Expungements / Record Clearances

How to Clean Up Your Conviction

Disclaimer: This guide is intended as general information only. Your situation may have factors requiring different procedures or forms.

 

BACKGROUND

Expungement is a method for cleaning up your criminal record.  This procedure reopens your criminal case, dismisses the conviction, and re-closes the case without a conviction. In effect, you are no longer a convicted person. However, the case record itself will still exist, and the expungement will appear on your record. 

Not all convictions can be dismissed. Expungement is limited to cases in which the defendant was sentenced to county jail time, probation, a fine, or a combination of those three. Additionally, the Penal Codes permitting expungment of criminal records expressly prohibit certain types of convictions from being dismissed. Most of these exceptions involve serious vehicle code violations (those that result in two or more points on your driving record) or sexual offenses against minors.

 

There are three types of expungement: 

  1. The first, governed by Penal Code § 1203.4, will expunge cases in which probation was part of the sentence. 
  2. The second, under Penal Code § 1203.4a, will expunge cases in which there was no probation. 
  3. The third, under Penal Code § 17, will reduce a felony conviction to a misdemeanor. This misdemeanor can then be dismissed. Felonies meeting the criteria under Penal Code § 17 are often called "wobblers," meaning they could be charged as either a felony or misdemeanor.

If you received state prison as your sentence, you will need to file paperwork for a Certificate of Rehabilitation, rather than a Petition and Order for Dismissal.   

Although your conviction may be dismissed, restrictions resulting from the conviction cannot.

 

An expungement does not: 

  • Remove the conviction from your criminal history. California and FBI criminal history records will still show the conviction and the subsequent dismissal.
  • Seal the court case file from public inspection. The court file remains public record.
  • Reinstate your right to possess firearms. In some cases, reduction of a non-violent felony to a misdemeanor may accomplish this. 
  • Relieve you of your duty to register as a sex offender. In some cases, this may be accomplished by a different motion to the court.
  • Allow you to omit the conviction from applications for government-issued licenses. You must disclose your conviction and expungement in your license application.
  • Allow you to omit the conviction from application for government employment.  If you are applying for a government job, a job that requires security clearance, or a job that requires a government-issued license, certificate, or permit, you must disclose the conviction and expungement.
  • Allow you to hold public office, if the conviction prevented you from doing so.
  • Prevent the conviction from being used to refuse or revoke a government license or permit, such as real estate license, teaching credential, security guard certificate, etc. 
  • Prevent the conviction from being used as a "prior." The dismissed conviction can be used for determining sentencing enhancements in subsequent convictions.
  • Prevent the conviction from being used by the DMV. Expunged convictions may be used to suspend or revoke driving privileges. 
  • Prevent the conviction from being used by US Citizenship and Immigration Services. In many situations, an expunged conviction may be considered for removal or exclusion purposes. 

For most people, the benefits of an expungement far outweigh these restrictions.  Under California Labor Code § 432.7, employers cannot ask about arrests that did not end in conviction, or about any diversion or similar programs. If the employer is aware of any such arrests or programs, they cannot use this information to make hiring, promotion, or firing decisions.

Once a conviction is expunged, it becomes an arrest that did not end in conviction. Legally, you may answer "No" to these types of questions when applying with a private employer. Keep in mind, though, that background checks typically go back 10 years, and employers can see that you had a conviction dismissed. Answering "No" may look dishonest. A better response may be "Yes, expungement granted." When applying for government employment, you must disclose the conviction and expungement.

 

Am I elegible to get an expungement?

  • Your conviction must meet the guidelines described in Penal Code § 1203.4Penal Code § 1203.4a or Penal Code § 17. These code sections provide very specific guidelines about qualifying charges and sentences. Be sure to read those code sections carefully, because there are many exceptions.
  • At least one year must have passed since your conviction.
  • You must have completed the terms of your sentence. In most situations, the court will not grant an expungement until your sentence is complete. This means you have completed your period of incarceration and/or probation, and paid all fines, fees, and restitution in full. You must also appear at all DMV hearings, and pay all DMV fines and fees for traffic offenses.   

