The California expungement process gives convicts a clean slate. That is because it removes particular offenses from their criminal records. A criminal-free record can prevent many problems, including difficulty acquiring a house or securing employment. However, the law is specific about what criminal charges are expungeable to prevent abuse in the system. Read on to learn what crimes you can and cannot expunge.
What Expungement Means and Types of Expungeable Criminal Charges
Penal Code (PC) 1203.4 makes expungement possible in California. Expungement is the lawful process of removing particular convictions from a criminal record. It is a form of relief to assist in cleaning up an individual's past criminal record. This relief is an option for individuals with particular felony and misdemeanor convictions.
When you expunge a criminal conviction, you can lawfully state that you have never been found guilty of that specific offense. This can greatly improve personal relationships and employment opportunities. Although most background checks will still show your conviction and expungement, the law forbids an employer from using an expunged conviction against you when hiring.
There are several motivations for expungement:
- A person may not have challenged the charges against them before but never realized to what extent the conviction would impact their career or reputation later, or
- Perhaps they contested the charges, and the judge found them guilty nevertheless. Now, they wish to take advantage of the state's relatively progressive expungement statutes to avoid any unnecessary career barriers, for example, failing background checks, denial of professional licenses, et cetera.
It is crucial to understand that an expungement will not delete the criminal offense from police records. It simply seals or blocks it from the general public view. It is impossible to have law enforcement records altered, nor should you want to. That is because the police can use them in situations where you are unjustly convicted or accused.
Also, expunging a record does not mean requesting a judge to determine you were not guilty of an offense. Instead, you only ask them to seal the record per the state laws. Yet the impact is the same; expunging your record will be as if you were never found guilty of the offense in the first place.
Once the court grants your expungement petition, you will withdraw your no-contest or guilty plea. Or if the court had found you guilty at trial, it would set aside its guilty verdict. Then, the court will dismiss the charges against you. This releases you from all consequences resulting from the crime you had been convicted of. When granting an expungement, the judge must determine that:
- You have served your probation or sentence,
- Are rehabilitated and
- Granting the expungement is in the interest of justice.
The process to expunge a criminal conviction varies significantly based on the type of offense. Your eligibility to expunge can be based on various factors. These include:
- The period that has elapsed since your conviction
- Whether or not you have successfully served your sentence
- Whether there are any pending charges against you
For example, to qualify for expungement, you must not be accused of any other offense or serving a sentence for any other crime.
Particular criteria define what offenses are expungeable. Generally, almost all crimes are expungeable as long as you have successfully served your sentence. This includes a probation sentence and any necessary rehab programs. Where special laws preventing people from filing an expungement petition do not apply, even felony offenses and strikes qualify.
Expungeable Misdemeanors
Misdemeanors are crimes punishable by a county jail term not exceeding one year and court fines. Standard misdemeanor crimes like petty theft are punishable by a shorter jail sentence. Severe (aggravated or gross) misdemeanors, such as domestic battery, are punishable by a one-year jail term. Misdemeanors are prosecuted before a jury and need legal representation.
Most misdemeanor crimes are expungeable under California statute. This allows convicts to move ahead without the stress of having a record. Prevalent examples of expungeable misdemeanors include the following:
- Drug possession
- Petty theft
- Public intoxication
- Trespassing
- Disturbing the peace
- DUI
- Simple assault
To qualify for a misdemeanor expungement, you must meet the following eligibility requirements:
- Your conviction must have occurred in a California court
- You must have successfully served your jail sentence, including complying with any probation terms.
- You must have paid all court fines, costs, and restitution
- If the judge did not impose a probation sentence, one year must have elapsed since your court conviction
- You must not have any pending charges against you
This eligibility permits you to have a second chance and enhance your general quality of life. You can expunge a misdemeanor offense even before completing your probation sentence. The judge can order an early termination of your probation and grant your expungement request. The judge can also apply their discretion to expunge misdemeanor offenses like DUI.
What If You Violated Probation?
Generally, you must indeed have successfully served your probation sentence and obeyed all conditions for the judge to grant you an expungement. However, even when you have violated probation, there is still hope to expunge. In case of a probation sentence violation, the court holds a special proceeding to establish whether, despite your violation, you are still an ideal candidate.
