When a defendant faces a criminal conviction, he/she may have a chance to seek relief from the long-term consequences of the conviction through a process commonly referred to as “expungement,” relief under PC §1203.4. Typically, most defendants who commit offenses that do not fall in the severe crime category can petition for an expungement of criminal records, as it comes with several advantages. In many respects, being legally able to say that the case was dismissed creates a clean[er] slate after conviction to help you get back on your feet and on to a wide-open future.
Determining whether you are eligible, then petitioning (making the motion) and properly filing for relief under PC §1203.4, commonly referred to as “expungement,” can be very confusing and incredibly time-consuming for someone who is unfamiliar with the process.
The safest, surest way through the PC §1203.4 relief process is to get the help of an attorney who is familiar with record “expungement” to guide you every step of the way. At Clear My Records, we provide all the legal services you need in California to seek “expungement” relief under Penal Code §1203.4. We are happy to handle the entire process for you; you should not have to lift a finger. We will determine eligibility, conduct the relevant research on your behalf, draft, serve and file the petition, and argue on your behalf at the hearing.
Understanding “Expungement” in California
Usually, most people think of expungement as a process to erase any previous criminal records altogether. Unfortunately, that is not the reality in California. Under Section 1203.4 of the California Penal Code, what most people call an “expungement,” a defendant can file a petition asking the Court to set aside a previous plea of "guilty" or "no contest" to replace it with a plea of "not guilty" followed by the Court’s dismissal of the case.
Once granted, it becomes legally true for the defendant to answer “NO” when asked by a private employer whether he or she was ever arrested or convicted on the charge that was dismissed. Furthermore, when employers or other agencies perform background checks, the case may show, but will show as having been dismissed.
It’s true, memories fade, but the scars still linger. The record doesn’t go away. However, in the optics-driven world in which we all live, a case dismissed looks much better than a conviction when applying for that new job or promotion, university or trade school admission, a home loan, a professional license, or even an apartment to rent. Saying that the past is behind you is most effective when you can show that you have complied with the terms of probation, paid your fines, completed your classes and programs, and avoided any subsequent legal entanglements – that is what relief under PC 1203.4 shows.
The Process of Obtaining an Expungement
Securing relief under PC §1203.4 requires that your lawyer carefully follow and strictly comply with several procedural and legal requirements. Your lawyer will – with your help – gather and analyze all of the necessary documentation in support of the petition. He or she will make sure that the petition is thoroughly completed, accurate, and inclusive of everything necessary and available to win!
In cases where the court wants to hear arguments from both sides (defense and prosecution) before determining whether to grant relief under PC §1203.4, it is critical that both the defendant and lawyer are fully prepared.
The following are essential steps to take in preparation for your hearing:
Conduct a Proper Analysis of Your Past Conviction
Where there is a question about whether relief under PC §1203.4 is appropriate, your lawyer – and you – will comb through the case; look closely at the facts, circumstances, and conduct. As necessary, your lawyer will confirm that you fully complied with the terms of probation, completed all of the classes and programs ordered by the court, and paid all of the fines, fees, and restitution on time. If there were any hiccups during probation, he or she will help smooth them out and make them presentable. Together, you will chronical life after the conviction in order to create the most favorable image.
Researching on California Law Related to Expungement
Knowing what sections of the law to refer to when applying for expungement is crucial in obtaining the relief. Because every case is different, your lawyer will conduct thorough research on the current laws, rules, and regulations that may benefit – or harm – your case. As it is in life, in the law, knowledge is power, and we endeavor to use the power of information to help you.
Filing all Documents on Time
Once your attorney is satisfied that the petition is ready to be filed, he or she will properly serve the prosecuting agency and then file the petition with the court. While some courts schedule a hearing date right there and then, others only set hearings upon the court or prosecution’s request. In either event, your lawyer will be notified in time to adequately prepare.
The “Expungement” Hearing
While a properly prepared and filed petition for an eligible defendant is usually granted without a hearing, some cases are a little more complicated and a court hearing is required.
At the hearing, the judge will review the petition and supplemental material, and then hear argument from both the prosecution and defense. In some cases, the defendant may make a statement or answer questions. Your lawyer will prepare you for those. If, after the hearing, the judge believes that good cause exists to grant the motion, the relief will be granted. Otherwise, the petition may be denied, and you will have to recraft and refile for relief at a future date. The court will specify the reason for the denial, and you will have an opportunity to remedy whatever deficiencies the court found. The most common remedies are additional time from the conviction and additional acts of contrition.
In granting the petition, the judge will order the following:
The verdict of "guilty" or “no contest” is withdrawn
A plea of “not-guilty” is entered on behalf of the defendant
Case dismissed pursuant to PC §1203.4
Indeed, the odds of success are good when a skilled lawyer is at the helm, however success is never guaranteed because every court is different, and every judge is human. Planning, preparation, and patience are necessary at every step.
Factors a Judge will Consider Considers Before Granting Expungement Orders
Judges and bench officers tend to analyze PC §1203.4 petitions carefully. They will weigh the interest of the defendant for sure, but also those of the general public and any victim of the underlying offense. It is a responsibility they do not take lightly.
