Expungements

If you have a criminal record, it may be very difficult to find a job or obtain other benefits that a criminal record hurts your chances of receiving. Potential employers can ask about your criminal background on applications and in interviews, and worse, they can conduct a search online and find your criminal records in moments.
Fortunately, it may be possible to have your criminal record expunged, preventing employers from seeing your criminal history, asking you about it, and using it against you in hiring decisions. The attorneys at McDowell Defense are skilled and experienced in having clients’ criminal records expunged. If you have a criminal record that is making it difficult to find employment, contact us today at (213) 401-2322 for a free consultation with one of our attorneys, and find out how we can help you to expunge your criminal record.

Expungement Relief
California Penal Code section 1203.4 (PC 1203.4) provides relief to defendants who have “fulfilled the conditions of probation for the entire period of probation, or [have] 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,” and allow such defendants to be “released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code.”
The key language in this portion of PC 1203.4 is that the defendant may be “released from all penalties and disabilities resulting from the offense of which he or she has been convicted.” This allows a qualifying defendant to have a clean record and a fresh start, removing the difficulties that have resulted from a checkered past.

Qualified Expungement Candidates
In order to qualify for an expungement from a conviction in California, the defendant must have:

Successfully completed probation, and
Not currently face criminal charges, currently be on probation for a criminal offense, or currently be serving a sentence for a criminal offense.

A defendant who was sent to California State Prison, either at the time of sentencing or for a probation violation, does not qualify for an expungement.

Successful Completion of Probation
Successful completion of probation means that the defendant:
Completed all terms of his/her probation,
Attended all required court appearances, either personally or through his/her attorney, and
Did not commit any new crimes while on probation.

Non-Qualified for Expungement
As stated above, anyone sentenced to California State Prison is not qualified for expungement. Additionally, serious sex offenses against children cannot be expunged. These include:
Sodomy with a child under PC 286(c)
Lewd Acts with a child under PC 288
Oral copulation with a child under PC 288a(c)
Statutory rape under PC 261.5(d), which prohibits sexual intercourse between persons who are 21 years or older and persons under 16

Probation Violations and Expungement
To qualify for expungement, a defendant must have successfully completed all requirements of probation. If s/he violated your probation, however, you still may be able to qualify for an expungement.
If a defendant does have a probation violation, the court will hold a special hearing to determine whether or not s/he is still qualified for an expungement.
During one of these special hearings, the judge will look to different factors to decide whether to grant or deny expungement. These factors include:
Defendant’s overall performance while on probation
The seriousness of the underlying conviction
Defendant’s criminal history
Any additional evidence the defendant can provide to demonstrate why s/he is deserving of relief, such as:
Defendant’s opportunity to obtain a good job
The fact that the defendant supports his/her family
The fact that the defendant has strong community ties, etc.

What an Expungement Can Do for You
If you have a prior criminal conviction in California for which you qualify for expungement, obtaining an expungement can provide several important benefits. These include:
Helping you to secure employment
Helping you to obtain a state professional license
Preventing any expunged prior convictions from being used to impeach your credibility as a witness in court (unless you are a defendant facing criminal charges)
Possibly preventing certain immigration consequences, such as deportation

Expungement and Employment

Under California law, an employer may not:
Discriminate against you for being involved in an arrest that did not result in conviction
Ask about an arrest that did not result in a conviction
Discriminate against you based on expunged convictions

What Expungement Will Not Do for You
Expungements are limited in what they can actually do for you. Some things an expungement cannot do include:

Overturning a driver’s license suspension or revocation
Restoring your California gun rights under PC 29800, California’s Felon with a Firearm law
Ending your duty to register as a sex offender under PC 290

Additionally, a conviction that has been expunged may still be used to enhance sentencing in a conviction of a subsequent offense.
There are other ways you may be able to obtain relief for these issues, however. These avenues include California Certificate of Rehabilitation or a California Governor’s Pardon.

When You Can Apply for an Expungement
As long as you meet the other eligibility requirements, you may petition the court for expungement as soon as you complete all requirements of your probation and/or the court terminates your probation early.
Your attorney may be able to package several motions together along with the motion for expungement, which may expedite the expungement process. For example, your attorney may be able to file a motion for early termination of probation at the same time as a motion for expungement of the same offense.

Sealing and Destroying Records
Sealing and Destroying records is a different process than expungement. Certain adult and juvenile criminal records may be sealed and destroyed if they meet the requirements for sealing and destroying. A defendant may be able to have his/her arrest records if he/she:

Was arrested, but the prosecutor never filed criminal charges,
Had his/her case dismissed in court, or
Was acquitted by a jury following a jury trial.

If a defendant is able to have his/her arrest record sealed, s/he can honestly state s/he has never been arrested.
Juvenile court records may also be sealed and destroyed. In order to be able to have juvenile records sealed and destroyed, a person with such juvenile record must meet the following criteria:

S/he is currently an adult, or the jurisdiction of the juvenile court terminated at least five years ago,
As an adult, s/he has not been convicted of any crimes involving dishonesty or immoral behavior (crime of moral turpitude), and
There is no pending civil litigation based on the juvenile incident.

If a judge orders a record sealed and destroyed, the record is sealed for three years, then destroyed.