In this situation, the judge has great discretion to deny or grant an expungement petition. Factors the judge might consider are, without limitation:
- Your criminal record
- The severity of the original conviction
- Your general performance while serving your probation
- Any further evidence that indicates why you deserve an expungement, like
- Strong family and community ties
- Support of your family
- Opportunity to secure suitable employment, et cetera
Expungeable Felonies
Felony crimes are the most severe. At times, felony offenses will involve severe bodily injury to the victims involved. White-collar offenses can also fall under the category of felonies. The trial for felony offenses happens before a jury, and you want an attorney to represent you. The consequences for felony violations include a sentence of more than one year in prison or death. Based on the type of violation, the court could also order you to serve your sentence in jail.
Expunging felony convictions is more intricate. However, California statute does permit the expungement of certain felonies under particular conditions. Generally, nonviolent felony crimes are more likely to qualify for expungement than violent ones. For example, theft crimes or drug-related felonies can be eligible if you have successfully served your sentence, including probation.
Before, a felony conviction was expunged only when a person served the prison term in a county jail or when the felony violation carried a jail term. If someone served a sentence in prison, additional steps had to be required before an expungement was possible. For example, the court would require you to acquire a governor's pardon or Certificate of Rehabilitation before petitioning for expungement.
A Certificate of Rehabilitation confirms you have not violated any other laws after you served your prison term. It is granted seven years from the date your sentence ends and may result in the court restoring your rights. However, it will not lead to the sealing or erasure of your conviction record unless you file a petition and the court approves.
Your attorney could also request that the court lower your felony charges to misdemeanor charges. Lowering felony charges to misdemeanor charges enables restoring more rights after expungement. However, charge reduction is not possible for straight felonies like sexual offenses and those that lead to losing a life (felony manslaughter and murder).
However, recent changes to expungement laws have expanded the eligibility of felony expungement. California lawmakers enacted Senate Bill (SB) 731, which amended PC 1203.4. The bill expanded who qualifies for expungement. Now, the law permits a judge to use discretion to agree to expungement requests for particular felony convictions even when that individual served a prison sentence. Before, the imposition of a prison term would have automatically made an individual unqualified for expungement.
Expressly, per the amendments to 1203.4 PC, as of July 1, 2023, a person can now qualify to expunge particular felony convictions that lead to a prison term. In this case, the court may grant the expungement provided:
- The existing statute does not particularly exclude the felony crime from expungement and
- Not less than two years have elapsed since the individual served their prison term.
However, despite these laws being active, judges are reluctant to grant expungement requests where a person has served a prison sentence unless the person can prove rehabilitation. Thus, if you have served a prison term and seek to expunge your record, you want to consult with an attorney.
Requesting an expungement is much more straightforward when done via an attorney. For example, the court can grant a misdemeanor expungement petition within six to twelve weeks if an attorney helps you. Seeking the help of a lawyer conversant with the California expungement process will assist your expungement request in being granted faster than when you pursue the request alone.
Crimes That Are Not Expungeable
Despite there being room for expungement, particular crimes remain unqualified in California. For people with convictions on or after 1st Jan. 2005, some restrictions are in place on expungements that would have fast-tracked. These people may be unable to expunge if found guilty of particular crimes. Non-expungeable crimes in this case include:
- Felonies categorized as serious PC 1192.7(c),
- Felonies deemed violent under PC 667.5 and
- Felonies requiring sex offender registration under PC 290.
Serious offenses perpetrated against minors are also ineligible for record expungement. Also, you may not expunge your conviction if you are still on parole. Federal convictions do not also qualify for expungement.
Some specific offenses that can never be expunged irrespective of whether an individual served their sentence or complied with probation terms include:
- Particular sexual assault offenses
- Certain child pornography offenses
- Failure to agree to a police inspection of the vehicle
- Robbery
- Lewd acts with a child
- Murder
- Sodomy with a minor
- Oral copulation with a minor
- Statutory rape
- Rape
- Child molestation or molesting or annoying a child
Being unable to expunge a criminal record can significantly affect people seeking to clean their criminal records and reintegrate into society.
What Expunging a Conviction Record Can Do For You
There are several advantages to expunging a record. These include the following:
- Authorities cannot use your expunged conviction to challenge your reliability as a witness before the court. An exception is if you are the accused facing prosecution in the subsequent case
- An employer might not discriminate against your employment application contingent on expunged conviction records
- It is easier to secure a state-issued professional license
- In some situations, expungement helps avoid specific immigration repercussions like deportation
- An expungement should remove barriers to traveling to Canada
What a Conviction Record Expungement Cannot Do
Unluckily, there are many restrictions on what a record expungement can do. A record expungement will, for example, not:
- End the obligation to adhere to the sexual offender registration condition
- Restore firearm rights per PC 29800, a felony with a firearm statute
- Overturn a driver's license revocation or suspension
Also, judges might still use expunged records as past convictions for sentencing enhancement purposes. For example, an expunged drunk-driving conviction will still count as a prior if the police later arrest you for another drunk-driving offense.
Also, an expunged record that would be deemed a strike under the strike law is still considered a strike. Note that you can often restore more rights through a Governor's Pardon or a Certificate of Rehabilitation.
Steps In The Expungement Process
Navigating the expungement process can be a daunting task. However, knowing the steps you must follow can make it less overwhelming. The following is a step-by-step guide to expunging your criminal record.
- Obtaining copies of your conviction record: Your first stage is to look for copies of your criminal record from the courthouse where the conviction occurred. This entails acquiring copies of your arrest record, probation documents, and court docket. Review these records carefully, looking for any incompleteness or inaccuracies, before requesting expungement. Acquiring and reviewing the records can be difficult. You want to seek help from a skilled lawyer.
- Determining qualification: First, check whether your conviction is expungeable. Review the state's expungement statutes and consult an attorney. This is a crucial step, as it will help you understand your options.
- Completing probation requirements: Check that you have fulfilled all probation terms. This includes completing community service and paying fines. The successful serving of a probation sentence is an eligibility requirement.
- Petition filing: Submit an expungement request to the relevant court. This entails completing the required forms and presenting the necessary documentation. A lawyer can assist in ensuring accuracy.
- Serving the expungement petition: Serve your petition to the D.A.’s office. The district attorney needs to review and file a response to your petition. Proper petition service is crucial for moving forward.
- Attending the hearing: The court will set up a proceeding for your request. Prepare to argue your case and respond to questions. Having an attorney by your side can help, as they can advocate for you.
- Awaiting the court’s decision: After the hearing, the judge will review your request and decide. This process might take some time, based on the court schedule. Persistence and patience are key.
- Following up: If the judge grants your petition, follow up to ensure every record is up-to-date to reflect the expungement. That includes informing relevant agencies. Proper follow-up is crucial for a clean record.
Expungement vs. Sealing Records
Most people confuse expunging records with sealing and destroying them. Sealing arrest records under Senate Bill 383 differs entirely from expungement under 1203.4 PC. You have the right to request the sealing and destruction of your arrest record if:
- The police arrested you, but the district attorney never filed formal criminal charges
- The court dismissed the case
- A jury acquitted you after a trial
- The court overturned and dismissed the conviction on appeal
- You completed a diversion program. This includes PC 1000 deferred entry of judgment or proposition 36 drug diversion.
Generally, when you seal and destroy an arrest record, you can state anywhere that you have never been arrested for that offense. That is because to seal an arrest record, the court must first declare you factually innocent.
Find a Skilled Record Expungement Attorney Near Me
A criminal record can, with no doubt, adversely affect your life. Finding employment, secure housing, or obtaining loans may be challenging. That is why you need not hesitate to request an expungement if your conviction is eligible. A skilled expungement law attorney can provide the guidance you need.
At The Los Angeles Criminal Defense Attorney, we can assist you through the expungement process. We have helped clients expunge their conviction records, enabling them to restore their peace of mind and legal rights, and we can do the same for you. We handle every case with the professionalism and confidentiality it deserves. Call us at 310-564-2605 for a consultation or to learn more about expungement and see whether you have a valid assertion to expunge your record.
