Understanding Expungement
Expungement, also called expunction, is a process that is ordered by a court through which legal records of a criminal arrest or conviction are sealed or wholly erased and made unavailable. There are many reasons why this could be done, and the general process varies from one state to the other. A criminal record can deny you a chance to land your dream job. Some criminal records are quite embarrassing and so, could be a significant cause of stress in your life. An expungement makes all this go, allowing a person to live their life fully as if they did not get an arrest or a conviction in their life.
Most criminal records in California are usually available to the public, and this means that it is easy for anyone out there to know about your prior arrests and criminal convictions if they search. For people who were just arrested but were never convicted, maybe they were wrongfully arrested; all you need to do is to have your arrest records sealed. By sealing, you will have police records, booking pictures, the history of arrest, and fingerprint details destroyed.
Record expungement in California is provided under the State’s Penal Code 1203.4, which states that an expungement of a person's criminal convictions releases that person from any negative consequences that could result from that conviction. It is available for everyone who has been convicted of a criminal offense, whether a felony or misdemeanor.
A convicted person can qualify for expungement if:
- They have completed their sentence and probation for the offense whose record they want to be dismissed
- They did not serve time in state prison for that offense
- They served time in state prison instead of county jail for the crimes that were committed after the implementation under realignment proposition
General Benefits of California Expungement
The possibility of expungement of many criminal offenses under California Penal Code Section 1203.4 offers many common benefits to all, including immigrants.
Here are the main such benefits that are sought through expungement:
- Putting the past behind you. When an offense is expunged from your record, it can no longer be brought up against you in most contexts, legally. This is a great personal comfort to those with past convictions but who have since reformed.
- A better career outlook. Although employers are not supposed to (with most jobs at least) discriminate based on prior criminal history in making new hires, everyone knows that a background check revealing past convictions hurts your chances of landing a good job. With past convictions expunged, you can legally say "no" to the question, "have you ever been convicted of a crime."
- Ability to hold state-issued professional licenses. While you must reveal expunged convictions when applying for professional licenses in the state of California, you are not disqualified from most licenses if your criminal conviction has been expunged. And most licensing boards tend not to hold a conviction against you if you completed probation and went through the expungement process.
- Ability to give credible testimony in court. Other than in a new charge brought against you personally, expungement removes the ability of attorneys to destroy the credibility of your testimony in court based on a past criminal conviction. If you ever are called upon to testify on behalf of a friend, family member, or someone else, this will matter very much.
Immigration Benefits of Expungement
Immigration policy is largely handled on a discretionary basis under federal law, which means that neither conviction of a crime nor expungement of a conviction will render the results absolutely certain.
That said, in practical terms, there are certain policies that immigration officials and agencies normally follow. These policies mean that certain egregious convictions can have serious immigration consequences and that an expungement will likely reverse that effect.
It is also true that if the court failed to notify you of possible immigration consequences of your conviction or plea deal, you might be able to argue for the conviction being "defective" so far as immigration issues are concerned. But that is a rare situation to begin with, and it would require a new court battle to challenge the conviction's applicability, which court battle you can't be sure you will win.
Thus, to avoid such consequences as deportation for an aggravated felony, being banned from reentering the U.S. for up to 5 years, being denied renewal of your green card or other visas, and being denied approval for naturalization.
Undocumented immigrants especially could face removal proceedings for a serious criminal conviction, but even lawful permanent residents are not exempt. If the crime is deemed one of "moral turpitude," where utter disregard for the safety of others or extreme moral degradation is involved, immigration consequences will be more severe.
But note that grounds for inadmissibility and grounds of deportation are not always the same. That means that a conviction could leave an immigrant in the U.S. but unable to visit relatives in another country or to gain any further immigration benefits.
Conviction of a felony or highly aggravated DUI, of possession of a controlled substance (other than small amounts of marijuana), of domestic violence, child abuse, rape, murder, visa fraud, and certain other fraud crimes could lead to deportation. Petty theft, crimes committed while a minor and five or more years ago, smuggling in family members, and mere infractions are all unlikely to lead to deportation.
But, any misdemeanor or felony crime on your record can be an obstacle to immigration benefits and citizenship; expungement can remove that obstacle.
When Should an Immigrant Apply for an Expungement?
There are many situations where a non-citizen should pursue expungement. Those with a first-time conviction of a relatively minor offense will benefit most by getting that blot off of their record.
In the case of a first offense simple possession of a controlled substance, for example, expungement is essentially required to avoid deportation. But if you do get the crime expunged, the danger is most likely permanently gone.
Those qualifying under DACA (Deferred Action for Childhood Arrivals) and DAPA (Deferred Action for Parents of Americans/Green Card Holders) can often avoid negative immigration consequences via expungement.
Most crimes are eligible for expungement if you completed your probation or qualified for early termination of your probationary period. In some cases, expungement is automatic as part of a plea agreement; while in other cases, it is fully at the judge's discretion.
Anyone with a criminal conviction on his or her record is in a worse position than without one; thus, while expungement may help some immigrants more than others, it is always a positive action.
Attorney Ross H. Sobel will be able to sort out the legal implications of your conviction and show you specifically how expungement of that conviction can benefit you.
