Expungement (Post-Conviction Dismissal)

Penal Code Sections 1203.4, 1203.4a, 1203.43

Having a criminal conviction on your record can have a devastating impact on your life. Most damaging perhaps, are the difficulties getting a job with a conviction on your record and immigration consequences. Penal Code sections 1203.4, 12034, 1203.4a, 1203.43 provide relief. Relief under these sections means employers cannot use this conviction against you and you can truthfully say “no” when asked if you have ever been convicted of a crime for job applications in the private sector. It also provides relief for many of the devastating immigration consequences.

Penal Code section 1203.4 allows an expungement of convicted misdemeanors and felonies where Penal Code section 1203.4a allows for expungement of certain infractions. Section 1203.43 allows expungement if you did a Deferred Entry of Judgment program.  

It is important to note that the word “expungement” is a misnomer. Your record is not being cleared. Instead your plea of guilty or no contest is withdrawn and the case against you is dismissed. While some post-conviction dismissals are not opposed, some cases require extensive work in order to convince a judge and prosecutor to allow you to have your case dismissed.

Eligibility – Who is eligible for a 1203.4 or 1203.4a dismissal?

There are certain convictions that require you only meet certain requirements for the relief to be granted. In other circumstances, however, there must be a hearing.  

In all cases, a person mus must certain requirements to qualify:

  1. A person must have successfully completed probation.

  2. Not currently charged with a new criminal offense or be on probation or serving a sentence for another offense.

  3. Prison must not have been granted at sentencing or as a result of a probation violation while on probation for the offense you are trying to expunge.

  4. The expungement is not automatic – the court will also consider other factors like a person’s criminal history, facts of the underlying case, and your performance while on probation. The court will also consider if there are particular circumstances that warrant relief like an application for a board certification or an opportunity to get a job.

Eligibility – Who is eligible for a Deferred Entry of Judgment dismissal?

Effective January 1, 2016, Penal Code section 1203.43 provides relief for the disastrous effects that a Deferred Entry of Judgment has for immigration purposes. If you successfully completed a deferred entry of judgment program, you entered a plea of guilty, finished a program (like AA classes or a more substantive drug program) and then the judge dismissed your charged. However, for immigration purposes, the courts still consider this a conviction even though your charges were dismissed.

Penal Code section 1203.43 allows you to withdraw your plea of guilty or no contest, enter a plea of not guilty, and then dismiss the charges – eliminating the immigration consequences. Anyone who successfully completed Deferred Entry of Judgment qualifies for this relief.

Timing – When can one petition for an expungement?

A person is eligible for expungement upon finishing probation or when a judge terminates probation early. The court and district attorney must be given fifteen days written notice before the hearing.

Benefits – What are the advantages to an expungement?

There are several benefits to getting your record expunged. Not only does it allow you to honestly say you have never been convicted of the dismissed offense, it prevents employers from discriminating against you because of the arrest or now dismissed offense. Other benefits include being able to earn certain professional licenses, state board licenses, be granted student loans, housing assistance, and it may help with immigration consequences. However, it will not restore your gun rights, overturn a suspension or revocation of your California Driver’s License, and your duty to register as a sex offender under penal code 290, or prevent the offense from being used against you as a prior in a later hearing.  

If you would like your record expunged or would like more information on expunging your record, contact Hamasaki Law today.

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