Expungement of Criminal Records
At the Law Offices of Kevin McConnell, we know expungements! Let our experienced expungement lawyers get your record cleaned up. We may even be able to get your felony conviction reduced to a misdemeanor and then expunged forever. In most case, we can tell you if your case can be expunged (and your felony reduced) at the time of our initial consultation. Call today for a free, confidential, no-obligation consultation about getting your records cleared.
What is Expungement?
Expungement is the process of petitioning the court to have your criminal case re-opened, and to have your conviction set aside and the case dismissed under CA Penal Code § 1203.4. Once your case has been expunged, you can legally and honestly state on employment applications that you have not been convicted of a crime.
Why is Expungement Important?
Most employers and landlords conduct a criminal a background check before making a decision to hire you or rent to you. If you have a criminal record, these individuals and companies are less likely to associate with you. Once your record has been expunged the criminal conviction will no longer show on your record and/or on most background checks. You will be able to honestly and legally fill out applications by responding “No” when asked if you have any criminal convictions on your record.
Who is Eligible for Expungement?
Most people convicted of a crime in California are eligible for expungement of their record, even if they violated their probation. Here are the basic requirements:
- You were granted probation and have completed your probation. Or, if you were not granted probation, it has been more than a year since you were sentenced.
- You are not currently on probation. (If you are still on probation, you may be eligible for early termination of probation. Contact our office today to determine if you qualify.
- You are not currently charged with a crime in a pending case.
- You are not currently in custody, including electronic confinement.
Cases in which you were sent to a California State Prison are not eligible for expungement.
What Expungement WILL Do For You
Expungement of your record changes a conviction to a dismissal but it does not erase the record and it is far from a perfect solution. However, an expungement can definitely help you in many ways, including:
- Employers may not ask about expunged cases nor use this information against you in making employment decisions.
- Your expunged conviction will not show up at all on many employment, credit, banking and other background checks.
- You can truthfully and legally answer “NO” on almost all job applications when asked if you have a criminal history.
- You may be eligible for many more employment opportunities and increase your earning potential and prospects.
- You can tell friends and family that you have not been convicted of a crime.
- You can feel better about yourself having cleaned up your record and leaving your past behind. We have all made mistakes in life and it feels good to leave that baggage behind!
What Expungement Will NOT Do For You
Expunged convictions may still be used against you as “priors” or sentence enhancements if you are charged in a new case. For example, even an expunged DUI can still count as a “prior conviction.”
- An expungement will not remove anything from your DMV record; it will clean up your criminal record.
- Expungement, by itself, does restore your right to own a gun. In order to recover your gun rights, you must also have any felony conviction reduced to misdemeanor status.
- You must disclose even expunged convictions under some circumstances such as applying for any State License (doctor, nurse, CNA, LVN, contractor’s license, etc.) or applying for public office.
- Expungement is not the same as sealing the record, rather it removes the conviction from your record and updates the record to show the case as dismissed. A conviction cannot be sealed in California, it can only be expunged (hidden from employers), meaning police, prosecutors, courts, etc. will still be able to see the record.
Can Expungement Reduce a Felony to a Misdemeanor
Expungement does not reduce a felony to a misdemeanor. We routinely seek reduction of felonies under CA Penal Code § 17 when we file for expungement.
Can I Expunge My Record Even Though I Violated Probation?
Yes, almost all of our clients have had one or more violations of probation and still get their records expunged. When there has been a violation of probation, a higher level of proof is required to secure an expungement. You must show that granting an expungement is “in the interests of justice”. In this situation, it is important to have an experienced expungement lawyer handling the case. The Law Offices of Kevin McConnell have handled scores of these cases, and we routinely secure expungement for our clients who have had less than perfect performance while on probation.
