Expungement (Dismissal) of Criminal Records FAQ

 ( PC1203.4 / 1203.4a / 1203.41 )


  What is an expungement/dismissal?

  Who is eligible for a dismissal/expungement?

  What will a dismissal/expungement do?

  What won’t a dismissal/expungement do?

  How do I get a dismissal/expungement?

  How much does it cost to request a dismissal/expungement?

  Do I need a lawyer to file for a dismissal/expungement?

  What if I want a lawyer to assist me?

  How long does it take to get a decision from the court after the Petition for Dismissal is filed?

  Will there be a court hearing?

  How do I get older misdemeanor cases dismissed/expunged?

  If I have questions, who can I contact for help?

 

What is an expungement/dismissal?

An expungement (also called a “dismissal”) is a way of cleaning up your adult record that limits the information that shows up on a background check. It can also relieve you of some of the consequences of a conviction. 

It is important to understand, however, that a criminal record is not actually "expunged" under this statute.  That term implies complete erasure, as if the case had never occurred.  A more proper term is "dismissal."   What happens is the court re-opens your case, the “finding of guilt” (your guilty or no contest plea, or guilty verdict) is withdrawn, and a "not guilty" plea is entered.  The court will then dismiss your case.  The dismissal does NOT erase the offense from your criminal record, but it does change your record to show that the conviction was dismissed.  The dismissal does NOT seal the conviction from public view.  The conviction remains on your record for many purposes including sex offender registration and immigration consequences.  

Getting a conviction expunged hides the conviction from certain people (for example, some employers, some landlords, credit agencies) when they run a background check on you.  Most private employers are NOT allowed to see a conviction that has been expunged.  Additionally, most private employers CANNOT ask you about, or even consider, a conviction that has been expunged when you apply for a job.   Be aware, however, many times a court file still exists after an expungement.  Anyone who knows how to look for a court file may be able to find it.

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Who is eligible for a dismissal/expungement?

Convictions for certain crimes can never be expunged.  They are listed in the table below.  You may still be eligible for a Certificate of Rehabilitation even if you are not eligible for an expungement for one of these offenses.   For more information about the offenses listed below click here.  (In the “Code” drop down box select “PEN” for Penal Code or “VEH” for Vehicle Code.  In the "Section" box type the number from the table.)

Penal Code Section

Penal Code Section

Felony 261.5(d)

289(j)

286(c)

311.1

288

311.2

288a(c)

311.3

288.5

311.11

 

Vehicle Code Section

Misdemeanor convictions for VC § 2800, 2801, or 2803 insofar as it affects a failure to stop and submit to inspection of equipment or for an unsafe condition endangering a person.

 

YOU ARE NOT ELIGIBLE IF:

·    You are currently being prosecuted for any offense in any jurisdiction;

·    You are currently on probation (informal summary or formal), mandatory supervision, post release community supervision, or parole in any jurisdiction.  NOTE: You may be able to ask a judge for early termination of probation and then be eligible to dismiss/expunge the case;

·    You are currently serving a sentence in any jurisdiction;

·    You were sentenced to state prison for the conviction.  NOTE:  You may still be able to get a dismissal/expungement for cases for which you did not do state prison time.  Also, if you served prison time on a case where a Prop. 47 or Prop. 64 petition for a reduction to a misdemeanor was granted you may be eligible for a dismissal/expungement on that charge.  For felonies for which you served a state prison sentence, you may be eligible for a Certificate of Rehabilitation.

YOU MAY BE ELIGIBLE IF:

·    You were convicted of a misdemeanor or a felony and were granted probation (formal or informal probation).

          o   You must have completed all the terms of probation.

 

·    You were convicted of a misdemeanor and denied probation or you were convicted of an infraction.  

          o   You must wait for one year after your conviction before applying for dismissal/expungement. 

          o   You cannot be on probation or other type of supervision or be serving a sentence for any other case.  

          o   You must not be currently charged with any other offense.  (Penal Code §1203.4a)

 

·    You were convicted of a felony and sent to  local prison (a prison term served in county jail).

          o   You must wait one year after completing a “split” sentence before applying for a dismissal.  The one year starts after you complete all of your mandatory supervision in the community.

          o   You must wait two years after completing a “straight” sentence before applying for a dismissal. 

          o   You cannot be on probation or other type of supervision or be serving a sentence for any other case.

          o   You must not be currently charged with any other offense. (Penal Code §1203.41)

 

If you went to  state prison on the case, it cannot be expunged.  But, even if you went to state prison on a case, it is still possible to expunge other cases which you did not go to prison on.  Also, if you went to state prison on a case that was reduced to a misdemeanor under Prop. 47 or Prop. 64, you may be eligible to have it expunged.

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What will a dismissal/expungement do?

A dismissal/expungement will:

·    Result in a new entry in the court record showing the dismissal of the case;

·    Allow you to answer on many, but not all, job applications that you have not been convicted.  If you are applying for a government job or a job which requires a government-issued license, certificate, or permit, or a job which involves a security clearance, the conviction will be discovered -- in such cases, you should disclose the initial conviction and its later expungement.  Also, be aware a court file may still exist after an expungement.  Anyone who knows how to look for a court file may be able to find it.

·    Be seen as evidence of rehabilitation;

·    Make you eligible for a federal student loan if you were denied a federal student loan because of a drug conviction;

·    Prevent use of the conviction to impeach you if you testify as a witness, unless you are being tried for a subsequent offense.

