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Archive for the month “March, 2012”

Expungement? Should I Get One? Why?


Over the last ten years as a practicing attorney I have been asked several times what does it mean to have your criminal record or your conviction expunged. Many people mistakenly believe that after a certain number of years a criminal conviction simply disappears like ancient debts eventually fall off of a person’s credit report. However the criminal justice system doesn’t quite work that way. Even when a person is legally eligible for an expungement or if they have a legal right to an expungement it still does not happen automatically. Nothing (well almost nothing) happens automatically in the criminal justice system.

So first we will discuss what needs to be done to have your conviction expunged and then we will proceed to a discussion of whether or not it is something that you should do or that you should suggest to a love one. The first thing you need to find out is if you are eligible for an expungement. Generally if you go to prison for a crime you are not eligible for an expungement. If you were placed on probation and you failed to complete all of the terms of your probation you may not be eligible. For example if you failed to pay your fines or your restitution. The easiest way to determine if you are eligible is to contact an attorney and have them review your case. Once you determine that you are eligible for the relief you need to file paper work (a written motion) requesting the expungement, pay a filing fee and appear in court. If you hire an attorney all of those things can be done for you by the attorney. However, this process can be done without an attorney, having an attorney simply makes it a lot easier and prevents you from wasting a significant amount of time. As a Deputy District Attorney I handled hundreds of such cases and I saw people coming back and forth to court (missing work) because they had not filed the paper work correctly. They failed to serve the District Attorney’s office, or they simply did not know what to request. Another benefit of having the assistance of an attorney is because your attorney will know what charges are eligible and what charges are not eligible for the relief. In addition, some of the eligible charges are at the discretion of the court therefore the court in theory could deny your motion. Hence it will be helpful to have an attorney. Generally when I am initially retained for a misdemeanor I include the expungement process as part of the services covered under the original retainer. Therefore at the time of your initial consultation I will explain the process of having your conviction expunged and I actually help you with that process. If you are hiring an attorney and you are concerned about the future consequences of the conviction you should ask your attorney about the possibility of having the conviction expunged later. Actually, your attorney should initiate that conversation, however if he or she fails to you should ask him or her about that process.

Now what is the benefit of having your criminal conviction expunged?

Penal Code section 1203.4(a) states in part that: In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, 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 plea of 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 . . .

So what does all of that mean? Well when a conviction is being expunged the person previously convicted is withdrawing their previous plea (or the judge is withdrawing the prior verdict) and the court is dismissing the case against the defendant. Now from the standpoint of the criminal justice system the conviction remains and can still effect future punishment for new offenses. However the criminal record or “Rap Sheet” will note that the conviction was dismissed in the interest of justice. However, in the civil world (unless you are applying for a government job, state issued license or a ¬†clearance of some sort) you can legitimately say that you had not been convicted of the crime because the case was dismissed.

This is based in part on the labor code which states in part:

432.7.  (a) No employer, whether a public agency or private
individual or corporation, shall ask an applicant for employment to
disclose, through any written form or verbally, information
concerning an arrest or detention that did not result in conviction,
or information concerning a referral to, and participation in, any
pretrial or post trial diversion program, nor shall any employer seek
from any source whatsoever, or utilize, as a factor in determining
any condition of employment including hiring, promotion, termination,
or any apprenticeship training program or any other training program
leading to employment, any record of arrest or detention that did
not result in conviction, or any record regarding a referral to, and
participation in, any pretrial or post trial diversion program. As
used in this section, a conviction shall include a plea, verdict, or
finding of guilt regardless of whether sentence is imposed by the
court. Nothing in this section shall prevent an employer from asking
an employee or applicant for employment about an arrest for which the
employee or applicant is out on bail or on his or her own
recognizance pending trial.

However, if the charge was a felony the expungement may not restore all of your rights (like the right to possess a firearm). This process can serve as the first step to have those rights restored. In addition, if the case can be reduced to a misdemeanor before the expungement (only certain felonies called “wobblers” can be reduced) then depending on the type of charge some of your rights may be restored.



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