The Expungement Process in California
Having a criminal conviction in California is not an easy thing because it affects several aspects of your life in many ways. You get fined, you serve time in county jail or state prison, depending on the severity of the crime committed, and it also comes with many court obligations that must be carried out. In addition to that, a convicted person has to worry about their reputation and how the conviction affects their relationship with other people. There are professional consequences, too, which makes it hard for such a person to live their lives fully like they would have done without the conviction in their record.
The good thing is that the state of California is willing to help these individuals regain back their reputation and walk without a criminal conviction record. Unlike what many people believe, an expungement does not clean out all your criminal records. What the process does is to withdraw your conviction or guilty plea and to replace it with a non-guilty appeal permanently. When that is done, the case is dismissed, after which the sentence will appear as if it never happened. Unfortunately, not all convictions can be expunged, even though many expungements are allowed by the State’s courts every year.
How does one qualify for record expungement?
You must meet the following criteria:
- You should not be serving probation at the time you petition the court for expungement
- There should be no record that you have been charged with another crime
- You were convicted of a felony or misdemeanor that could have been charged as a misdemeanor
Note that you do not qualify for expungement if you were convicted of a felony offense and you were sentenced to time in state prison. Other people who do not qualify for expungement are those convicted of sexual crimes against minors and those charged with a serious violation of the vehicle code that earned them two or more points on their license.
Before applying for expungement, ensure that all your fines have been paid fully.
The process starts with the petitioner getting a copy of their criminal record from the superior court. You may be required to finish your probation first, but in some situations, the court grants an early termination of the punishment, which you have to petition the court for. If the early termination is issued, pay all your fines, restitution and fees and then apply for expungement.
Getting Expungement for a Felony Conviction
The kinds of felonies that can qualify for expungement in the State are those that could have been charged as misdemeanors, also known as wobbler charges. First, find out if the crime you have been charged with is a wobbler, then petition the court to reduce the charges. You need to prove to the judge that you have changed your life and that you have taken responsibility for your actions for the petition to be granted.
Other felony convictions could be dismissed too, but for those, you need to look into the mode of sentencing the prosecutor used. If, for instance, you were given a county or jail time and probation, you might qualify for expungement if you successfully make two petitions. The first petition will be to reduce the felony charge to a misdemeanor by PC 17b. The second petition will be to request the court to have the misdemeanor charge dismissed, by PC 1203.4. This is a simple and straightforward thing to do and could take a maximum of 16 weeks, depending on court processes and the documents that need to be prepared.
Note that for a felony offense that resulted to imprisonment in state prison, you can only qualify for expungement if you have been living in that same county for five years. Again, you will not file identical petitions as above but a request for Certificate of Rehabilitation and Pardon. You should be able to prove to the judge that you have rehabilitated your life and that you are making an effort to change completely.
Getting Expungement for a Misdemeanor Conviction
All the requirements for expungement of a misdemeanor conviction in California are provided under the State’s Penal Code 1203.4a. For a misdemeanor, all you need to get is a copy of your criminal record, and the simple process will start. Next will be completing and submitting form CR-180, the Petition for Dismissal form. Note that this should be done in the county where the conviction took place.
You will be required to pay the expungement costs, which range between $100 and $400. The costs mainly depend on the court where the petition will be submitted. Even though the process seems simple and straightforward, it helps a lot to have an attorney by your side. An attorney will ensure that all paperwork is submitted in the correct order and on time and that the petition is well presented to avoid being rejected.
Record Expungement FAQ
How long does it take to get your record expunged in California?
Generally speaking, a California expungement can take between 90 and 120 days, depending on the court where the petition has been filed and how old the case is. Sometimes this can go on for up to 6 months and sometimes longer. Several factors determine the amount of time a petition for expungement will take to go through the court system.
Which felonies cannot be expunged in California?
There are several crimes that cannot be removed from a person’s criminal record and these are for instance murder, rape, sexual battery, corruption of a minor, pornography or obscenity with a child, charges involving use of deadly weapons and all felonies and first-degree charges involving a minor of below 18 years as the victim.
How does the court determine eligibility for expungement?
Like mentioned above, several factors are used to determine whether or not a person's criminal conviction can be dismissed from their record or not. A person's eligibility for expungement is mainly determined by the law of the state where they live, the nature of the charge or crime, the amount of time that has gone since the conviction or the arrest and the person's criminal history. In California, many people qualify for expungement every year, and many others do not qualify.
Can one confidently say they have never been convicted after expungement?
Yes, because the expungement marks your conviction as dismissed on your criminal record. This means that if you are seeking employment, you should be able to say NO if you are asked whether you have been convicted for any crime in the past. This will, however, apply to private employers only. If you are applying for a government job, or a license, it is advisable to admit the conviction even if it has already been deleted.
Can a petition or expungement be denied?
Yes, a California expungement can be denied if the petitioner does not qualify for expungement or the due process has not been followed. If the period the law has allowed for one to file for the petition has not been met, additional convictions exist, the fines and other fees have not been fully paid, or there are pending arrests among other things, your application may be denied.
Contact Us Today For Help
At the Law Offices of Ross Howell Sobel, we understand the special legal needs of immigrants of all sorts in Van Nuys, San Fernando, and throughout California.
Attorney Ross H. Sobel stands ready to guide you through the expungement process to remove potential problems that could lead to negative immigration consequences.
If you or someone you love are facing a possible loss of or denial of an immigration benefit based on a criminal conviction, do not hesitate to call us anytime 24/7/365 at 818-582-2350 for a free legal consultation.
