California recently introduced a new law that allows people to have their arrest records sealed automatically if they were not convicted of the crime for which they were arrested. Sealed arrest records do not show up in the majority of criminal background checks performed by members of the public.
Having your criminal record sealed or expunged can prove extremely valuable when you apply for work, promotions, loans, housing and other benefits. While the words "criminal record expungement" and "record sealing" are typically used interchangeably, there are some subtle differences that will be impacted by the specifics of your case. Different Penal Codes apply to the different types of cases, which is why it is important to let a Record Expungement Attorney review your case and advise on the best way to clear your record.
Expungement and record sealing have different meanings in different states, however, this article will focus on California.
RECORD CLEARING & EXPUNGEMENT IN CALIFORNIA
You don't have to live with a blemish on your criminal record forever. You can petition the court to dismiss the charges or convictions against you.
If you are granted a full expungement, your criminal record will be wiped clean completely. Any traces of the arrest and the resulting court case will be erased from your public criminal record. Not even judges will be able to access your criminal record after a proper expungement.
Record sealing, on the other hand, will restrict your arrest records from the public, making it available to limited government and law enforcement agencies.
Filing a petition for expungement invites the court to reopen your criminal case in order to reach a dismissal or to set aside your guilty verdict. This option exists both for individuals who plead guilty and those who are found guilty after a trial.
California expungements are governed mainly by Penal Code 1203.4 and if the court grants your expungement, your record will be amended to reflect that your case was dismissed, pursuant to PC 1203.4, rather than convicted. After a dismissal, you will be able to lawfully state that you have not been convicted of a crime in job applications, loan applications and applications for housing. Your expunged conviction will no longer appear in any background checks performed by anyone other than law enforcement.
You will only be eligible for a dismissal or expungement in California if you meet the criteria for PC 1203.4, namely:
- The offense is a matter for state court, rather than federal or military;
- You served no time in state prison for this conviction - you will still be eligible if you served time in county jail;
- Your probation terms for this offense have been successfully completed and you are not serving probation for another offense;
- There are no open criminal cases against you.
It is important to know when is the right time to file for expungement. An experienced Record Expungement Attorney will be able to advise on the right timing. In many cases, your petition for expungement can be filed at the same time as a petition for early termination of probation. However, if you served time in a state prison prior to Proposition 47, you must wait at least two years before filing for expungement under 123.42.
If you have multiple convictions, a Record Expungement Attorney can file each petition for dismissal under California Penal Code 1203.4. Essentially, this petition requests that the court reopens your case and dismiss the charges against you based on factual innocence.
If you were never formally charged for the misdemeanor or felony for which you were arrested, your attorney can petition the court to seal your record pursuant to Senate Bill 393. When your criminal record is sealed, very few agencies will have access to it, which will prevent it from being used against you. Importantly:
- potential employers will not be able to use it to deny you employment;
- your arrest will not be displayed in background checks.
While there is no cut-and-dry answer as to what types of information is displayed on a criminal record, it is important to note that the level of sophistication of an agency will determine what they include in a background check.
Employers that require the highest levels of transparency will typically do more thorough checks. This usually includes:
- jobs in law enforcement,
- jobs that require firearm use,
- high level positions in financial institutions,
- jobs that require motor vehicle use.
The Federal Fair Credit Reporting Act (FCRA) regulates background checks and relays the following information about the types of records that may be included in a background check:
- Non-convictions within less than seven years can be reported on your background check. This includes informal complaints, dismissed cases, not guilty verdicts, diversion programs, and deferred entry of judgments.
- Non-convictions that occurred more than seven years ago should not be included in the majority of background checks.
- Convictions (Scenario 3) can technically be included in your criminal record forever, which is why you should speak to a Record Expungement Attorney to help you petition for expungement.
- If your non-conviction becomes a conviction (Scenario 4) if you are given a diversion program or a deferred entry of judgment and you violate the terms of the sentence. As per Scenario 3, this can also be reported on your record.
- Expunged and sealed records (Scenario 5) will not appear on a standard background check.
CALIFORNIA LAW REGARDING EXPUNGEMENT INFORMATION BY STATE
The following Penal Codes and Assembly Bills apply to criminal records in California:
PC 1203.4 - This code is the foundation of California expungement law, which allows you to petition the court to dismiss your case if you have been convicted of certain infractions, misdemeanors or felonies. It outlines the guidelines and exceptions that determine your eligibility.
PC 1203.3 - If probation forms part of your sentence, you can use this code to request that the court terminates your probation before it is due to expire. This is often necessary in order to petition for expungement since the court will typically not grant expungement while you are on probation. Your attorney can file both the application for early termination of your probation and petition for expungement at the same time, and both can be granted simultaneously.