PENAL CODE § 1203.4
Penal Code § 1203.4 — “expungement” law
(a)(1) In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has 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 under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter 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 probationer shall be informed, in his or her probation papers, of this right and privilege and his or her right, if any, to petition for a certificate of rehabilitation and pardon. The probationer may make the application and change of plea in person or by attorney, or by the probation officer authorized in writing. However, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission. (2) Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6. (3) Dismissal of an accusation or information underlying a conviction pursuant to this section does not permit a person prohibited from holding public office as a result of that conviction to hold public office. (4) This subdivision shall apply to all applications for relief under this section which are filed on or after November 23, 1970. (b) Subdivision (a) of this section does not apply to any misdemeanor that is within the provisions of Section 42002.1 of the Vehicle Code, to any violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, subdivision (j) of Section 289, Section 311.1, 311.2, 311.3, or 311.11, or any felony conviction pursuant to subdivision (d) of Section 261.5, or to any infraction. (c)(1) Except as provided in paragraph (2), subdivision (a) does not apply to a person who receives a notice to appear or is otherwise charged with a violation of an offense described in subdivisions (a) to (e), inclusive, of Section 12810 of the Vehicle Code. (2) If a defendant who was convicted of a violation listed in paragraph (1) petitions the court, the court in its discretion and in the interests of justice, may order the relief provided pursuant to subdivision (a) to that defendant. (d) A person who petitions for a change of plea or setting aside of a verdict under this section may be required to reimburse the court for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the court not to exceed one hundred fifty dollars ($150), and to reimburse the county for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the county board of supervisors not to exceed one hundred fifty dollars ($150), and to reimburse any city for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the city council not to exceed one hundred fifty dollars ($150). Ability to make this reimbursement shall be determined by the court using the standards set forth in paragraph (2) of subdivision (g) of Section 987.8 and shall not be a prerequisite to a person’s eligibility under this section. The court may order reimbursement in any case in which the petitioner appears to have the ability to pay, without undue hardship, all or any portion of the costs for services established pursuant to this subdivision. (e)(1) Relief shall not be granted under this section unless the prosecuting attorney has been given 15 days’ notice of the petition for relief. The probation officer shall notify the prosecuting attorney when a petition is filed, pursuant to this section. (2) It shall be presumed that the prosecuting attorney has received notice if proof of service is filed with the court. (f) If, after receiving notice pursuant to subdivision (e), the prosecuting attorney fails to appear and object to a petition for dismissal, the prosecuting attorney may not move to set aside or otherwise appeal the grant of that petition. (g) Notwithstanding the above provisions or any other provision of law, the Governor shall have the right to pardon a person convicted of a violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of Section 289, if there are extraordinary circumstances.
PENAL CODE § 1203.3
Penal Code § 1203.3 — early termination of probation
(a) The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence. The court may at any time when the ends of justice will be subserved thereby, and when the good conduct and reform of the person so held on probation shall warrant it, terminate the period of probation, and discharge the person so held. The court shall also have the authority at any time during the term of mandatory supervision pursuant to subparagraph (B) of paragraph (5) of subdivision (h) of Section 1170 to revoke, modify, or change the conditions of the court’s order suspending the execution of the concluding portion of the supervised person’s term. (b) The exercise of the court’s authority in subdivision (a) to revoke, modify, or change probation or mandatory supervision, or to terminate probation, is subject to the following: (1) Before any sentence or term or condition of probation or condition of mandatory supervision is modified, a hearing shall be held in open court before the judge. The prosecuting attorney shall be given a two-day written notice and an opportunity to be heard on the matter, except that, as to modifying or terminating a protective order in a case involving domestic violence, as defined in Section 6211 of the Family Code, the prosecuting attorney shall be given a five-day written notice and an opportunity to be heard. (A) If the sentence or term or condition of probation or the term or any condition of mandatory supervision is modified pursuant to this section, the judge shall state the reasons for that modification on the record. (B) As used in this section, modification of sentence shall include reducing a felony to a misdemeanor. (2) No order shall be made without written notice first given by the court or the clerk thereof to the proper probation officer of the intention to revoke, modify, or change its order. (3) In all probation cases, if the court has not seen fit to revoke the order of probation and impose sentence or pronounce judgment, the defendant shall at the end of the term of probation or any extension thereof, be by the court discharged subject to the provisions of these sections. (4) The court may modify the time and manner of the term of probation for purposes of measuring the timely payment of restitution obligations or the good conduct and reform of the defendant while on probation. The court shall not modify the dollar amount of the restitution obligations due to the good conduct and reform of the defendant, absent compelling and extraordinary reasons, nor shall the court limit the ability of payees to enforce the obligations in the manner of judgments in civil actions. (5) Nothing in this section shall be construed to prohibit the court from modifying the dollar amount of a restitution order pursuant to subdivision (f) of Section 1202.4 at any time during the term of the probation. (6) The court may limit or terminate a protective order that is a condition of probation or mandatory supervision in a case involving domestic violence, as defined in Section 6211 of the Family Code. In determining whether to limit or terminate the protective order, the court shall consider if there has been any material change in circumstances since the crime for which the order was issued, and any issue that relates to whether there exists good cause for the change, including, but not limited to, consideration of all of the following: (A) Whether the probationer or supervised person has accepted responsibility for the abusive behavior perpetrated against the victim. (B) Whether the probationer or supervised person is currently attending and actively participating in counseling sessions. (C) Whether the probationer or supervised person has completed parenting counseling, or attended alcoholics or narcotics counseling. (D) Whether the probationer or supervised person has moved from the state, or is incarcerated. (E) Whether the probationer or supervised person is still cohabiting, or intends to cohabit, with any subject of the order. (F) Whether the defendant has performed well on probation or mandatory supervision, including consideration of any progress reports. (G) Whether the victim desires the change, and if so, the victim’s reasons, whether the victim has consulted a victim advocate, and whether the victim has prepared a safety plan and has access to local resources. (H) Whether the change will impact any children involved, including consideration of any child protective services information. (I) Whether the ends of justice would be served by limiting or terminating the order. (c) If a probationer is ordered to serve time in jail, and the probationer escapes while serving that time, the probation is revoked as a matter of law on the day of the escape. (d) If probation is revoked pursuant to subdivision (c), upon taking the probationer into custody, the probationer shall be accorded a hearing or hearings consistent with the holding in the case of People v. Vickers (1972) 8 Cal.3d 451. The purpose of that hearing or hearings is not to revoke probation, as the revocation has occurred as a matter of law in accordance with subdivision (c), but rather to afford the defendant an opportunity to require the prosecution to establish that the alleged violation did in fact occur and to justify the revocation. (e) This section does not apply to cases covered by Section 1203.2.
