FREQUENTLY ASKED QUESTIONS: How Do I Get An Expungement?

What is an expungement?

The first thing that someone who wants to apply for an expungement needs to understand is that if your petition is granted under Penal Code 1203.4, your case is not sealed.  A criminal record is not actually "expunged" under this statute.  That term implies complete erasure, as if the case had never occurred.  A more proper term is "dismissal".  The conviction remains on your record for many purposes, including sex offender registration and immigration consequences.  What the statute provides is, except as elsewhere stated, the defendant is 'released from all penalties and disabilities resulting from the offense'.  There are numerous limitations to this relief.

An adult who was granted probation, completed all the terms of probation, and is no longer on probation, is eligible for relief under this statute.He or she must not be on probation, or serving a sentence, for any other offense, anywhere. (Penal Code § 1203.4) 

If you were denied probation, you can still obtain an expungement.  You still cannot be on probation or serving a sentence for any other case.  Applicants must wait for one year after their conviction before applying for expungement (Penal Code§1203.4a)

If your criminal case was reduced to an infraction, you are now eligible for an expungement under Penal Code section 1203.4a.


What are the effects of expungement under PC1203.4/1203.4a?

It Will:

1. Result in a new entry in the court record showing the dismissal of the case;

2. Allow you to answer on many, but not all, job applications that you have not been convicted. If, however, you are applying for a government job or a job which requires a government-issued license, certificate, or permit, or a job which involves a security clearance, the conviction will be discovered; in such cases, you should disclose the initial conviction and its later expungement;

3. Prevent use of the conviction to impeach you if you testify as a witness, unless you are being tried for a subsequent offense.

4. If the conviction was for a felony, expungement is the first step in obtaining a pardon. 

It Will Not:

1. Remove the conviction from your "Rap Sheet" - California and FBI criminal history records will still show the conviction and the later dismissal "per PC 1203.4"; 

2. Reinstate the right to possess firearms,if it was taken away (reduction to a misdemeanor may accomplish this if the offense is not one of violence;)

3. Remove the requirement to register as a sex offender per PC290.  If the expungement is granted,  registrants must then complete and file paperwork requesting a Certificate of Rehabilitation, when  eligible.  A Certificate of Rehabilitation will relieve specified sex offenders from further registration.   This is true for both felony and misdemeanor convictions.

4. Allow you to omit the conviction from applications for government issued licenses;

5. Seal or otherwise remove the court case file from public inspection - anyone who knows where to look will be able to find the court case file (probation reports are in confidential files and are not subject to public inspection 90 days after sentencing;)

6. Prevent the conviction from being used as a "prior" or "strike prior" to increase punishment on a subsequent conviction;

7. Prevent the conviction from being used for impeachment purposes on a subsequent offense;

8. Prevent the conviction from being considered and used to refuse or revoke government licenses and permits such as real estate sales licenses, teaching credentials, bus drivers licenses, security guard certificates, etc.; however, the expungement may reduce the weight given the conviction by the licensing agency.

9. Prevent the conviction from being used by INS for removal and exclusion purposes.

How is expungement accomplished?

The applicant must complete a 'Petition for Relief' form and submit it to the Superior Court for review and a decision by the court.  The Court charges for the cost of a dismissal, however, this cost may be waived if you qualify.

The Superior Court’s website contains helpful information about the expungement process for both misdemeanors and felonies.  If you feel that you are unable to pay the court fees, you can file a 'Financial Declaration", along with the petition.  The Court will make a decision on waiving the fees on the case.  You can file these forms yourself by filing out the forms online, printing them out, and sending, or taking them to the court address on the form.  The court normally takes at least 6-8  weeks to make a decision on a case.

Misdemeanors and infractions do not require any other information other than what is on the the form,unless you violated probation or committed new crimes.  Felonies always require additional paperwork.  A motion must be written and filed with your felony petition.  A court hearing will be scheduled and you will need to appear.  You will need to go to your local law library to inquire about how to properly write a motion for the court.  If you have more than one case you wish to expunge, you should contact our office for assistance.

 

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