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Expungement: What is it? Who can get
it?
“Expungement,” “sealing my records,” “withdrawing the plea,” or
“vacating the conviction” are all terms used for it. What is it?
There are two primary ways of “cleaning up” a record of criminal
conviction, with different procedures and different
consequences.
Vacating the Conviction and Dismissing
The most common and easiest way in California is bringing a
motion before the Court under California Penal Code Section
1203.4. It’s primary value is to “clean up” a record of criminal
conviction so that a prospective employer will not know of it.
Under this statute, no records of conviction are destroyed, nor
are the arrest records. Police will still know about it, and
court records remain on file as public records, but any employer
doing a background check will be told that “We have no record of
criminal conviction for that person,” and in many cases, that
makes a world of difference.
Under 1203.4, any person who has successfully completed his
period of probation for either a misdemeanor or felony and is
not then serving a jail sentence, facing new charges or on
probation for any offense, may petition the Court for an order
allowing him to withdraw his plea of guilty or “no contest”, or
vacate the jury verdict of “guilty” and dismiss the charges
retroactively. This motion can also be combined with a motion to
terminate probation early, though generally no such motion will
be granted before at least half of the probationary period is
set, and only if a good reason can be shown why it should be
ended early. Once granted, the defendant can thereafter always
legally answer “No” to the questions whether he or she has ever
been arrested or convicted for the offense.
One disadvantage of the 1203.4 motion is that anyone who has
heard that you had a criminal case in a given county can go to
the criminal court house and ask to see your court file. The
clerk will show him or her the file, but that person has to
already know it is there, which county, and approximately when
the case was in court in order to find it. Another caution with
this relief is that the dismissed offense can still be alleged
as a “prior conviction” if you should ever be charged with it
again. This could increase the punishment for a new offense, or
turn a misdemeanor into a felony.
Further limitations are that this court ordered relief does not
authorize you to deny a prior conviction in any application for
“public office,” for contracting with the California Lottery
Commission, or in an application for any occupational license
required by California (hairdresser, private investigator,
teacher, fire fighter, Chiropractor, attorney, realtor, etc.).
“Public office” has not been legally defined, but probably
includes police officer, court clerk, School board member,
building inspector, tax assessor, etc.
It is not infrequent that an employer knows of an applicant’s
criminal history, but wants to hire them anyway, but for
corporate regulations prohibiting same. They will sometimes hire
such a person with the understanding that they will have the
offense “expunged.” |
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Petition for Finding of Factual
Innocence (“PFFI”)
The second major category of “expungement” relief in California
is a petition for “factual innocence” under California Penal
Code Section 851.8. This process results in a much better
“cleaning up” of your record, but is harder to get. It is
applicable to an arrest which does not result in any court
charges being filed; to a charge which is filed but then
dismissed; and to a charge which later results in an acquittal
after trial. As the name implies, it is granted when the person
arrested or charged can prove to the judge’s satisfaction that
he or she was actually innocent of the charge, rather than that
it was dismissed or an acquittal rendered just because the
evidence against him or her was weak. Obviously, in a system in
which a person is presumed innocent, many guilty people may wind
up being acquitted or having the charges dismissed. That is not
good enough for this method of “expungement.”
The Court may not grant the PFFI unless it finds that “no
reasonable cause exists to believe that the arrestee committed
the offense”. This means that if the Prosecutor opposes the
petition and introduces incriminating evidence that suggests
that a jury might have convicted, then the petition may be
denied. This may occur if the District Attorney dismissed the
case due to inability to get admissible evidence in to court,
though he believed strongly that the accused was guilty.
If the PFFI petition is granted though, the results are
wonderful. The Judge then orders the police, Attorney General
and the Courts to seal all their records for a period of three
years. During this period, people inquiring as to a criminal
record will be told “We have no record of any arrest or
conviction for that person.” At the end of three years, those
entities must then not just seal all records of the offense, but
destroy them, including the court order requiring the sealing
and destruction of the criminal records.
This last point can become a key event. The court order itself
for sealing/destroying the criminal records will be destroyed,
so if you are the recipient of such an order, be sure that you
obtain several certified copies of the order and put them in a
very safe place. The Court will not be able to give you another
copy years later when you lose yours. In addition, all of the
court indexes and print-outs of past criminal cases will have to
delete the mention of your name. The State authorities who
forwarded your arrest records to other agencies are ordered to
follow up and request those recipients to destroy their copies
too, but due to the U. S. Constitution’s supremacy clause, a
state cannot force the Feds to destroy their mug shots and
fingerprint records, and they will not.
I have tested the California governmental authorities after the
grant of a Factual Innocence order, and in my experience they do
comply, but in the event that years later someone remembers that
they saw you in court on a rape case, or saw your name in an
index, you will want that court order adjudicating you factually
innocent.
It is also possible to petition the governor for a pardon, but
as good as that might be, even guilty people are pardoned, so
the PFFI is perhaps the best relief possible. Therefore, if you
are actually innocent, you should never plead guilty just to
resolve the case. In the event of an acquittal, the judge trying
the case is in a good position to immediately render the finding
of Factual Innocence, if he or she seems sympathetic. |