If you are still on probation for conviction, you may ask the court to terminate your probation early. 

  • You cannot be serving a sentence for any offense, or be charged with the commission of any other offense.  If you are still on probation for another offense, you will need to complete the terms of that sentence, or have that probation terminated prior to petitioning for an expungement.
  • You must not have received another conviction within one year of the first.
  • Your probation for the conviction you're trying to expunge must not have been revoked, and not reinstated.

Determine which Type of Expungement Applies to Your Situation
As mentioned above, there are three types of expungement available. The type you use depends on the original conviction and sentence.  The information below will help you determine which type of expungement is right for you.

a)    Misdemeanor Convictions

  • Probation ordered and completed
    File a Petition for Dismissal under Penal Code § 1203.4.
  • Probation ordered, but not yet completed
    File a Motion to Terminate Probation  If that is granted, file a Petition for Dismissal under Penal Code § 1203.4.
  • Probation not ordered
    File a Petition for Dismissal under Penal Code § 1203.4a.

b)   Felony Convictions

  • County Jail and/or Probation ordered and completed
    File a Petition under Penal Code § 17(b)(3) to reduce the felony to a misdemeanor, and Petition for Dismissal under Penal Code § 1203.4 to expunge the misdemeanor.
  • Probation ordered, but not yet completed
    File a Motion to Terminate Probation.  If that is granted, file a Petition under Penal Code § 17(b) to reduce the felony to a misdemeanor, and Petition for Dismissal under Penal Code § 1203.4 to expunge the misdemeanor.
  • State Prison was ordered
    If you were sentenced to State Prison, you are not eligible for the procedures described here. Instead, you will need to apply for a Certificate of Rehabilitation and/or a Pardon.                                                                                           

You will need a copy of your criminal record or case information for each conviction you with to expunge. Your criminal record or case history includes information essential to filling out the expungement papers. If you have hired our office we obtain these records for you.

  • Adding additional information about yourself.

It is often a good idea to attach a declaration stating why you want the expungement and explaining your situation in life. In this declaration, you may want to discuss:

  • Your plans for the future;
  • The reasons you offended, and how your life is different today than it was when you offended;
  • How the conviction has hurt your employment chances;
  • If you have received any training or education since your conviction;
  • Any occurrence in your life that changed how you interact with your community; and
  • Any 12-step or religious affiliations you have.

All declarations submitted to the court must contain the words "I declare under penalty of perjury under the laws of the state of California that the foregoing is true and correct." 

Letters from employers, clergy, or other community members can be convincing, but should not be attached to your petition. 

If you have changed your name since your conviction, fill out the forms with the name under which you were convicted. Sign the forms with your current name.

You will need to complete a separate Petition and Order for each conviction you wish to expunge.


Expungement forms are filed in the county where you were convicted. 

There is a fee for processing your Petition. Penal Code § 1203.4 sets the maximum fee for probation cases where probation was ordered at $150. Penal Code § 1203.4a sets the maximum fee for convictions without probation at $60. 

 

Serve Your Forms
Service is a formal way of giving copies of court documents to all parties in a case.  In an expungement proceeding, the District Attorney and Probation Department must be served. 

 

Attend Your Court Hearing, if Required
For many people, no court hearing will be scheduled. Instead, the petition is automatically granted as long as you have met all the requirements.  On your petition, the clerk will indicate the date by which the court will make a ruling.

 

If Your Petition is Denied
If you attend the hearing, you may ask the judge what you can do to get your conviction expunged. You may re-file your petition for expungement in 3-6 months, after you've made the changes recommended by the judge. Note: Our office will file it a second time for you for free if your expungement is denied for any reason.


 

Do you have questions or do you want to make an appointment in this area?

Call us at +1 408-627-9248 or use our contact form.