Criminal Record Cleaning Overview
In California, there are a wide range of options for someone who has been convicted of a crime to clean their criminal record. By cleaning one’s criminal record, a person can improve their life and move on from the past. Whether the offense was a felony or misdemeanor or adult or juvenile, California offers many ways to clean your criminal record so it’s less likely your criminal history will negatively affect your life.
Cleaning Criminal Record
The simple reality is that most jobs require background checks of job applicants. You don’t want to lose out on a job opportunity because of a prior conviction. Several crimes like petty theft, marijuana possession, disturbing the peace, trespassing, fraud, illegal purchase of alcohol, and failure to appear in court look bad on a background check. That is why you should take the steps necessary to clear your criminal record of any convictions.
In California, expungement is a method whereby your misdemeanor or infraction conviction is “set aside and dismissed.” Once your conviction is dismissed in most cases you can confidently and legally answer that you were never convicted of a crime. By law, a private employer may not ask a job applicant about any misdemeanor conviction dismissed under 1203.4.
Reduction of Felony to Misdemeanor
If you are convicted of a felony with probation on a “wobbler” offense, the court upon application may declare the offense to be a misdemeanor (Penal Code 17(b)(3)). A “wobbler” is in any felony which can be filed as a misdemeanor or felony. In deciding to reduce a felony to a misdemeanor, the court must give “individualized consideration of the offense, the offender, and the public interest.” (People v Superior Court (Alvarez) (1997) 14 C4th 968,978). Any felony wobbler offense that can be reduced to a misdemeanor should be reduced by the judge prior to having the charged expunged.
Benefit of Reduction of Felony to Misdemeanor
Once the felony is reduced to a misdemeanor the crime is considered a misdemeanor “for all purposes.” There are exceptions to this rule. Some convictions may still be considered a strike under the Three Strikes Law (Penal Code 667(d)(1), 1170.12(b)(1)). The federal government may still consider the conviction a felony for purposes of its gun laws (US v Tallmadge (9th Cir 1987) 829 F2d 767, 770). However, 18 USC 921(a)(20) recognizes some state expungements and set asides as it applies to gun laws.
Restoration of gun rights in California
There are many ways for a person to lose their gun rights in California. If a person is convicted of a felony or certain misdemeanor crimes, the person is subject to a restraining order, it’s a term of probation, or because of a mental health incident. To have these rights restored, you need to take action to clear the conviction, restraining order, or mental health hold that is preventing you from possessing firearms. California law provides several different options for cleaning your criminal record which may have the effect of restoring your gun rights.
Misdemeanor DUI Dismissal
The good news is even if you do get convicted of a DUI you more than likely can get it dismissed at the end of your probation term. If you have successfully completed probation or have had probation terminated early you can petition the court to withdraw your plea and have the court order your case dismissed. If your case is expunged, then you can lawfully answer to most employment related questions that you have never been convicted of a crime.
Dismissal of veterans criminal conviction
Veterans who have acquired a criminal conviction due to a mental health disorder stemming from service in the United States military can have their conviction dismissed by a judge. To be eligible a veteran must successfully comply with their terms of probation.
California Juvenile Record Sealing
A minor can seal their juvenile records by filing a petition to seal their records (Welfare & Institutions Code 781). The petition may be filed 5 years after the termination of juvenile court jurisdiction or when the juvenile reaches 18, whichever is earlier.
Benefits of Juvenile Record Sealing
If the petition is granted, arrest and other records, papers, and exhibits will be sealed and the Department of Justice will be ordered to destroy the records (Welfare and Institution Code 781(a)). Once the records are sealed, “the proceedings…shall be deemed never to have occurred and the person may properly reply accordingly to any inquiry.” (Welfare and Institution Code 781(a)).
Early Termination of Probation
A court can terminate probation and discharge the probationer “when the ends of justice will be served,” and the probationer’s good conduct and reform warrant it (Penal Code 1203.3). A defendant who has satisfactorily completed the probationary period or has been discharged before its termination is entitled to have their guilty plea expunged and the accusation dismissed.
Sealing Arrest Records – Detention Only
In any case in which a person is arrested and released and the officer is either (1) satisfied that there are insufficient grounds for making a criminal complaint against the person arrested or (2) the person was arrested only for being under the influence of a controlled substance or drug and the person is delivered to a facility or hospital for treatment and no further proceedings are desirable and no accusatory pleading is filed charging him with an offense, the person shall be issued a certificate by the law enforcement agency which arrested him describing the action as a detention. Any reference to the action as an arrest shall be deleted from the arrest records of the arresting agency and of the Bureau of Criminal Identification and Investigation of the Department of Justice. Thereafter, any such record of the action shall refer to it as a detention.
