Post Conviction Expungements and Sealing of Records

Criminal records are public information that can be accessed by potential employers and licensing agencies. It is, however, relatively easy to expunge your California criminal record. Once a felony or misdemeanor conviction is expunged from your record, a prospective employer or licensing agency is barred from using that conviction against you.

 

You can expunge a misdemeanor or felony from you criminal record if you:

 

Successfully completed probation or obtained an early termination of probation

You are not currently charged with a criminal offense

You are not on probation for a criminal offense,

You are not serving a sentence for a criminal offense, and

You did not serve time in state prison for the underlying conviction

You cannot expunge your conviction if any of the above conditions are not met. Additionally, certain criminal offenses in California cannot be expunged. These offenses include:

 

Penal Code Section 286(c ), sodomy with a child

Penal Code Section 288, lewd acts with a child

Penal Code Section 288(a), oral copulation with a child

Penal Code Section 261.5(d), sexual intercourse between persons who are 21 years and older with persons younger than 16

If you completed your probation without a violation, you qualify for expungement of your California criminal record. If you committed an offense while on probation, the court has discretion as to whether to grant or deny your petition for expungement. In exercising this discretion, the judge may consider your criminal history, your overall performance while on probation, the seriousness of the underlying conviction, your opportunity to obtain a good job, and your ties to the community.

 

If you meet the other eligibility requirements outlined above, you may petition for an expungement as soon as you have completed probation or as soon as you have been granted early termination of probation. Your attorney can start the expungement process by packaging several motions into one petition. These motions include motion for early termination of probation, motion to reduce the underlying felony to a misdemeanor, and motion to expunge your conviction.

 

The most significant benefit of expungement is that it helps you secure employment and/or obtain a state professional license. In California, an employer or licensing agency may not discriminate against you on the basis of any expunged convictions or arrests that did not result in convictions. Nor can a California employer or licensing agency inquire about such convictions and arrests.

 

If you pled guilty to or were convicted of an offense, an expungement gives you the right to tell a prospective employer or licensing board that your conviction was "dismissed." The word "dismissed" carries a very specific meaning. It does not mean that your conviction was erased or that you can claim you were never convicted. Assume, for example, that a job or licensing board application asks you the following: "Have you ever been convicted of a felony?" An expungement does not give you the right to answer "no" to this question. You must answer "yes" because you were convicted of a felony; it was only later that this felony was expunged. Assume that the question instead is, "Are you convicted of a felony?" You can answer "no" to this question because your expunged felony is a dismissed conviction and you are not presently convicted of that felony.

 

Consult an attorney if you are not sure how to answer a job application question that inquires about your criminal history. Never place false information on your job application. Your prospective employer or licensing board will likely investigate whether you are telling the truth.

 

Other forms of relief that an expungement can offer include restoring your right to vote from certain convictions that deny you that right, giving you immunity impeachment from subsequent actions, and helping you avoid certain immigration consequences such as deportation.

 

An expungement does not overturn a driver's license suspension or revocation, restore your California gun rights under Penal Code Section 12021, or end your duty to register as a sex offender under California Penal Code Section 290. In addition, an expunged conviction may still be used to enhance sentencing and as a "strike" for purposes of California's Three-Strikes Law.

 

Sealing and destroying your criminal record allows you to state in honesty that you have never been arrested for or convicted of a crime. You are entitled to this relief if:

 

are currently an adult, or the jurisdiction of the juvenile court terminated at least five years ago,

as an adult, you have not been convicted of any crimes of moral turpitude—i..e., a crime involving dishonesty or immoral behavior, AND

There is no pending civil litigation based on the juvenile incident.

If the judge grants your motion to seal, the arrest record is sealed for three years and destroyed thereafter.