EXPUNGEMENTS/PARDONS

What you should know about your criminal record and the expungement process:

In California, section 432.7 of the Labor Code, states "No employer, ..., shall ask an applicant for employment to disclose, ..., information concerning an arrest or detention that did not result in conviction, or information concerning a referral to, and participation in, any ... diversion program, nor shall any employer seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including hiring, promotion, termination, ..., any record of arrest or detention that did not result in conviction, .... Nothing in this section shall prevent an employer from asking an employee or applicant for employment about an arrest for which the employee or applicant is out on bail or on his or her own recognizance pending trial...."

So, for the purposes of this guide, we will concern ourselves with "convictions."

Find Out the Details of Your Convictions

In order to begin cleaning up your criminal record, you first need to know what is on your criminal record. The court will require you to fill out forms. Whether you are requesting a dismissal or a Certificate of Rehabilitation, you will need to know the details of your convictions(s) in order to complete the forms. Also, certain details will affect whether you are eligible. There are several details you will need to know in order to accomplish your goals:

1. Your Case Number(s) [Sometimes called docket number.]
2. Your Date(s) of Conviction(s) [The date of your plea or verdict.]
3. The Code Name(s) and Section Number(s) you were convicted of violating.
4. Was there a "Verdict" or did you "Enter a Plea"? If you Entered a Plea, was it "Guilty" or "Nolo Contendere" (No Contest)?
5. Were you ordered to serve any time on "Probation"? If so, how long? [Formal and informal probation are treated the same.]
6. Were you ordered to pay any "Fines," "Restitution," or "Reimbursement"?
7. If you were sentenced to state prison, which one?
8. If you were sentenced to state prison, what date were you released?
9. If you were released on "Parole," what date did your parole end?

What You Can Do

Dismissals

If you were convicted of a misdemeanor or a felony and were not sentenced to state prison or under the authority of the California Department of Corrections you can petition for a dismissal. This means you were given county jail time, probation, a fine, or a combination of those three. If you are petitioning for a dismissal, the court upon proper motion, may withdraw your guilty or nolo contendere (no contest) plea, or verdict of guilt if you went to trial, and enter a not guilty plea. Then the court will set aside and dismiss the conviction. From that point forward, you are considered no longer convicted of the offense. Your record will be changed to show a dismissal rather than a conviction.

Are You Eligible for a Dismissal?

1. If you were given probation, you have either completed it or obtained early release. If you violated your probation and it was either reinstated or revoked, then the court has discretion whether or not to grant you a dismissal.
2. If you were not given probation, it has been at least one year since the date of conviction.
3. You have paid all fines, restitution and reimbursement ordered by the court as part of your sentence.
4. You are not currently under arraignment for a new criminal offense (charges pending), nor are you on probation for another offense.

Some Convictions are Not Eligible for Dismissal

If you were convicted of any of the following offenses you are not eligible for a dismissal: Vehicle Code Section 42001(b) which includes sections 2800, 2801 and 2803; Penal Code Section 261.5(d), 286(c), 288, 288a(c), 288.5 and 289(j).

Diversion

If you were referred to a "diversion" program, you record will already be changed in one of two ways. If you successfully completed all of the diversion program requirements, your record should already be changed to show a dismissal. If you didn't complete your requirements or were not actually given diversion, then the conviction will be on your record.

Marijuana Possession Offenses

If you were convicted of possession of marijuana for personal use then you do not necessarily need to get a dismissal for the offense. Under California Health and Safety Code Sections 11361.5 and 11361.7 all possession of marijuana for personal use convictions, after January 1, 1976, are erased from your record after two years. BE CAREFUL! The conviction cannot be for cultivation, sales or transportation. If it is, it will be on your record.

Juvenile Records

Your Juvenile records do appear on your criminal record. Upon your 18 th birthday, you are eligible to petition to have your juvenile records sealed. Once sealed, no one can gain access to them and they will be completely destroyed five years from the date of sealing.

Juvenile records are not automatically sealed upon your 18 th birthday. You must affirmatively petition the juvenile court to have them sealed. You can do this by filing out a form and filing it with the juvenile court in the county in which you were convicted. Contact the juvenile court in the county you were convicted, and ask them to send you a copy of the form used in that county. Check to see if they have any special filing requirements such as additional photocopies or the need to serve copies of the petition on any government agencies, and get the correct information for filing by mail. Usually, there is no fee.

If you graduated from the Department of Corrections and Rehabilitation, Division of Juvenile Justice, your juvenile conviction(s) will have been dismissed as part of your graduation. If you do not petition to have your juvenile records sealed and destroyed, they will remain on your record until your 38 th birthday, then they will be destroyed.

What Will a Dismissal Do?

Once all of your convictions have been dismissed:

1. On questions by Private Employers if you are asked if you have every been convicted of a crime, you must respond with "YES-CONVICTION DISMISSED."
2. On questions by Government Employers or Government Licensing Applications if you are asked if you have ever been convicted of a crime, you MUST respond with "YES-CONVICTION DISMISSED." In California, government employers and licensing agencies (except for police agencies and concessionaire licensing boards), will treat you the same as if you had never been convicted of any crime.
3. You will not be allowed to own or possess a firearm until you would otherwise be able to do so.
4. Your dismissed conviction(s) can still be used to increase your punishment in future criminal cases.
5. Your prior conviction(s) can still affect your driving privileges.
6. If you have been required to register as a sex offender as a result of a conviction, you have to make a different motion to the court in order to be relieved of this requirement. A dismissal will not relieve you of your duty to register as a sex offender.

Finally, meet with your attorney as soon as possible. When you meet with Mr. McDonald, be completely honest with your version of events. Tell us about any past criminal record or witness that might help or hurt your case. Remember that you are the most important part of your defense team.

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