Need to clean up your criminal record so you can get a better job? It may be possible, and the forms are probably free.
Many states have a process whereby the court can dismiss an Adult criminal conviction after the case and sentence are over. This “post conviction dismissal” allows the Defendant to legally avoid disclosing the conviction on most private employment applications.
Cha Chingh! No more checking that box? Everyone who qualifies should do it. This article is about that process, and we just updated the details and research for you.
In California, this process of cleaning up your criminal record is called “Expungement”. Many states may have a similar process.
What is an Expungement?
Expungement is a legal process through which a person may get a conviction removed from the court’s files and off of a government published criminal record. It is dismissal by the court after conviction, and after probation ends. Once it happens, the defendant can legally deny that the conviction happened.
|Most states have similar processes, but in California expungements and/or “petitions for certificates of rehabilitation” are controlled by the provisions of California Penal Code section 1203.4. If you have an old misdemeanor conviction, or minor felony conviction, getting the conviction expunged has the same effect as a dismissal.|| |
Generally an Expungement starts with the filing of a document called a “Petition” with the court clerk, and then a court hearing in front of a judge. A judge reviews the petition and can grant the Petition, deny it, or say come back later.
Once an expungement (or Petition for Certificate of Rehabilitation) is approved by the court, a record of conviction is removed form the court’s files, and the defendant can go on with their life as if the conviction never happened.
There are some exceptions, including:
• Disclosure – Granting of the Petition does not relieve you from the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery.
• DMV – Granting of the Petition does not affect Department of Motor Vehicles (DMV) actions or future consequences for crimes involving operation of a motor vehicle.
• Firearms – Granting of the Petition does not permit you to own, possess, or have in your custody or control any firearm if you are prohibited from doing so.
• Sex Registration – Granting of the Petition does not relieve you from any obligation to register under Penal Code §290.
• Sealing – Granting of the Petition does not seal your record, destroy or remove any entries from the court, law enforcement, Department of Justice or DMV. The case, including the conviction will remain public record but it will show a post conviction dismissal if someone pulls the case file. (Source: Orange County Superior Court)
Juvenile offenders must apply separately for “record sealing” – which is a different process.
For people who have lost employment opportunities because of an old conviction, an expungement can be a god send and an economic boost because they no longer have to disclose the expunge conviction on employment applications.
The Official Petition for Expungement Form for California is Judicial Council Form CR-180. If you get the “Petition for Dismissal” in Monterey County Superior, it comes with good instructions.
There are fees for filing a Petition for Dismissal (expungement). You have to contact the Criminal Division Court Clerk at the courthouse where you are filing to get upto date info on teh filing fee.
What kind of cases or convictions can be expunged?
Most misdemeanors and minor felonies qualify (see below). First offense DUI convictions can usually be expunged within 4 years.em>
But to get an expungement granted, the defendant usually must have completed their sentence without trouble, and have completed any term of probation to its end. New convictions do not qualify, nor do convictions where the defendant is still on probation, or still owes fines or jail time. However, in some cases, probation can be terminated early under authority of California Penal Code section 1203.3.
What if You Were Not Placed on Probation? (CA Penal Code sec 1203.4a)
If you were not placed on probation and more than one year has elapsed since the date of pronouncement of judgment, and you did not serve a prison term, you may petition the court to dismiss the charges under authority of California Penal Code section 1203.4(a). To qualify, the court sentence(s) must be completed and you cannot be presently serving a sentence for any offense, or under current criminal charges.
What If You Are Still On Probation?
In some cases, it is possible to get the court to end probation early. We have a related article on the subject, and sell a Self Help form for Motion to Terminate Misdemeanor Probation Early.
With felony convictions, the matter is more complicated, but can be done. If the conviction could have been charged by the prosecutor as a misdemeanor or a felony originally (known as a “wobbler” offense), the felony conviction can be reduced to a misdemeanor through application to the court under authority of Penal Code section 17(b) (“17b motion”).
Once the conviction is reduced to a misdemeanor, the expungement process is used to expunge it as a misdemeanor, rather than a felony.
Expungement petitions can be filed and completed by everyday people. The best way to start is to go to the local law library and ask for the Practice Guide on criminal expungements to get a sample petition that you can use as a template.
However, getting an Attorney to do the work is usually a more efficient option. An attorney can often do the work much faster and more accurately because they have specific training on how to get it done right. And usually, it can be done without the client having to attend a court appearance.