PC 17(b) - Wobbler cases can be filed as either misdemeanors or felonies, and this code allows you to appeal to the court to reduce your conviction from a felony to a misdemeanor. If a misdemeanor offense is eligible for a reduction, you can file for expungement at the same time.
PC 851.8 and Senate Bill 393 - This new law allows for your record to be destroyed in the event that you were arrested, but a) not charged, b) found innocent in court, or c) have completed a court ordered diversion program.
PC 2852.01 - If you have served time in a state prison, you can use this statute to obtain a certificate of rehabilitation, which can be used to have your record cleared.
Assembly Bill 2585 - Most infractions in California became eligible for PC 1203.4 expungement after Assembly passed this Bill in 2011.
Welfare & Institutions Codes 707(b), 781 and 1772 - Expungement and record sealing of juvenile offenses are governed by these laws.
PC 1210.1 and California Proposition 36 - This law governs substance abuse and crime prevention, and replaces incarceration with drug treatment or probation for a variety of non-violent drug-related offenses. It also makes more drug convictions eligible for expungement.
PC 1000 - Certain drug offenses are eligible for a diversion program under PC 1000 which will eventually lead to dismissal. Expungement will not be necessary, but you should request that your arrest records be sealed under SB 393.
BENEFITS OF EXPUNGEMENT IN CALIFORNIA
Clearing your criminal record is generally a great idea, as it makes it easier to:
- apply for and winning a job;
- be accepted into educational institutions;
- acquire state professional licenses;
- join various organizations;
- enjoy peace of mind.
A lingering arrest or criminal conviction tends to carry with it a stigma that follows you, putting you in a compromising position. However, expungement gives you the opportunity to put it behind you and start over. Many people wait too long to consider expungement. The process can take several months to complete, but you can avoid time sensitive situations by applying sooner rather than later.
If your credit record has been holding you back from achieving your educational or professional goals, it is time to consider having it expunged. Once you have been granted expungement, you can truthfully deny that you have been arrested for or convicted of a crime. You can rest assured that if the organization to which you are applying conducts a background check, your record will be clear, and if the employer finds out about it in the future, they may not by law use it against you.
Criminal record expungement in California opens up a world of opportunities that are otherwise withheld from people who have criminal records. The stigma of a criminal past can hamper your access to career and education opportunities, naturalization and immigration, and the Dream Act.
However, criminal record expungement may not be for you, as there are some limitations.
- Your entire record will not be erased. It will show that the verdict was set aside after trial, or it was dismissed.
- You will still have to disclose your conviction to a number of state licensing boards.
- Some expunged convictions are still considered priorable offenses, which means that a repeat offense can bring your expunged conviction to the fore, resulting in a worse sentence.
- As a convicted felon may not possess a firearm, even if the record has been expunged. However, your attorney may be able to help you reinstate your 2nd Amendment right.
- If the expunged conviction required you to register as a sex offender, you still have to do so.
APPLYING FOR EXPUNGEMENT - STEP-BY-STEP
Step 1 - Determine eligibility: Before you can apply for expungement, you must first evaluate whether you are eligible. You can speak to a Record Expungement Attorney in California about the specifics of your case, including your eligibility for expungement.
Step 2 - Case research: Once your attorney has determined that you are in fact eligible, the attorney will conduct research about your case, and obtain all the legal documents that form part of your case.
Step 3 - Draft a petition: Armed with all the facts regarding your case, your attorney will set out to draft your petitions.
Step 4 - Submit your petition/s: Certain time frames apply to file petitions for expungement or dismissal and the prosecuting agencies have the right to object to the petition if you don't meet the specified time frames.
Step 5 - The hearing: A hearing may be scheduled during which your attorney can answer arguments from the prosecuting attorneys or submit supplemental documents
Step 6 - The decision: The judge will make a decision as to whether the expungement will be granted or denied after the hearing.
If you, a friend or a loved one is being held back by a criminal record, you must get in touch with a Record Expungement Attorney right away. Only a professional who specializes in California expungement law is equipped to advise you on whether you are eligible for expungement and the best way to approach your case. If you are not eligible for expungement, a Record Expungement Attorney might be able to help secure an early termination of your probation or have your felony reduced to a misdemeanor. We could also possibly assist with having your arrest records sealed if the prosecution never filed a case against you.
Your decision to call Record Expungement Attorney in San Bernardino, CA can make all the difference when it comes to passing a background check that will help you advance in your career. Call 909-965-4033 now to schedule a confidential meeting with one of our top attorneys.