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MCGREGOR LAW CORP.
EXPUNGEMENTS
Cleaning up your Criminal Record
We put your past behind you and allow you to move on with your life.
WHAT IS A PENAL CODE SECTION 1203.4 EXPUNGEMENT?
In California the "expungement" statute is found in Penal Code section 1203.4. The petition is a post-conviction written process that modifies your criminal record to clean it up. It involves drafting a petition and submitting it to the Court. Depending on the jurisdiction and facts of your case, it may also need a declaration and an appearance in court for oral arguments. The process takes between 60 and 120 days.
The word "expungement" is a misnomer as there are no true "expungements" available in California law. A PC 1203.4 petition takes your plea from "Guilty" or "No Contest" and changes it in the court record to "Not Guilty." It then sets aside and dismisses the conviction, changing the court record from "Convicted" to "Case Dismissed." So, it is a "Petition for Dismissal" and not a "Petition for Expungement" as some call it.
PC section 1203.4 releases you from "all penalties and disabilities resulting from this offense." Penalties and disabilities refer to criminal penalties and disabilities. This does not mean that your conviction is entirely sealed or expunged. Your case may still be viewed through court records open to the public. Your record is not "sealed" from public view, nor is there a legally viable way to make it so, unless you are sealing a juvenile record. The language noted on the record when the case is searched is modified from "Convicted" to "Dismissed."
BENEFITS OF A PENAL CODE SECTION 1203.4 PETITION
Completing a PC section 1203.4 petition empowers you to answer in most employment contexts that you have not suffered the conviction. This means you do not have to disclose the conviction on your job application. You may say to your prospective employer that the conviction never occurred. Removing your criminal record may also assist you to get a loan, an apartment, or to enroll in college.
The recently passed "Ban the Box" legislation interacts with PC 1203.4. It bars private employers from considering the case in their decision-making process. "Ban the Box" also covers cases that have diversion program outcomes and arrests without a conviction.
Expunged convictions also cannot be used to impeach your credibility as a witness in a civil proceeding, such as a divorce or custody battle. This includes convictions for crimes of moral turpitude, pursuant to Evidence Code section 788(c).
LIMITATIONS ON PENAL CODE SECTION 1203.4 RELIEF
You should be aware that the PC section 1203.4 expungement process is a California State legal process. It is not the same as a Federal expungement. It has different requirements and is not formally recognized by the Federal Government. This means that the Federal Government does not have to give legal weight to the dismissal of your conviction, though it may choose to do so. Thus, this expungement may not influence Federal proceedings, such as in an immigration case.
PC section 1203.4 does not remove your duty to disclose this case for professional license purposes with state and federal agencies. Though you may be required to disclose it, the PC section 1203.4 dismissal is still useful. California Business and Professions Code section 480(c) gives weight to the expungement statute. Per law, a single dismissed conviction cannot be the sole reason for a state license board to deny a professional license. This itself is a huge benefit. You must still disclose the case when applying for public office or contracting with the California State Lottery.
Your conviction information will remain visible to law enforcement and will still appear on your "RAP Sheet." The RAP sheet will show that the case was "Dismissed." The dismissed conviction may still be used to enhance future punishment in criminal matters. This means that expunging a first time DUI does not protect from that case being used as a prior offense. Additionally, a dismissed case can still be used for impeachment purposes if you testify in criminal court.
PC section 1203.4 does not release you from other obligations sometimes associated with a criminal conviction. A PC section 1203.4 dismissal does not remove sex-offender registration and cannot reinstate firearm rights.
SELECTED ALTERNATIVE POST-CONVICTION REMEDIES TO PENAL CODE SECTION 1203.4
Despite the exceptions noted above, the expungement process is worthwhile. Upon successful completion, your criminal record is cleaner. It places you in the best legal position available under California law after suffering a conviction. While PC section 1203.4 is the most common post-conviction relief process, it is only one of many ways to clean up your record. There are a whole host of other remedies that may be available to you.
It is important to know that there is legal no "silver bullet" to cure all your problems. There are specific legal tools to complete specific tasks. It takes a skilled and experienced attorney to evaluate your situation and provide you with the information you need. Our firm has experience in 1203.4 petitions as well as the following post-conviction remedies.
JUVENILE RECORDS SEALING
If you went to court when you were under 18 for doing something wrong, you may be able to get the record sealed. This includes records held by law enforcement, the prosecutor, probation, and the courts. When your records are sealed the offense that brought you to court no longer exists by law and you can legally say you do not have a criminal record. Please note, this may not apply if you want to join the military or get a federal security clearance.
In some cases, the court will automatically order your records sealed. In others, you must file a petition asking the court to seal your records.
CLEANING UP A STATE PRISON RECORD
A PC section 1203.4 petition is not available in most situations where you have spent time in state prison, though there are exceptions. You may also clean up such a record with a petition for a "Certificate of Rehabilitation" or an application for a pardon from the Governor. There are, however, ways to reduce certain felony convictions to misdemeanors under Penal Code section 17(b). The process to reduce a case from a felony to a misdemeanor under PC section 17(b) is similar to the 1203.4 petition process. A 17(b) motion may accompany a PC 1203.4 petition or be made on its own.
AVOIDING DEPORTATION/ FEDERAL PROCEEDINGS
In order to have the matter cleaned up for the Federal Government you must file a motion to vacate the plea. Vacating the plea requires a showing that the "guilty" or "no contest" plea was taken in violation of your constitutional rights. Examples of constitutional rights violations include the government failing to advise you of your rights or the consequences of your plea. It may also be the result of you receiving ineffective assistance of counsel. If the motion is successful you are placed in the same legal position you were in before pleading guilty. It does not dismiss the case automatically.
RESTORING FIREARM OWNERSHIP RIGHTS
It is also possible to restore firearm rights after certain convictions. A PC section 17(b) petition to reduce a felony to a misdemeanor has legal effect in restoring firearm rights for ex-felons. According to case law about PC section 17(b), “A person whose felony conviction is reduced to a misdemeanor will no longer be classified as one convicted of a felony unlawfully possessing a firearm.”
Filing your own expungement:
If after reading about the PC 1203.4 process you think you have a strong enough handle on the details to attempt your own filing, attorney Matt Rinaldi has put together a "How To" Guide on filing and serving your own expungement.
Southern California Criminal Defense