When you have a criminal record, it can cause negative impacts in your life. It doesn’t always matter if no conviction resulted from an arrest, having either the arrest or conviction on your record can affect job, schooling, or choice of living opportunities. Employers and landlords routinely ask if you have been convicted or arrested for any criminal activity, and have the legal right to refuse your application if you check ‘yes’ to either question. There is a solution to this problem, however, and that is to have your arrest or conviction expunged from your records.

What is an Expungement?

Having an arrest or conviction expunged from your records is the process of sealing your criminal records. Every state in the U.S. allows for a person to expunge their criminal history, although the details in each state will vary. One detail that is the same in almost every state is that if an arrest or conviction is expunged from your records, you do not have to disclose those facts to landlords or potential employers.

An example of how this works would be if you had been arrested for petty theft at one time, but have had that record expunged. If you later apply for a job and the application has a section asking if you have ever been convicted of a criminal offense, you can honestly answer ‘no.’

Who is Eligible for Expungement?

An expungement of your criminal record means a fresh start for you in many aspects, so it is essential to check your eligibility if you have an arrest or conviction on your files. Check with the law offices of Fountain & Hattersley to determine if your record is eligible for an expungement. You can also check with your criminal court in the county you live, or the law enforcement agency involved with your arrest. These are questions you will need to be answered in determining your eligibility:

  • Ask if your particular arrest or conviction is eligible for expungement. Jurisdictions allow for only certain misdemeanor convictions and arrests to be expunged. Most felony convictions do not qualify for expungement.
  • When your record eligible for expungement is another question, you will need to ask. There are specific requirements for how long your arrest or conviction has to stay on your file before it is eligible to be expunged. Some convictions cannot be expunged until you have finished your sentence as well as your probation terms. Check with your attorney at the Law Offices of Fountain & Hattersley as some judges will shorten probation periods depending on the reason you need an expungement.
  • How long will the process take to expunge your criminal record is another question you want to be answered. Your attorney will be able to walk you through the process of expungement and give you a time frame for how long the process will take.
  • You will also want to know exactly what it means and how it will benefit you to have an arrest or conviction expunged. You will want to know who will still have access to these records after an expungement. Some licensing boards and police departments will still have access, and there might be others you’ll want to know about.

What is a Certificate of Actual Innocence?

The most powerful form of an expungement is the Certificate of Actual Innocence. This certificate will not only seal your record from convictions or an arrest; it is proof the record should never have existed on your file. If you have been arrested for any crime, and the charges are later dropped, or you are taken to trial and found innocent, you should find out if you can receive a certificate of innocence. This certificate will ensure the arrest does not later have adverse effects on your future.

Is a Sealed Record the Same as Expunged?

When your record is sealed, it is similar to expungement, but the files are not as well hidden. Sealed records are not available to the public, such as private investigators, creditors, and employers. The criminal justice system still sees the ‘sealed’ records. This visibility means if you are arrested again, your sealed convictions are still considered as ‘prior’ offenses.

California Law and Expungements

The Labor Code Section 432.7 under California law states that an employer cannot ask you information regarding the detention or an arrest when you apply for a job if it did not end in a conviction. They are also not allowed to ask you about participation or referrals to a diversion program. Under this labor code, a potential employer should not look for any arrest record from any source, if that arrest did not end in your conviction.

If a potential employer learns about an arrest on your records, which did not end in a conviction, they are not allowed to use the information as a deciding factor in promoting, hiring, or firing you. They can, however, ask you about an arrest if you are out on bail at the time, or the court has released you on your own recognizance and is pending a trial.

A conviction under the labor code 432.7 refers to and includes verdicts, pleas, or a finding of guilt. Your employer, or a potential employer, is not allowed to ask someone applying for position information about any juvenile court cases. This rule applies even if the judge has made a final decision against you in the case. If information should be brought to the employer’s attention regarding a juvenile court case, they are not able to use that record when making a decision about training, hiring, terminating, or promoting that person.

