Expungement
Criminal record “expungement” can convert a conviction into a dismissal.
California Labor Code section 432.7 says that an employer cannot ask someone applying for a job for information about an arrest or detention that did not end in a conviction. Also, an employer cannot ask about a referral to or participation in any diversion program.
An employer is also not supposed to look for any record of arrest (from any source) that did not end in a conviction. If this information comes to the employer’s attention, the employer cannot use that record as a factor in hiring, promoting, or terminating that person. But this same code section says that the employer may ask an employee or someone applying for a job about an arrest for which he or she is out on bail or released on his or her own recognizance pending trial. A “conviction” includes pleas, verdicts, or findings of guilt.
What is an expungement?
Although it is commonly known as criminal record expungement, the more proper term is dismissal. The conviction remains on your record for many purposes, including sex offender registration and immigration consequences. What the statute provides is, except as elsewhere stated, the defendant is “released from all penalties and disabilities resulting from the offense.” There are numerous limitations to this relief.
An adult who was granted probation, completed all the terms of probation, and is no longer on probation, is eligible for relief under this statute. He or she must not be on probation, or serving a sentence, for any other offense, anywhere.
If you were denied probation, you can still obtain an expungement. You still cannot be on probation or serving a sentence for any other case. Applicants must wait for one year after their conviction before applying for expungement.
What are the effects of expungement / dismissal?
It Will:
1. Result in a new entry in the court record showing the dismissal of the case.
2. Allow you to answer on many, but not all, job applications that you have not been convicted. If, however, 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.
3. Prevent use of the conviction to impeach you if you testify as a witness, unless you are being tried for a subsequent offense.
4. If the conviction was for a felony, expungement is the first step in obtaining a pardon.
It Will Not:
1. Remove the conviction from your “Rap Sheet” – California and FBI criminal history records will still show the conviction and the later dismissal.
2. Reinstate the right to possess firearms if it was taken away (reduction to a misdemeanor may accomplish this if the offense is not one of violence).
3. Remove the requirement to register as a sex offender per PC290. 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 specified sex offenders from further registration. This is true for both felony and misdemeanor convictions.
4. Allow you to omit the conviction from applications for government issued licenses.
5. 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.
6. Prevent the conviction from being used as a “prior” or “strike prior” to increase punishment on a subsequent conviction.
7. Prevent the conviction from being used for impeachment purposes on a subsequent offense.
8. 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.
9. Prevent the conviction from being used by INS for removal and exclusion purposes.
This information only deals with criminal convictions obtained in California. Other states, the military, and the federal government may have similar procedures, but you must check with those agencies to find out what is required.
Questions?
If you have questions about your particular situation, please contact: