California law allows a person who has been convicted of a crime to reopen the case to have that conviction expunged on some occasions. A California expungement is a legal process that petitions the Court to review a conviction to determine if the petitioner is eligible to submit an application to withdraw their plea or finding of guilt, enter a not guilty plea, and order the case dismissed. The decision to grant or deny the petition is at the discretion of the judge and the decision may be opposed by the district attorney’s office.
As a result, your criminal record will no longer show the conviction. However the expungement will continue to appear on your criminal record. It is important to note that the expungement does not clear from your record the fact that you were arrested or that charges were filed.
The expungement law, California Penal Code § 1203.4, is somewhat complex in areas, but expungement of a criminal record is something that should be done by anyone with even a minor criminal history. Contrary to popular belief, records are not cleared automatically with the passage of time.
Following a successful expungement, if a potential employer asks if you have ever been convicted, you can honestly answer “no”. Note that under new CA case law THE EMPLOYER CAN’T BASE EMPLOYMENT ON A CONVICTION (UNLESS THE JOB REQUIRES DRIVING).
A Felony Expungement removes, but does not SEAL, your record. You can’t seal a DMV record which is used more often by employers. Sealing is normally used for a Juvenile case, not adult. The results of criminal cases are often reported to TRW and Experian. You must wait 12 months to expunge if there was no probation granted…or wait until half of the probation term has expired to move for an Early Probation Termination. The 1203 does not affect consumer/employer reporting agencies, and the records they have previously received from the Courts as to arrests and convictions.
With A FELONY CONVICTION, a motion under 17B would be needed to reduce a felony to a misdemeanor, and then a dismissal motion under 1203.4 PC …if the felony was a wobbler. A “wobbler” is a case that could have been filed as a felony or misdemeanor by the DA. This can be done at any time, even years after the conviction. This is a decision that is discretionary with the Judge.
For a Misdemeanor DUI, expungement arguably does little good, other than the driver being able to tell a potential employer he does not have a record …as long as it is not a governmental entity. For law enforcement it will always be there.
The conviction can still be used against you in future arrests and criminal proceedings and by the DMV for purposes of suspending or restricting your license. A successful expungement does not relieve you of any prohibition on the ownership or possession of firearms resulting from the conviction
Suggestions for upcoming columns contact me at (760) 837-7500 or dale@dalegribowlaw.com.
DALE GRIBOW
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