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What won’t a dismissal/expungement do?

A dismissal/expungement will not:

·    Remove the conviction from your "Rap Sheet" - California and FBI criminal history records will still show the conviction and the later dismissal "per PC 1203.4";

·    Reinstate the right to possess firearms if it was taken away (in cases such as Domestic Violence) (reduction to a misdemeanor may accomplish this if the offense is not one of violence);

·    Remove the requirement to register as a sex offender per Penal Code § 290.  If the expungement is granted, registrants must then complete and file paperwork requesting a Certificate of Rehabilitation, when eligible.  A Certificate of Rehabilitation will relieve some sex offenders from further registration.  This is true for both felony and misdemeanor convictions;

·    Allow you to omit the conviction from applications for government issued licenses or public office;

·    Seal or otherwise remove the court case file from public inspection - anyone who knows where to look will be able to find the court case file;

·    Prevent the conviction from being used as a "prior" or "strike prior" to increase punishment on a subsequent conviction;

·    Prevent the conviction from being used for impeachment purposes on a subsequent offense;

·    Prevent the conviction from being considered and used to refuse or revoke government licenses and permits such as real estate sales licenses, teaching credentials, bus drivers licenses, security guard certificates, etc.; however, the expungement may reduce the weight given the conviction by the licensing agency;

·    Prevent the conviction from being used by ICE (Immigration) for removal and exclusion purposes.

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How do I get a dismissal/expungement?

The applicant must complete a "Petition for Dismissal" form for each case separately and submit it to the Superior Court where the conviction occurred for review and decision by the court.   Any supporting documents to show why the court should grant the dismissal/expungement must be filed with the Petition.   The Petition for Dismissal and supporting documents must also be served on the prosecuting agency.

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How much does it cost to request a dismissal/expungement?

The Court charges a fee for filing each dismissal/expungement petition.  The fee is currently $120 for each felony case and $60 for each misdemeanor or infraction case.  NOTE: If you cannot afford to pay the fees, you can request a fee waiver (meaning you do not have to pay the fees.) 

If you feel that you are unable to pay the court fees, you can file a "Request to Waive Court Fees," along with the petition.  Some courts also require a "Financial Declaration."  The Court will make a decision on waiving the fees on the case.

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Do I need a lawyer to file for a dismissal/expungement?

Not necessarily.  The Superior Court’s website contains helpful information about the expungement process for both misdemeanors and felonies.   The forms you need are on the website.   The local public law library also has resources to learn how to file for a dismissal/expungement. 

If you feel that you are unable to pay the court fees, you can file a "Request to Waive Court Fees," along with the petition. Some courts also require a "Financial Declaration."  The Court will make a decision on waiving the fees on the case.  You can file these forms yourself by filling out the forms online, printing them out, and mailing/taking them to the court address on the form.  

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What if I want a lawyer to assist me? 

While you do not need a lawyer, you may want one.  You may hire a lawyer or our office is able to help you at no cost.  Our experienced attorneys will review your entire record and determine what relief you are eligible for.  Some petitions for dismissal/expungement are more complicated and the judge needs to see additional information to help make a decision.  Our office can assist you by researching your record, determining if you owe fines/fees or restitution, writing petitions, motions and declarations, requesting fee waivers, filing petitions, motions, and declarations in court, serving the petition on the prosecutorial agency, and appearing in court, if necessary, to argue for the dismissal/expungement.

If you would like our office to assist you, fill out and submit the  Fresh Start Program Request for Assistance form. 

You may e-mail, fax, mail, or drop off your request form.    

Office of the Public Defender                      E-mail: Fresh.Start@sdcounty.ca.gov

Fresh Start Program                                   Fax:  (619) 338-4811 (Attn: Fresh Start Program)

450 B Street, Suite 900                               

San Diego, CA  92101

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How long does it take to get a decision from the court after the Petition for Dismissal is filed?

It depends on if your case is a felony or misdemeanor, which court house your case is being heard in, and if there is going to be a court hearing.  It can take anywhere from 30 days to 4 months or even longer if the court is really busy.

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Will there be a court hearing?

Most misdemeanor dismissals/expungements are handled without a court hearing.  The judge will make a decision just based on the documents and issue a court order. 

On felony cases there will be a court hearing and you will need to appear (unless we are representing you and you have given us written permission to make the appearance for you). 

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How do I get older misdemeanor cases dismissed/expunged?

Misdemeanor cases that are older than 5 years may be purged (destroyed) by the court at any time, depending on the charges.  In some cases, it can be less than that.  Just because the court has purged your file, does not mean the case is off your record.  If your original court file has been purged, it is more difficult to obtain an expungement.  You will need to order your criminal history report from the Department of Justice (DOJ) in Sacramento in order to proceed with an expungement.   For instructions on how to get your criminal history report click here.

Once you receive that report, you may forward a copy to our office to assist with the expungement.

Keep the original for your records.

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If I have questions, who can I contact for help?

Please call the Office of the Primary Public Defender at (619) 338-4700 and ask to speak to someone from the Fresh Start Program.  The Office of the Primary Public Defender will assist you even if you had an attorney from the Office of the Alternate Public Defender, a court appointed panel attorney, or you retained an attorney and now cannot afford to pay the attorney for assistance.  You may also e-mail a question to Fresh.Start@sdcounty.ca.gov

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