Some of the factors in the judge's consideration are:
The Severity of the Convicted Offense
Clearly, some crimes, just by their nature, do not qualify for relief under PC §1203.4. Murder, rape, robbery, etc. These are crimes for which relief will not be granted under this statute. Relief is really intended for much “less significant” offenses, such as petty theft, drunk in public, DUI, and many drug-related crimes. In these cases, the judge will look a little deeper to see whether any other person was physically harmed or suffered some long-term adverse effect. In DUI cases, the judge might consider the blood alcohol level or circumstances of the stop itself as well as the defendant’s conduct on the scene. While not, by themselves, dispositive, they can be considered.
A Successful Completion of Probation
Did you complete probation without any problems? That may be the first question for which the judge will want an answer. In cases where the defendant violated probation or failed to comply, the judge may consider that the defendant did not “take it seriously” and, therefore doesn’t deserve relief…yet. In cases where the defendant did everything he or she was supposed to do, when they were supposed to do it, without issue or excuse, the judge will be much more likely to find that the process had the desired effect and grant relief as a reward for doing right.
Your Criminal Record
What have you done [for me] lately? This is the second question a judge will want answered before making a determination. Have you been crime or criminal entanglement free since the conviction? Or have you been out messing around and getting in trouble? It should seem rather obvious that judges are not generally inclined to grant relief for individuals who have repeatedly flouted the court’s orders and the laws of society. On the other hand, when the underlying offense is the only blemish on your record, again, that is the kind of behavior judges want to reward by granting “expungement” relief under PC §1203.4.
If you have an open case, are subject to prosecution, or are on probation, don’t even bother applying; you are not eligible.
Engagement in Positive Activities
Secondary to the more important factors discussed above, there are some cases where a judge is also interested in any personal improvement initiatives you may have engaged in after your conviction. Support group meetings, volunteer hours, etc. are all signs to a judge that you are on the right path. Your lawyer will encourage you to include information on any community relationships you have worked to strengthen by engaging in charity or volunteering work to persuade the judge of your personal development. Additionally, in rare circumstances, it may be beneficial to include the family support you have received throughout the probation period to show progress in integrating into society.
Eligibility for “Expungement” Relief Under PC §1203.4
From the factors that the judge considers before granting you an expungement, it is easy to tell some of the eligibility requirements you must satisfy for a positive outcome. You will be considered for expungement if:
Your conviction Did not Result in a State Prison Sentence.
If you were sentenced to serve state prison time – no matter where you served it – you are not eligible for this type of relief. In the, now rare, event that your state prison sentence was for a crime that is now a misdemeanor – cocaine possession, for example – you may be eligible for relief through a slightly more complicated process. If you were convicted of a qualifying felony, but not sentenced to state prison, you are more likely eligible for relief. Your records clearing lawyer will be able to tell you.
You Completed Probation Successfully
When a judge orders probation in lieu of jail sentences, there are generally a variety of terms with which the defendant must comply. Probation requirements will vary based on the type of crime for which you were convicted. For example, DUI convictions generally require that the defendant complete a DUI program. Those convicted for domestic violence are almost always required to attend classes for a whole year. When you agree to the terms of probation, whatever they are, the court considers that a promise – a promise for which there are consequences if broken.
Probation may also require you to pay court fines and restitution fees to any affected victim of your crimes. For example, suppose you were involved in a shoplifting that destroyed several items in a store. In that case, you will have to pay restitution to the store owner to help the person recover from the damages and losses you caused.
Moreover, successful completion of probation always requires you not to engage in any criminal activities during the period.
The consequences for violating the terms of probation can be as minor as having your probation revoked and reinstated, or as serious as full-length jail (or prison) sentences.
Lastly, some probation terms require that the defendant return to appear in court periodically to keep the judge updated on progress; to make sure that classes and meetings and fines are all current. Failure to appear at these hearings will result in probation violations and the issuance of arrest warrants.
Defendants who remain in compliance with probation are generally rewarded by the court granting relief under PC §1203.4.
Benefits of Receiving Expungement Orders
Doubtless, “expungement” relief provides several advantages for a successful applicant because it dismisses your case on a recorded plea of not guilty. The relief comes in handy, primarily when you would like to get back to your life before conviction. Some advantages of receiving “expungement” relief are:
Less Likely to Experience Discrimination from Employers
It is usual for employers to conduct background checks for their employees and job applicants to ensure that their workers are criminal history free. Not only because of the perceived “dangers” of hiring a convicted criminal, but the very real-world difficulties, such as insurability and liability. As stated above, a case dismissed is a far better look than a conviction.
Your Credibility as a Witness
If you need to appear as a critical witness in a case, “expungement” relief granted for past convictions may prohibit opposing counsel from discussing it or using it to impeach your credibility.
Professional License Acquisition
Suppose you are a specialized professional in the medical field or any other work field that requires a license for operations. Although you will be required to disclose the case on your application, licensing boards tend to look more favorably upon cases that were dismissed than for convictions.
Find an “Expungement” Attorney Near Me
When facing the baggage of an old conviction, getting “expungement” relief under PC §1203.4 can significantly relieve a ton of stress. At Clear My Records, we exist to make that happen for you. Our experienced team of lawyers will take the burden from you and return with the relief you need. If we cannot, we will tell you right up front. Call us today to get started with a no-obligation consultation.