In California, the process of expunging or clearing a criminal record is usually called "dismissal," because the case is reopened and the criminal conviction is dismissed. For legal purposes, if your conviction is dismissed, it is as though you never committed the crime. Your record will be changed to reflect the dismissal, and you usually do not have to disclose that you were convicted -- for example, when applying for a job. In fact, it is illegal for most employers in California to ask about an arrest that did not result in a conviction or conviction that was later dismissed (expunged). There are exceptions, such as for jobs with police departments or other criminal justice agencies, or positions that require access to drugs or firearms. (Cal. Pen. Code, § 1203.4; Cal. Lab. Code, § 432.7.)
Below are the circumstances under which an arrest or conviction may be cleared in California.
If You Weren't Convicted, Can You Clear Your Arrest Record?
Although most employers are prohibited from asking about arrests that do not result in convictions, you may still want to have your arrest record sealed. You record qualifies for sealing only if you can prove that you were “factually innocent” of the charged crime. (Cal. Pen. Code, § 851.8.) You must prove that there were no reasonable grounds to arrest you in the first place; the fact that you weren’t convicted doesn’t establish your innocence. If you believe that you may qualify for a declaration of innocence, you will need the help of an attorney to make your case.
Is Your Conviction Eligible for Dismissal?
You can petition for a dismissal if you were convicted of an infraction, misdemeanor, or felony and received any combination of:
county jail time
Your conviction will not be dismissed if you are currently charged with, on probation for, or serving a sentence for another offense. You are also not eligible for a dismissal if you have committed a sex crime against a minor, or certain offenses under the California Vehicle Code. (Cal. Pen. Code, § 1203.4.)
Finally, if you were sentenced to state prison or transferred to the authority of the California Department of Corrections and Rehabilitation, your conviction is not eligible for a dismissal. Under those circumstances, you may instead request a Certification of Rehabilitation (a court order declaring that a person has been rehabilitated) and pardon from the governor. (Cal. Pen. Code, §§ 4852.01-4852.21.) Neither a Certification of Rehabilitation nor a pardon erases or seals a criminal record.
"Vacating" a Conviction When Immigration Consequences Not Explained or Defendant Has Evidence of Actual Innocence
As of January 1, 2017, certain criminal defendants who have served their sentences may go back to court and ask that their convictions be "vacated." If the request is granted, the court will withdraw their guilty or "no contest" pleas and the case will start over. This opportunity is available only to defendants who can show that they did not meaningfully understand the immigration consequences of their pleas, or that evidence of newly discovered innocence requires that the conviction be vacated. Vacating a conviction is not the same as sealing or expunging the court record; instead, it takes the parties back to the point of arraignment, and the case will proceed from there.
When Can You Petition for Dismissal of Your Conviction?
You have completed probation or obtained early release. You may petition for dismissal if you have satisfied all the conditions of your sentence. (Cal. Pen. Code, § 1203.4.)
You were convicted of an infraction or misdemeanor and never received probation. You may petition for dismissal if you have satisfied all the conditions of your sentence. (Cal. Pen. Code, § 1203.4.)
You were convicted of a felony and you have completed probation or county jail time. You may file a petition to get your felony conviction reduced to a misdemeanor. (Cal. Pen. Code, § 17(b).) After that, you can petition to have your misdemeanor conviction dismissed. (Cal. Pen. Code, § 1203.4)
You were convicted of another offense, and the court agrees to dismiss it. The following offenses may be dismissed if you can convince the court that a dismissal is in the interests of justice:
Convictions for which you did not complete probation or obtain an early release, if you have otherwise met all the conditions of your sentence -- such as paying fines and restitution.
Convictions under California Vehicle Code section 12810(a)-(e), if you have satisfied all the conditions of your sentence.
(Cal. Pen. Code, § 1203.4.)
You have completed a diversion program. After successful completion of a diversion program, your record will show a dismissal.
You were charged with possession of marijuana. You may not need to petition for dismissal if you were convicted of possession of marijuana for personal use. Such convictions, if entered after January 1, 1976, should be erased from your criminal record after two years. Note that this does not include convictions for growing, selling, or transporting marijuana. (Cal. Health & Saf. Code, § 11361.5.)
In 2016, transportation of any amount of marijuana for personal use -- that is, not for sale -- was downgraded from a felony to misdemeanor possession. However, the statute is not retroactive, so it's doubtful that someone with a pre-2016 felony conviction for transporting marijuana could argue that the offense should now be regarded as a misdemeanor, making the defendant eligible for a dismissal. (Cal. Health & Safety Code, § 11360.)
Contact Us for an Expungement Today
A criminal record can make life more difficult in many ways. It can make it harder to obtain a job, qualify for a professional or business license, rent an apartment, or pass a credit check. Having your record cleared can make it easier to move on with your life. To learn more about having your conviction dismissed, contact criminal defense attorney Benjamin Hampton at the Hampton Law Group today.