Expungement 101

Written by Attorney Darren T. Kavinoky

Expungement of criminal records (either arrest or conviction) is of critical concern to anyone with a prior conviction, or contemplating a guilty or no contest plea to a current offense. Expungement is a term that means different things in different jurisdictions; generally, it refers to the cleansing of one's criminal record, or the sealing and destruction of arrest and/or conviction information.

Because the law and types of relief vary from state to state, it is important to consult with a lawyer in the state where the conviction occurred. Expungement, when properly done, can remove hurdles to gainful employment, professional licenses, and bring closure and emotional relief. Therefore, it is essential that one who is interested in an expungement contact a lawyer that understands the types of relief available, and how to obtain them.

This article will focus on the relief available in California courts. Please consult an expungement attorney in the jurisdiction where convicted for specific advice and direction.

This article deals primarily with misdemeanor expungements; more information about expunging felony convictions, certificate of rehabilitation & pardon.
 

What relief is available?

Expungement can take many forms. The relief available will depend on the type of conviction (misdemeanor, felony, or "wobbler"), the type of sentence received (probation with or without jail time, state prison), the age of the offender (juvenile or adult), and whether a claim for factual innocence can be made out.

California criminal offenses are defined by the type of punishment that can be imposed. Misdemeanors are offenses that are punishable by a fine, and/or up to one year in county jail. Felonies are punishable by a fine, and by custody in state prison. Wobblers are cases that can be punished by either up to one year in county jail, or by imprisonment in state prison.

The most common type of expungement relief available in California is authorized by California Penal Code Section 1203.4. This section provides, in pertinent part, that:

In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any new offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted.

The order shall state, and the probationer shall be informed, that the order does not relieve him or her of 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.

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Technically, the expungement under 1203.4 is not an eraser of one's criminal record. What is really happening is set out in the statute: the plea of guilty or no contest is being withdrawn and a plea of not guilty is being entered, or, if there was a trial, the verdict of guilty is being set aside. In either case, the court is thereafter dismissing the charging document.

As noted in the statute, the probationer is, thereafter, "released from all penalties and disabilities resulting from the offense of which he or she has been convicted," with certain exceptions.

There is a split of opinion among those in the legal community about exactly what this means for those applying for a job and confronted with the question "have you ever been convicted of a crime?" Since the statute says "released from all penalties and disabilities," subject only to those exceptions specifically set forth in the statute, this author believes that the better reasoned view is that the legislature meant what it said, that "all penalties and disabilities" means just that, and if the legislature intended to say otherwise, they would have said so. Therefore, once an order for relief pursuant to 1203.4 has been granted, the former-probationer can lawfully state that they have not been convicted of the crime when asked on a job application from a private (non-law enforcement) employer.

Those exceptions, where disclosure is required, are set out in the statute: "the order does not relieve him or her of 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."

This means that if applying for public office, seeking any license from the state (real estate, stock broker, doctor, lawyer, etc.), or contracting with the California State Lottery, the conviction must be disclosed (although it can be disclosed as an expunged conviction).

It is worth noting that applications to become a Peace Officer, while not mentioned in the statute, typically require disclosure of expunged convictions.

It is also worth noting that in this day and age of computers, internet, and the free-flow of information, that a carefully worded disclosure may be the best way to proceed, even if disclosure is not required under the statute. I work with my clients on an individual basis to make sure that such a disclosure is crafted in the event it is needed.

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 Prior convictions: there are certain crimes that are "priorable", meaning that if arrested for a similar crime in the future, the punishment may be enhanced. For example, petty theft is a misdemeanor. However, petty theft with a prior theft conviction is a wobbler, meaning it may be punished as a felony or misdemeanor. If someone is arrested for petty theft with a prior, and the prior was expunged, the fact of the expungement will not save the person from being charged as a felony.

 Prior DUI convictions: 1203.4 specifically states that expungement will not have any impact on the use of a DUI conviction as a prior. This means that if DUI conviction number 1 is expunged, and the person is arrested for DUI number 2 (within seven years), it will be prosecuted as a second-offense DUI, with all the enhanced punishments and penalties, regardless of the expungement of DUI number 1.

 Gun ownership: There are certain offenses for which probation may be granted (the first critical inquiry for expungement eligibility) that prevent that person from lawful gun ownership for a specified period of time. An expungement will not restore those gun ownership privileges.

 Sex Offender registration: There are also certain offenses where probation may be granted (the first critical inquiry for expungement eligibility) that require lifetime registration as a sex offender.

The expungement pursuant to California Penal Code Section 1203.4 does not provide as much relief as most desire. It does not act as an "eraser" of criminal records. It does, however, have many benefits, chiefly in the area of job applications in the private sector. However, there is an emotional component as well: for those that have suffered misdemeanor convictions, and have learned their lesson, obtaining an expungement provides a lifting of the psychic baggage that many probationers have carried for a long, long time. As to them, expungement is a priceless commodity.

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