Penal Code 1000 Dismissal – Drug Diversion
In California, Penal Code 1000 allows criminal defendants who have committed drug related crimes to have a second chance. According to PC 1000, people who have been charged with certain types of drug offenses will be allowed to avoid jail time and a conviction if they meet certain terms. After the terms have been met, the court will enter a judgment of dismissal, which will allow the person to move forward in life without a conviction. After the case is dismissed, we can ask the court to seal your court file so no one can ever see it.
Prop 64 – Marijuana Convictions reduced
Under Prop 64 “The Adult Use of Marijuana Act”, which was passed by California voters on November 8, 2016, adult use of marijuana has been legalized. Prop 64 reduces the criminal penalties for most remaining marijuana offenses from felonies to misdemeanors and some misdemeanors to infractions. Prop. 64 applies to both juveniles and adults.
Prop 64 – Marijuana Convictions Expunged
In addition to legalizing the responsible use of marijuana by adults 21 and over, Prop. 64 allows most people previously convicted of most marijuana felonies to have a judge reduce their felony convictions to misdemeanors. It also allows most people previously convicted of marijuana misdemeanors to have a judge reduce their misdemeanor convictions to infractions. Finally, it allows some individuals to have their prior convictions dismissed and sealed entirely.
Individuals who have been convicted of a crime in California may apply to the Governor for a pardon. A Pardon is only granted to individuals who have exhibited exemplary behavior following their conviction. Obtaining a pardon is based on proof of a useful, lawful, and productive life following their conviction. The governor has complete discretion to grant a pardon. Historically governors have granted very few pardons.
Certificate of Rehabilitation
A Certificate of Rehabilitation is a court order declaring that a person convicted of a crime is now rehabilitated. Any person convicted of a felony who still resides in California may apply to the Superior Court in the county where they live for a Certificate of Rehabilitation. There are special rules that apply to individuals convicted of sex offenses. Once a petition is filed, the court may require an investigation by the district attorney and will schedule a court hearing. If the Court issues a Certificate of Rehabilitation, the certificate is forwarded to the Governor’s Office where it automatically becomes an application for a pardon. The Governor’s receipt of a Certificate of Rehabilitation does not guarantee that a pardon will be granted.
California Finding of Factual Innocence
An innocent person arrested for or charged with a crime may be able to have the arrest record cleared by obtaining a declaration of factual innocence. A person is only “factually innocent” if no reasonable cause exists to believe the person committed the offense. If relief is granted, all records relating to the arrest and charges must be sealed for 3 years and then subsequently destroyed (Penal Code 851.8(b)), and the arrest is deemed to never have occurred (Penal Code 851.8(f)). There is a deadline to file a petition for a finding of factual innocence so it is important to file the petition in a timely manner or the right for relief may be lost.
DNA Removal from State Database
Law enforcement is allowed to collect and keep DNA samples and profiles of anyone convicted of a felony or anyone required to register as a sex or arson offender. The DNA sample is put into the CAL-DNA database maintained by the Department of Justice (DOJ). DNA samples and profiles may also be saved by the FBI. If there is no legal basis for the DOJ to keep your DNA sample and profile, you can request that the sample be destroyed and your DNA profile be erased from the database.
Removing Name from Megan’s Law Website
If a person has been convicted of certain registerable offenses, that person may file an application with the Department of Justice for exclusion from the Internet Web site. He or she bears the burden of proving the facts that make him or her eligible for exclusion from the Internet Web site.
Do You Need An Attorney
If you can afford an attorney, hire an attorney to clear your criminal record. It will save you time, money, and you can make sure that it is done right. Because of the legal process, there are often complications that can result in a delay or denial of the motion. Complications include outstanding fine or restitution issues, violations of probation, incomplete court file, difficulty locating the case file in the original sentencing court, meeting the eligibility requirements, obtaining a court date, procedurally filing the correct number of petitions, and properly serving the documents on the right governmental agencies including the district attorney, probation department and court. Every jurisdiction has their own procedure for how they handle expungements which can be confusing.
Eligibility for California Criminal Record Cleaning
California has specific requirements and eligibilities for clearing a person’s criminal record. Because of these requirements, you need to review the law or consult with an attorney regarding whether or not you are eligible to expunge your California Criminal Record.
Choosing a Criminal Record Cleaning Attorney
If you are going to hire a lawyer, make sure you are dealing with a real lawyer. You also want to make sure they have a good success rate and read any reviews available online. If you do your research you should find a reputable law firm that specializes in expungement to handle the case for you.