Learn What is in Your Records when Considering Expungement

If you have decided it is necessary to have information expunged from your records, the first thing to do is find out what is on your criminal records. The Law Offices of Fountain & Hattersley can assist you with this search, and explain which of those can be removed from your record. If you have had multiple convictions; for each one, you will have to provide:

  • The case number, or docket number, of your case
  • The date on which you were convicted
  • The section number and code name you were convicted of violating, such as Vehicle Code section 14601(a) or whichever code you violated and were convicted of
  • Information on how your case ended, for example, did you agree to enter a plea, or receive a verdict. If you entered a plea in your case, did you plead ‘no contest,’ or ‘guilty’

You may also have to provide further information depending on what you are asking the courts to do:

  • Whether or not you received probation, either informal or formal, and how long it was set for
  • Did you have to make any form of restitution or payments as a condition of your probation
  • Did you fulfill all the terms and conditions of your probation
  • Did you receive a sentence for a state prison, and if so, which one
  • If you completed a sentence in state prison, on what date were you released
  • If you were released from a jail or prison sentence on parole when did your parole end

You can request a copy of your criminal records from a number of sources. One source is working with your attorney at the Law Offices of Fountain & Hattersley as they can help find a copy of the records. You can also obtain a copy from your probation or parole officer. Another source you can check with is the superior court where you were convicted. The superior court will have the records only for their specific county. If you have convictions in multiple counties, you would have to contact each one separately.

Criminal record copies can also be requested from the California State Department of Justice, the Criminal Record Review Unit. This department will have your criminal records for the whole state of California. There are specific directions to follow when going through this route. You may want the assistant of your attorney to ensure you follow those directions properly. It may take several weeks to receive the information.

What Options are Available for Expungements?

It is possible to request the courts to seal particular criminal and arrest records on your file. A judge will determine whether or not you have met the requirements for these records to be sealed so the public cannot see them. There are limitations depending on which remedy you are requesting.

If you have been arrested, but there was no formal court case filed to accuse of the crime, you can request the records of the arrest be destroyed or sealed. To request this, you would file a petition under the California Penal Code 851.8 to destroy your arrest records filed with the police. Should the law enforcement agency holding your records not respond to your request within sixty days, your request will be considered denied. You will then have to file with the court to destroy these records. If the court finds you innocent of the charges for which the arrest was made, the court will then destroy or seal the record.

If you were arrested, but your case was dismissed, you can request the records be destroyed or sealed. You would file a petition under California Penal Code 851.8 with the courts. Should the court find you innocent of the charges for the crime related to the arrest, they will destroy or seal those records.

If you went to court but were acquitted of the charges, you can request your records be sealed along with all records of your detention and arrest. You would have to file an oral or written motion to all parties under California Penal Code 851.85. Should the court find you were innocent of arrest charges, they will order your records sealed.

If you have completed a drug diversion program successfully under California Penal Code 1000, 1000.5, or 1000.8, you can submit a request for the courts to seal any record on your files pertaining to your detention. You would file a petition under California Penal Code 851.90 with the courts.

If at the time you committed a misdemeanor, you were under the age of 18, have received relief, or are eligible for relief under California Penal Code 1203.4 or 1203.4a, you can request your case be sealed, including your detention and arrest records. You would have to file a petition under California Penal Code 1203.45 with the courts.

If you have violated Penal Code 647(b) or 653.22, but have been granted a petition under the Welfare and Institutions Code 781, you can request all of your records on this case be sealed, including those for your detention and arrest. You would file a petition under California Penal Code 1203.47 with the courts.

If your records have been placed in the Department of Justice’s Forensic and DNA Identification Database, but you have no pending charge or qualifying offense to justify your name be in this database, you can request an expungement. You would request that your DNA specimen or sample with the California Department of Justice be deleted or destroyed from your DNA profile. To make this request, you would file a petition under California Penal Code 299 for an expungement.

If you have been convicted of a misdemeanor, but are still on probation, you can request an early release from your probation, and file a petition to have the conviction dismissed. You would file under California Penal Code 1203.3 for termination of your probation and under California Penal Code 1203.4 for a dismissal of your case.

If you have been convicted of an infraction or misdemeanor but were not given probation, you can request a dismissal of your conviction. You would file a petition under California Penal Code 1203.4 for a dismissal of your conviction from your records.

If you have been convicted of an infraction or misdemeanor but were not given probation, you can request a dismissal of your conviction. You would file a petition under California Penal Code 1203.4 for a dismissal of your conviction from your records.

Under California law, a ‘wobbler’ is an offense that can either be a misdemeanor or a felony. The sentencing options listed under the penal codes will tell you if the ‘wobbler’ is a felony or not. Offenses that are punishable by a prison or jail sentence are considered wobblers. If the punishment for a crime receives a sentence of imprisonment according to subdivision (h) under Section 1170, or you could receive a jail sentence, the offense would be a wobbler.