PENAL CODE § 17
Penal Code § 17 — reduction of felony to misdemeanor
(a) A felony is a crime that is punishable with death, by imprisonment in the state prison, or notwithstanding any other provision of law, by imprisonment in a county jail under the provisions of subdivision (h) of Section 1170. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions. (b) When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: (1) After a judgment imposing a punishment other than imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170. (2) When the court, upon committing the defendant to the Division of Juvenile Justice, designates the offense to be a misdemeanor. (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor. (4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his or her arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint. (5) When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint. (c) When a defendant is committed to the Division of Juvenile Justice for a crime punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail not exceeding one year, the offense shall, upon the discharge of the defendant from the Division of Juvenile Justice, thereafter be deemed a misdemeanor for all purposes. (d) A violation of any code section listed in Section 19.8 is an infraction subject to the procedures described in Sections 19.6 and 19.7 when: (1) The prosecutor files a complaint charging the offense as an infraction unless the defendant, at the time he or she is arraigned, after being informed of his or her rights, elects to have the case proceed as a misdemeanor, or; (2) The court, with the consent of the defendant, determines that the offense is an infraction in which event the case shall proceed as if the defendant had been arraigned on an infraction complaint. (e) Nothing in this section authorizes a judge to relieve a defendant of the duty to register as a sex offender pursuant to Section 290 if the defendant is charged with an offense for which registration as a sex offender is required pursuant to Section 290, and for which the trier of fact has found the defendant guilty.
LABOR CODE § 432.7(A)
Labor Code § 432.7(a) — no use of expunged case by employer
(a) No employer, whether a public agency or private individual or corporation, shall ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction, or information concerning a referral to, and participation in, any pretrial or posttrial diversion program, or concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law, including, but not limited to, Sections 1203.4, 1203.4a, 1203.45, and 1210.1 of the Penal Code, nor shall any employer seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including hiring, promotion, termination, or any apprenticeship training program or any other training program leading to employment, any record of arrest or detention that did not result in conviction, or any record regarding a referral to, and participation in, any pretrial or posttrial diversion program, or concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law, including, but not limited to, Sections 1203.4, 1203.4a, 1203.45, and 1210.1 of the Penal Code. As used in this section, a conviction shall include a plea, verdict, or finding of guilt regardless of whether sentence is imposed by the court. Nothing in this section shall prevent an employer from asking an employee or applicant for employment about an arrest for which the employee or applicant is out on bail or on his or her own recognizance pending trial.
CA CIVIL CODE § 1786.18(A)(7)
A Civil Code § 1786.18(a)(7) — no use of dismissed cases in credit reporting
(a) Except as authorized under subdivision (b), an investigative consumer reporting agency may not make or furnish any investigative consumer report containing any of the following items of information: (7) Records of arrest, indictment, information, misdemeanor complaint, or conviction of a crime that, from the date of disposition, release, or parole, antedate the report by more than seven years. These items of information shall no longer be reported if at any time it is learned that, in the case of a conviction, a full pardon has been granted or, in the case of an arrest, indictment, information, or misdemeanor complaint, a conviction did not result; except that records of arrest, indictment, information, or misdemeanor complaints may be reported pending pronouncement of judgment on the particular subject matter of those records.