What Is An Expungement And What Does It Do?

May 05th, 2019 | by Scott C. Thomas, Orange County Criminal Law Attorney

Given the economy and today’s job market, more and more people are trying to clean up their criminal records so they can remain competitive, or at the very least, have a shot at landing a job. Heck, even landlords are utilizing background checks to select tenants in today’s crazy rental market. So, what is an expungement & what does it do?

I am often asked if there is any way to “seal” a California conviction and, unfortunately, the short answer is no. However, do not despair as a dismissal under Penal Code §1203.4, often erroneously referred to as an “expungement,” is the next best thing, and, under California law, is the most effective vehicle for “cleaning up” one’s record.

How does a Penal Code §1203.4 dismissal work? Upon receipt of the appropriate paperwork, the court will make a determination if said petition should be granted. If the Penal Code §1203.4 dismissal is granted, the court will vacate the conviction.

What does this mean for the petitioner? Well, for starters, it means that, subject to certain caveats, the petitioner does not have to disclose the prior conviction to any prospective employer, landlord, etc. Given that prospective employers conducting a background check will be able to see that there was, at one time, a conviction that was subsequently dismissed, they are barred from asking about it pursuant to California Labor Code §432.7(a).

As I mentioned earlier, there are some exceptions to a petitioner’s right to nondisclosure of a prior conviction that is dismissed, pursuant to Penal Code §1203.4. What are these exceptions? As Penal Code §1203.4 states, once a dismissal is granted, “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 Commission.” Thus, unless the petitioner falls into one of the specifically itemized categories listed above, he or she need not disclose a dismissed conviction, and prospective employers are statutorily barred from inquiring about it.

Who is eligible for a Penal Code §1203.4 dismissal?

  • Anyone convicted of a misdemeanor or felony who has completed the prescribed period of probation.
  • Anyone convicted of a misdemeanor or felony who is currently on probation. In order to be eligible for the Penal Code §1203.4 dismissal, the petitioner must first motion for the court to terminate probation early. As a rule of thumb, courts are reluctant to grant motions for early termination of probation unless the majority of the probationary period has expired. For example, if the petitioner is placed on three years’ probation, courts like to see that at least two years of the probationary period have been served.
  • Anyone who is convicted of a misdemeanor or felony who is not placed on probation can petition the court for a Penal Code §1203.4 dismissal one year from the date of conviction.

Who is not eligible for a Penal Code §1203.4 dismissal?

  • If you currently have criminal charges pending against you or are on a grant of probation related to a different case.
  • Anyone convicted of a misdemeanor or felony who has not paid off the fines and/or restitution ordered by the court.
  • If you were convicted of a felony and sentenced to state prison.
  • Anyone convicted of violating Vehicle Code sections 2800, 2801, 2803, or 42001(b), or Penal Code sections 261.5(d), 286(c), 288, 288a(c), 288.5, or 289(j), as these violations are nondismissible.

*It should also be noted that anyone seeking a dismissal, on a case where they violated their grant of probation, will be at the mercy of the court’s discretion.

A couple of quick closing thoughts: anyone whose conviction requires them to register as a sex offender, or which prohibits them from owning a firearm, or from driving, will still be subject to those requirements/prohibitions. Further, despite a dismissal, if the petitioner picks up a new case, the old case, which was dismissed, can still be used to increase punishment on the new case, or can be used as a priorable offense.

I hope that this post is helpful to you all, and if you have any questions, comments or concerns, please feel free to call me at 949-945-2085, or email me at SThomas@ScottCThomasLaw.com.

Scott C. Thomas

Law Office of Scott C. Thomas
(949) 945-2085

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