If you have been convicted of a wobbler felony, but are still on probation, you can request an early release from your probation as well as petition to have your conviction dismissed or reduced to a misdemeanor. You would file this request under California Penal Code 1203.3 for the termination of your probation early. You would file under California Penal Code 17(b) to have your felony charges reduced or dismissed.

If you have been convicted of a wobbler felony and have completed your jail time, you can petition to have your conviction dismissed or reduced. You would file under California Penal Code 17(b) to have your felony dismissed or reduced.

If you have been convicted of a felony and received a sentence to county jail under California Penal Code 1170(h) (5), you can petition the courts to dismiss your conviction. You would file the request under California Penal Code 1203.41 for this dismissal.

If you have been convicted of a felony and received a sentence to state prison under the authority of the Department of Corrections, you can file a petition for a certificate of rehabilitation or pardon. Check with your attorney at the Law Offices of Fountain & Hattersley regarding the process and requirements for this form of expungement.

Which Convictions Are Not Eligible for Expungement?

There are some crimes or convictions which are not eligible for expungement under California law:

  • Infractions within the provisions of California Vehicle Code section 42001
  • Misdemeanors within California Vehicle Code Section 42002.1
  • Violations of California Penal Code 286(c), 288, 288.5, 288a(c), or 289(j)
  • Violations of California Penal Code Sections 311.1, 311.2, or 311.11
  • A felony conviction under California Penal Code Section 261.5(d)

What to Expect if Your Records are Expunged

Under most situations, a private employer cannot ask you if you have had any records expunged under Penal Code Section 1203.4. If you are searching for employment in the private sector, you will not have to disclose any information regarding a conviction if it has been expunged from your files. You should talk with your attorney at the Law Offices of Fountain & Hattersley if you have any questions regarding your obligations and rights regarding any past convictions when you begin an employment search.

If you are looking for employment with a government or that involves a government license, you will be required to disclose the information regarding your expunged records. You will have to indicate that you have been convicted, but the conviction was dismissed. Government employers and licensing agencies in California will treat this information the same as having never been convicted of a crime, except for the concessionaire licensing boards and the law enforcement agencies.

The dismissal of your conviction will still be used to increase your punishment or sentencing in any future criminal cases, and you will not be allowed to possess or own a firearm until your original sentencing stated you would be able to do so. Any convictions that are expunged or sealed on your records will still influence your driving privileges.

If your crime or conviction required you to be registered as a sex offender, you would have to go through an entirely separate process to have the courts relieve your of this requirement. Having a conviction expunged does not release you from the duty of registering as a sex offender. This status will remain on your file and be available to the public on the internet under the Megan Law.

Another stipulation of having a record expunged is that it will not allow you to hold a public office. If you’ve had a criminal record expunged or sealed, you are still not eligible for holding a position within the public office.

How an Expungement Petition is Filed

If you are requesting an expungement or petition to reduce a felony or receive an early release from probation, you should talk to your attorney at the Law Offices of Fountain & Hattersley for information on expungements. Your request will have to be mailed or delivered in-person to the clerk of the superior court in the county where you were convicted.

You will need to have all pertinent information included, such as school diplomas, letters of support, and if you are asking for early release from probation, you’ll need to explain to the judge why you feel this request should be granted. When you file the petition, the clerk will set a hearing date for you. You may also be required to serve the probation department or district attorney in the county of your petition request as well.

If you are asked to attend the hearing, you must appear, and you should dress appropriately. If the petition is granted, you will want to keep a record of this proceeding in a safe place. You cannot be charged to file your petition, but the courts can ask for reimbursement to the city, court, and county. This reimbursement fee can be as much as $150 for each sector whether or not they grant your request. Before the court asks you to pay these amounts, they will first determine if you are able to pay all or part of the costs without undue hardship.

If your petition is denied, talk to your attorney at the Law Offices of Fountain & Hattersley. It may still be possible to find out from the clerk at the courthouse why the petition was denied and if there are steps you can take to fix the issues and re-file your request for expungement.

Where Can I Get Criminal Record Expungement Near Me?

If you have a criminal record that is holding you back from employment or housing opportunities, contact the Law Offices of Fountain & Hattersley about receiving an expungement. Call today at 626-793-4111 to discuss your legal options.