The Law Office of Vikas Bajaj, APC understands that having a criminal record can create limitations on many aspects of your life.
Whether you’re seeking to have a felony or misdemeanor expunged from your record, we can help. San Diego expungement attorney Vikas Bajaj has successfully helped clients clean up their criminal records for over 19 years. He can help you move forward without the heavy burden of a past conviction holding you back. Call today for an initial consultation.
While most people believe an expungment essentially erases a criminal offense record, under California statute, the more proper term is “dismissal” rather than complete erasure. An expungement essentially asks the court to:
- Open an old case,
- Withdraw a prior plea of guilty,
- Replace that guilty plea with a permanent “not guilty” plea, and
- Have the charges dismissed
Once the case is dismissed, it will then be closed, showing no conviction.
What An Expungement Does
What an expungement does accomplish is that it releases you from “all penalties and disabilities resulting from the offense.” Once the expunction is complete, you are legally allowed to deny having an arrest or conviction in your past, as a new entry in the court record will show a dismissal of your case.
An expungement means a potential employer cannot access your charges or arrest when pulling up your criminal history, and a potential employer is not allowed to ask about the charges or arrest during an interview.
There is an exception to this, however. If you are applying for a government job, or one which requires a government-issued license or a security clearance, you must disclose the initial conviction as well as the expungement.
What Your Expungement Will Not Do
Unfortunately, even following an expungement:
- California and FBI criminal history records will still show the conviction as well as the later dismissal,
- If your right to possess firearms was taken away, an expungement will not reinstate that right, and
- If your conviction required you to register as a sex offender, an expungement will not take this requirement away, (but you may be eligible to request a Certificate of Rehabilitation which could relieve you from further registration.)
Additionally, an expungement will not prevent your conviction from being used as a prior to increase punishment on any subsequent conviction. In the same vein, your prior conviction may still be used for impeachment purposes on a subsequent offense.
An expungement will also not prevent your conviction from being used to refuse or revoke a government license or permit (teaching credentials, bus drivers’ licenses, real estate licenses, etc.).
Lastly, an expungement does not remove your case from public inspection—any person who is knowledgeable about looking such things up, may be able to find the case. (Probation reports are confidential, however, and not subject to public inspection 90 days following sentencing).
Eligibility Requirements for an Expungement
If you were convicted of a misdemeanor or felony offense in the state of California, you may be eligible for expungement. However there are specific requirements which must be met in order to qualify for an expungement under Penal Codes 1203.4-1203.4a, 1203.41 and 17, including the following:
- You must wait for one year following your conviction before you can apply for expungement;
- You must not have been sentenced to serve time in a state prison;
- You must not currently be on probation for any criminal offense;
- You must have no current criminal charges pending;
- You must have either obtained early probation termination or have successfully completed your probation;
- You must have paid all fines associated with your probation;
- You must not be currently serving any type of sentence for any criminal offense;
- You must have appeared for every required court date;
- You must have successfully completed any type of counseling program or community service as mandated by the court, and
- If your conviction was for a felony, an expungement is the first step in obtaining a pardon.
There are certain crimes in California that are not eligible for expungement, including any serious sex offense committed against a child, murder, and kidnapping. The following offenses cannot be expunged:
- Vehicle Code Section 42001(b) including sections 2800, 2801, and 2803.
- Penal Code Section 261(d), 286(c), 288, 288a(c), 288.5 and 289(j).
- Penal Code Section 311.1, 311.2, 311.3, 311.11.
- Penal Code 29900.
Those with probation violations may still be eligible to apply for an expungement, assuming you are otherwise a good candidate. To make a determination, the court considers factors such as:
- The seriousness of the underlying conviction,
- Your ties to community and family,
- Whether you have opportunities to obtain solid employment,
- Your overall criminal history, and
- How well you completed your probation terms when considering an expunction request.
How to Obtain an Expungement in San Diego
The process for obtaining a expungement is quite complex, making it essential you speak to a San Diego expungement attorney who will analyze your case thoroughly in order to determine your eligibility.
A Petition for Relief form will be completed by your attorney, then submitted to the Superior Court where your original conviction occurred.
The Petition will then be reviewed and decided by the court. A filing fee of $120 for a felony case and $60 for a misdemeanor case is required at the time of the filing.
A misdemeanor offense will require no additional information other than what is on the Petition for Relief Form. However, if your conviction was for a DUI, Reckless Driving, Driving on a Suspended License or for a felony offense, additional paperwork will be required, along with a motion.
A court hearing will be scheduled, however your attorney can attend this hearing on your behalf. You may be asked to provide your attorney with your:
- Pay stubs from your current job,
- References from employers, and
- Letters of recommendation from family members or friends.
These letters would be submitted to a judge, along with your other required paperwork, in order to show you are a solid, upstanding citizen in your community and in your work environment.
The goal is to prove to the judge you are responsible for your prior actions, and that you have fully rehabilitated your life. In some instances an expungement may be granted by a motion submitted by your attorney, while others will require a hearing.
How Long Does It Take To Expunge Your Criminal Record
It generally takes the courts at least 8-10 weeks to make a decision regarding your expunction, although a misdemeanor expungement could take less time.
Reducing a Felony to a Misdemeanor for Expungement
If you were charged with a “wobbler”, meaning it could have been charged as a felony or misdemeanor, you can ask the court to amend the conviction to a misdemeanor (Penal Code 17(b)). If the court grants your request, you can then petition the court to expunge your record.
To determine if the crime you were charged with is a wobbler, you need to look at the penal code you were accused of violating. If it was punishable by (1) more than a year in state prison, or (2) less than one year in county jail, then it’s a wobbler.
Labor Laws Protecting Those with an Expungement
There are laws in the state of California which protect those who have successfully had their case “dismissed,” sealed or expunged.
Under California Labor Code 432.7, an employer is not allowed to ask an individual about an arrest which did not end in conviction, and cannot even “look into,” such a situation. Additionally, a potential employer is not allowed to ask about any diversion programs you may have participated in.
If the employer becomes aware of your past criminal record, he or she is not even supposed to consider it when making a hiring decision.
Having an Arrest Record Deleted
If you are attempting to have an arrest record permanently erased, you will go through the “sealing” process in the state of California, rather than the expungement process.
Record sealing may be granted for any arrest which did not result in a conviction. This means whether you were not actually charged with the crime following your arrest, you were arrested and charged but the charges were later dismissed, or you were arrested and charged but were found not guilty, you could be eligible to have those records sealed.
Sealing of arrest records is not automatic; in order to be eligible to have your records sealed, the Court must find no reasonable cause to believe you committed the crime.
If this is the case, and your Petition for Factual Innocence (Penal Code § 851.8(a)) is granted, all arrest and prosecution records will be sealed, including fingerprints and mug shots. After three years, those records will be physically destroyed.
A Petition for Factual Innocence must be filed within two years of your arrest, and it is generally beneficial to have a San Diego criminal attorney assist you in having your arrest record sealed.
Alternatives to Expungement
If you are not eligible for an expungement, you may seek a pardon or clemency.
A pardon forgives the offense but the record remains, while clemency reduces criminal penalties but does not clear your criminal record.
Start Your Initial Consultation with an Experienced San Diego Expungement Attorney
Finding an attorney who is committed to fighting for your rights following your conviction and probation is crucial.
Your attorney can file the necessary paperwork on your behalf, stay in close touch with the court in order to move your expungement process along, and speak on your behalf during your expungement hearings. The need for expungement has increased—and will continue to increase—with the use of Internet background checks.
If you believe you are entitled to a second chance, contact San Diego expungement attorney Vikas Bajaj to determine whether you are eligible.