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Penal Code 288, lascivious and lewd acts with a child
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Penal Code 286c, sodomy of a minor
Other crimes that do not qualify for an expungement include the following:
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Special misdemeanor offenses under VC 42001
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VC 42002.1, failure to stop and agree to an inspection of equipment or for an unsafe condition endangering an individual
Common Misconceptions Regarding Expungement
Despite the benefits that an expungement provides, several misconceptions surround it. Here are some clarifications:
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Background checks and expungement. Expunged records may still be reflected in criminal background checks, although prospective employers are restricted on how they can utilize this information.
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An expungement does not apply to all offenses. Some convictions, like serious felonies or crimes necessitating registration as a sex offender, do not qualify for an expungement.
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An expungement is not automatic for all crimes. For crimes that do not qualify for an automatic expungement under the Clean Slate Act, you must petition the court to have your conviction record dismissed.
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An expungement does not seal criminal records. Unlike the record sealing process, an expungement does not entirely conceal your record. It only shows the record as dismissed, which is beneficial in many ways.
Find an Expungement Attorney Near Me
An expungement enables individuals to leave behind past mistakes and explore new opportunities. You must work hard to erase your record, but the benefits that result can entirely transform your life. If you wish to know whether you qualify for an expungement or need assistance expunging your criminal record, an experienced expungement lawyer can help you.
At Darwish Law, we have helped clients convicted in Santa Ana successfully expunge their criminal records, and we can do the same for you. If expungement is not an option, we will assess your case to determine other post-conviction relief options you qualify for and help you pursue them. Call 714-887-4810 to explore your legal options and commence your journey towards a new start.