Each year thousands of new laws are enacted and more and more conduct is criminalized. Over 2.5 million people are now presently serving prison sentences in the United States - more than in any other country in the world - and millions more are convicted of misdemeanors each year!
As a result of that law and order frenzy, we, literally, can no longer build prisons and jails fast enough to hold everybody - but still the beat goes on.
Consequence: millions of Americans now have criminal records!!!
Even though they have paid their debt to society by having served their time, paid their fines, made restitution, successfully completed probation or parole, and rehabilitated themselves, they continue to be punished as a result of a criminal record that follows them through life.
Those convicted of a felony return to society only to learn that they have lost many of the basic civil rights that their fellow citizens enjoy such as the right to vote or the right to hold office.
They may find themselves, not only barred from pursuing certain professions but, precluded from obtaining almost any but the most menial, lowest paying, jobs.
If you find yourself in that predicament, EXPUNGEMENT may be the answer.
WHAT IS EXPUNGEMENT?
By statute in California, and subject to some specific exceptions, one who has been convicted of a felony, or a misdemeanor, may petition the court to have that conviction "expunged", ie. removed, from their record. Other states, the military and the federal government may have somewhat similar provisions.
Certain offenses in California, such as some sex crimes and certain Vehicle Code violations, may be ineligible for expungement. Further, felonies, which involved serving actual prison time, are not eligible for expungement but may be removed by making application for a certificate of rehabilitation or pardon.
HOW DOES EXPUNGEMENT WORK?
If you were convicted of a misdemeanor or a felony, for which you were not sentenced to state prison, under the authority of the California Department of Corrections, you can petition the court for a dismissal. Thus, if you were given jail time, probation, a fine, or some combination of them, you may be eligible to file a formal petition requesting the court to permit you to withdraw your plea of guilty, or nolo contendere (no contest), or verdict of guilty if you went to trial, and enter a not guilty plea instead. The court can then, in its discretion, set aside and dismiss your conviction.
ARE YOU ELIGIBLE FOR EXPUNGEMENT?
Generally, there are four basic requirements that you must meet in order to be eligible for expungement in California:
1. You cannot be on probation if you apply for expungement;
2. If you were not placed on probation at the time of sentencing, one year must have elapsed before you can apply for expungement;
3. If you were placed on formal probation when sentenced, you may be required to file your petition through the Probation Department;
4. A separate petition is required for each case number and, arguably, for each conviction.
However, there are exceptions. For example, if you were convicted of a misdemeanor and are still on probation, you may be able to request an early release from probation and file a petition to have your conviction(s) dismissed. Somewhat similarly, if you were convicted of a felony and are still on probation, you may be able to request an early release from probation and petition the court to reduce your felony conviction to a misdemeanor and dismiss it.
WHAT EXPUNGEMENT WILL AND WILL NOT DO
Upon successfully expunging your criminal record in California, you are no longer considered convicted of that offense and your record will be changed to show a dismissal rather than a conviction.
In that regard, it is important to understand that although the term "expungement" literally means to destroy, strike, blot out or obliterate, that is not what, literally, happens in California. Rather than being, literally, destroyed, what actually happens is that your criminal record is up-dated to show that the conviction was replaced by a dismissal such that you no longer stand convicted of the offense(s).
Once all of your convictions have been expunged, you can truthfully answer the question of private employers, "Have you ever been convicted of a crime?", "No!"
On questions by government employers, or on government licensing applications, if asked if you have ever been convicted of a crime, you must respond, "Yes, Conviction dismissed." However, in California, those government employers, and licensing agencies, must then treat you as if you had never been convicted of the expunged offense.
In California, even though your criminal record is expunged,
You will still not be permitted to own, or possess, a firearm until you otherwise would be able to;
Your dismissed conviction(s) can still be used to increase your punishment in future criminal cases;
Your prior conviction(s) can still affect your driving privilege; and
If you have been required to register as a sex offender as a result of a conviction, you will have to make a separate motion to the court in order to be relieved of that requirement. A dismissal will not automatically relieve you of your duty to register as a sex offender.
EXPUNGEMENT AND SPECIAL SITUATIONS
Diversion. In California, if you were referred to a "diversion" program, typically, your record will have already been changed. Example: If you successfully completed the diversion program, your record should have already been changed to show a dismissal rather than a conviction. If you failed to successfully complete the diversion program, however, your conviction will still be on your record unless, and until, you have it expunged.
Marijuana Possession. In California, if you were convicted of possession of marijuana for personal use, you may not need to expunge your record since, under Section 11361.5 and 11361.7 of the California Health & Safety Code, all possession of marijuana for personal use convictions, after January 1, 1976, are automatically erased from your record after two years. But, watch out! Those provisions do not apply to convictions for cultivation, sales or transportation of marijuana. Those convictions, typically, will remain on your record unless, and until, you have them expunged.
JUVENILE RECORDS
In California your juvenile records do appear as a part of your criminal record! However, upon your 18th birthday, you are eligible to petition the court to have your juvenile records sealed. Once sealed, no one can gain access to them and they will remain sealed until they are completely destroyed five years after the date of sealing.
It is very important to note, however, that in California juvenile records are not automatically sealed upon your 18th birthday! You must petition the court to have them sealed.
If you graduated from the California Youth Authority, your juvenile conviction(s) typically, will have been automatically dismissed as a part of your graduation. However, unless you petition to have your juvenile records sealed and destroyed, they will remain on your record until your 38th birthday - at which time they will be destroyed.
WHAT CAN AN EMPLOYER LEGALLY ASK YOU ABOUT YOUR CRIMINAL RECORD?
In California. Section 432.7 of the Labor Code provides that:
"No employer...shall ask an applicant for employment to disclose...information concerning an arrest or detention that did not result in conviction, or information concerning a referral to, and participation in, any...diversion program, nor shall any employer seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including hiring, promotion, termination...any record of arrest or detention that did not result in conviction....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...."
Thus, strictly speaking, the only questions that a potential private employer in California may legitimately ask you, as a job applicant, are:
Have you ever been convicted of a crime?
[To which the answer is simply "yes" or "no".]
Are you currently out on bail, or on your own recognizance, pending trial as the result of having been arrested?
[Here, under the language of the statute, it is less clear whether a simple "yes" or "no" answer will suffice and, if not, to what extent the potential employer may make some follow-up inquiry of you about your arrest and pending prosecution.]
What does seem clear, under Section 432.7 of the California Labor Code, is that the questions so typically asked by potential employers, such as "Have you ever been arrested and, if so, for what?" are "illegal" and cannot be properly asked - nor can your responses to such questions be used to deny you employment or promotion.
Having said that, however, you have to be prepared to deal with the real world where those questions are routinely asked of job applicants everyday and the answers relied upon by potential employers.
In the face of that reality, your best strategy may be to expunge your criminal record so that you can truthfully, and with confidence, answer the legitimate question, "Have you ever been convicted of a crime?", "No."
4/29/03