Understanding Expungement In California
Criminal records in the Golden State have always been available to anyone who cared to look them up. However, until just a few years ago, such efforts involved sifting through literally millions of civil and criminal records to find ones that belonged to a certain person, as as such efforts were often fruitless,many employers and landlords simply did not bother.
That is different now, thanks to the advent of commercial indexing software that allows interested persons to enter personal information, like a drivers’ license number or date of birth, and access all relevant records with just a few clicks or taps.
Since almost any criminal conviction makes it difficult or impossible to find a job (even though California has a so-called “ban the box” law) find a place to live, pursue certain professions, or reach other personal and professional goals. Fortunately, California has one of the most liberal expungement laws in the country.
In many cases, formal expungement is not even necessary, because defendants may be eligible for a pretrial diversion program. In most cases, the prosecutors refer defendants to such programs based on subjective factors such as criminal history; in a few cases, defendants may pursue “open pleas” before the judge and ask for pretrial diversion at that stage. In either case, the defendants do not necessarily have to be first-time offenders to qualify, although in practice, recidivists rarely receive pretrial diversion. California has several types of programs, and the main ones are:
- ADP: The Adult Diversion Program is a four-month series of measures designed exclusively for first-time misdemeanor offenders. Defendants who successfully complete all program requirements are never charged with crimes.
- PD: In the general Pretrial Diversion program, misdemeanor charges previously filed are either dismissed entirely or reduced to infractions following successful completion. In many jurisdictions, PD is much like regular probation in terms of its length and requirements.
- DEJEP: The state dismisses charges against drug offenders who successfully complete a six-month Deferred Entry of Judgment Program; typically, only simple possession cases are DEJEP-eligible.
The advantage to pretrial diversion is that defendants do not have to file separate actions to have their convictions expunged; the drawback is that, in most cases, the charging records remain. Most people will assume that the charges were dropped due to lack of evidence, but if questions arise, a response like “I hired a lawyer and the lawyer took care of it” usually ends the inquires.
Under California Penal Code 1203.4, everyone who successfully completes probation in almost any “wobbler” (an offense that can be charged as either a misdemeanor or felony) is eligible for expungement. In some cases, even people who do not successfully complete probation are eligible if the judge finds that, based on their overall performance during probation, criminal history, need for expungement, and other relevant factors, the defendants are still good candidates for expungement.
That being said, a California expungement does not have the same effect as expungement in other states. Rather than eliminating the underlying records, a California expungement removes most of the disabilities of a criminal conviction. Expungement does not:
- Apply at all in most sexual offenses against minors,
- Restore the right to own firearms,
- End an obligation to register as a sex offender, or
- Prevent the conviction’s use in subsequent DUI or “three strikes” proceedings.
Some of these disabilities can be cured by a certificate of rehabilitation or an executive pardon.
There is no waiting period for expungement proceedings. As matter of fact, defendants may apply for early discharge from probation at any time, although most judges like to see at least twelve months of successful completion. Early discharge has benefits in and of itself, because it releases defendants from court supervision and relieves them of their financial obligations.
Some defendants are eligible for relief under PC 851.8. To have all records, including arrest records, completely sealed or destroyed, one of the following must apply:
- The charges were dismissed for a substantive reason, i.e. lack of evidence or lack of probable cause,
- No charges were ever filed following an arrest, or
- A judge or jury returned a not-guilty verdict.
Procedurally, if the petitions are based on pretrial dismissal, the defendants have the burden of proof to show that the police report showed that the defendant was factually innocent. Furthermore, there is normally a two-year time limit in these cases and it is the defendants’ responsibility to identify all agencies which have records that are to be sealed or destroyed. A somewhat different procedure applies in juvenile matters.
California defendants have several options to reduce or eliminate the long-term consequences of criminal convictions. For a free consultation with an experienced San Diego criminal lawyer, contact the Law Office of Vikas Bajaj, APC. We routinely handle matters in San Diego County and nearby jurisdictions.