If you have an old conviction you want expunged, and you want me to do it for you in California, request a Free Expungement Review and I will contact you if I can help. I usually charge between $500 and $1200, depending on complexity. I make it easy for you to hire me, and know how to get it done right.
Here is a table to illustrate what can be done in certain situations:
|Conviction Status||Steps to Expungement||Legal Process / Statutes|
|Misdemeanor conviction and probation sill pending.||1) Make a motion to the court for early termination of probation; and |
2) file petition to have conviction dismissed.
|Prepare and file a petition to have probation terminated early under Penal Code section 1203.3, and then file a petition for expungement under Penal Code section 1203.4.|
|Misdemeanor conviction and probation completed.||File petition to have conviction dismissed.||Attorney prepares and files Penal Code section 1203.4 petition for expungement with the court where the conviction exists. The Court then reviews the petition and supporting documents, and makes a ruling.|
|Misdemeanor conviction and no probation at all.||Prepare and file petition to have conviction dismissed with the court where conviction occurred.||Prepare and file PC 1203.4a petition for expungement.|
|Felony conviction and are still on probation.||Step 1: Request early release from probation; and |
2: File petition to have conviction reduced to misdemeanor; and
3: file motion to dismiss the newly created misdemeanor.
|Prepare and file a PC 1203.3 petition to have probation terminated early. Prepare and file a PC 17(b) petition to get felony reduced, and PC 1203.4 petition for expungement.|
|Felony conviction, probation (or county jail time) completed||File petition to have conviction reduced and dismissed.||Attorney drafts and files a PC 17(b) petition to get felony reduced, and PC 1203.4 petition for expungement.|
|Felony conviction with no probation, but sentenced to county jail.||File petition to have felony reduced to a misdemeanor and file petition to have conviction dismissed.||Attorney prepares and files a PC 17(b) petition to get felony reduced, and PC 1203.4a petition for expungement.|
Frequently Asked Questions Re: Expungements and 17(b) Motions:
Can Probation Be Ended Early?
Yes. In California, a defendant may apply for early termination of probation under Penal Code section 1204.3. A motion for early termination of probation is often granted where the defendant have proven substantial compliance with probation terms. The judge has discretion to approve or deny a motion for early termination of probation.
To end California Probation Early, I have created a Motion to Terminate Probation for Self Help use. You can use it as is, or as your guide.
Where Can I Get Expungements Forms?
There is a standardized packet of expungement forms for California created by the Judicial Counsel. They can be found at: http://www.courtinfo.ca.gov/selfhelp/
What If I Had Probation Violations?
Probation violations generally will not prevent an expungement as long as probation was not revoked, and was completed at some point. However, a judge does have the discretion to deny a petition.
How Do I Find Out If My Probation Is Over?
To get information on a criminal conviction and terms of probation, you should contact the criminal division clerk of the court where the conviction occurred. It is usually best to have the case # ready for the clerk.
What Sort of Convictions Qualify For Expungement?
Most misdemeanors and minor felonies qualify. Common convictions that get expunged are Vehicle Code section 14601 (Driving on a suspended license, Vehicle Code section 23152 (DUI), and Penal Code section 242 (assault).
What Is a Penal Code 17(b) Motion? A Motion to Reduce a Felony.
Penal Code section 17(b) is the law that allows a defendant to ask a judge to reduce a felony to a misdemeanor. This is important in the expungement process, because it is usually prudent to get a felony reduced to a misdemeanor prior to asking for expungement.
A Penal Code section 17(b) motion is really a written request from a Defense Attorney or defendant to the court asking for the reduction. A good motion includes the reasons why it is in the “interests of Justice” for the Judge to grant the request. The need for gainful employment is often a good reason to ask. The “17b motion” can be made at any time, even after the felony case is over. Normally it is made prior to conviction, and/or after probation is over.
Orange County Superior Court Instructions for Filing a Petition for Expungement (excellent);
Penal Code section 1203.4(a);
How to Apply for a Pardon or Certificate of Rehabilitation After Prison (Orange County Superior Court Example Instructions);
Judicial Council Form for a Penal Code 1203.4 Petition and Penal Code 17(b) Motion. Proposed Order for Judge to Sign After Granting the Petition.
Final Tip? You can learn a lot by browsing the CA Judicial Council Forms.