DUI Expunge

Offenses NOT Eligible For Expungement In California

Before you spend your time reading on, here are a list of offenses that are NOT eligible for expungement: Vehicle Code Section 42001(b) which includes sections 2800, 2801 and 2803; Penal Code Section 261(d), 286(c), 288, 288a(c), 288.5 and 289(j).

Additionally, if you were convicted of an offense that resulted in a State Prison sentence, you will similarly not be eligible for expungement, but may be eligible for a Certificate of Rehabilitation from the California Board of Prisons.

Offenses Eligible For Expungement In California

Aside from the excluded offenses above, your conviction is eligible for expungement if: 1) You were convicted of a misdemeanor and given probation: you complied fully with all of the requirements, including payment of all fines, restitution and reimbursement, and do not have any current criminal charges pending; or 2) You were convicted of a misdemeanor and not given probation, did not serve time in State Prison: it has at least a year since your conviction and you have paid all fines, restitution and reimbursement, have not been charged with any crimes and are living an honest and upright life and have obeyed all laws; 3) Were charged with a felony that was reduced to a misdemeanor and you are eligible under either 1 or 2 above.

Why Should You Apply For An Expungement?

There are several personal and professional reasons why someone would want to apply for an expungement. An expungement is not automatically granted, and will not be granted in the event that you have broken any law since you received your conviction, so the fact that your conviction is set aside proves to you and others that you have learned from your experience and have lived a law-abiding life since your conviction.

On a professional level, you can truthfully tell private employers that you have not been convicted of a crime. What’s more, California Labor Code §432.7 prevents employers from asking about any arrest that didn’t result in a conviction, inquiring about it from other sources or use it in a hiring decision.  Note that if you ever apply for a job with a public entity, or for a professional license, when asked if you were ever convicted of a crime, you will have to report “Yes, and my conviction was dismissed.” Again, the fact that your conviction was set aside will definitely reflect more favorably on your character and indicates that you have fulfilled the requirements necessary to have your conviction set aside.

Additionally, most Licensing and Certification agencies in California will not grant a license to someone who has been convicted of a crime. The same is true for Governmental jobs. However, if your conviction has been expunged, most Governmental licensing and hiring agencies (except police agencies) are required to treat you the same as if you were never convicted of the crime.

What An Expungement Can Do For You

An expungement will reflect that your conviction has been set aside. An expunged record cannot be used by private employers as a basis to deny you employment. Also, in the State of California, Government Employers (except for the police) and Licensing Agencies such as the Department of Real Estate, Board of Nursing, etc., will treat you the same as if you have never been convicted of a crime if your record has been expunged.

What An Expungement CANNOT Do For You

An expunged record can still be reviewed by a judge for the purposes of increasing your sentence if you are ever convicted of another crime in the future.  Also, an expungement does not wipe out your criminal record. Your criminal court file will not be physically destroyed, and is therefore searchable and is often discovered by private investigators and others who perform background checks. If your criminal court file is discovered, it will show that your conviction was set aside by the court. Accordingly, the Judicial Counsel of California advises that if you are asked by a private employer if you were convicted of a crime, you should answer “Yes, and the conviction was dismissed.” In the case of public employers and licensing agencies, you are required to answer that you have been convicted of a crime and that your conviction has been dismissed. Additionally, an expungement will not automatically grant you the ability to possess a firearm, nor will it restore any driving privileges that were revoked by the DMV due to the conviction. Similarly, an expungement does not restore your right to possess a firearm. Lastly, an expunged record does not relieve you of the duty to register as a sex offender if you are otherwise required to do so.

What If You Were Convicted Of A Felony?

If you were convicted of a felony and did not serve time in State Prison, you must first petition to have the felony reduced to a misdemeanor. If your petition is granted, you may then apply to have the conviction dismissed via expungement.

If your felony resulted in a State Prison sentence, you will not be eligible for an expungement; rather you may petition for a Certificate of Rehabilitation and Pardon.

Originally published here.

Troy Slaten, Esq. Drunkdriverlaw.com.Call (877) MR-CA-DUI

If you have been convicted of a crime in California, you or your legal representative may apply to have your conviction expunged under the California Penal Code Section if certain requirements are met.

If you have been granted probation and have not completed all the terms of your probation, you may still be eligible for expungement if your probation term is ended early pursuant to Penal Code Section 1203.3.

Why Should I Apply For Early Termination Of Probation?

Most people seek to apply for early termination of probation in order to have their criminal conviction expunged and set aside. There are a variety of reasons to have a criminal conviction expunged, such as when people apply for professional licenses in the State of California.

What Types of Convictions Are Not Eligible For Expungement?

Expungement depends on a variety of factors, including the nature of the offense, completion of probation, and whether jail time was required as a part of the sentence.  Some offenses are not eligible for expungement and include:conviction under

California Vehicle Code Section 42001(b) which includes sections 2800, 2801 and 2803; and
Penal Code Sections 261(d), 286(c), 288, 288a(c), 288.5 and 289(j).
Additionally, if you were convicted of an offense that resulted in a State Prison sentence, you will similarly not be eligible for expungement, but may be eligible for a Certificate of Rehabilitation from the California Board of Prisons and a pardon.

When Does Penal Code Section 1203.3 Apply?

Penal Code Section 1203.3 may be applied to for early termination of probation

You were convicted of a misdemeanor;
You were granted probation;
You completed your probation successfully to date;
You paid all of your fines; and
You otherwise completed the terms set forth by the Court.

What If You Had Problems Completing Probation?

If you had problems completing the terms your probation, applying for early termination of probation is probably not the best course of action, as your application will likely be denied. You may still try to apply for early termination and if your application is denied, you may apply again later when you have completed a larger portion of your probationary terms.

How To Apply For Early Termination Of Probation Under PC 1203.3?

You may apply for early termination of probation by contacting an attorney to prepare the documentation and file it for you, or you may go down to the courthouse where you received your conviction and ask for an early termination of probation packet. Make sure to have your case number and all of your personal information available to provide in the application. Certain fees and fines may apply and you may also apply for a fee wavier if you are unable to pay the fees.

What Is The Full Text Of Penal Code 1203.3?

(a) The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence. The court may at any time when the ends of justice will be subserved thereby, and when the good conduct and reform of the person so held on probation shall warrant it, terminate the period of probation, and discharge the person so held.

(b) The exercise of the court’s authority in subdivision (a) to revoke, modify, change, or terminate probation is subject to the following: (1) Before any sentence or term or condition of probation is modified, a hearing shall be held in open court before the judge. The rosecuting attorney shall be given a two-day written notice and an opportunity to be heard on the matter, except that, as to modifying or terminating a protective order in a case involving domestic violence, as defined in Section 6211 of the Family Code, the prosecuting attorney shall be given a five-day written notice and an opportunity to be heard.  (A) If the sentence or term or condition of probation is modified pursuant to this section, the judge shall state the reasons for that modification on the record. (B) As used in this section, modification of sentence shall include reducing a felony to a misdemeanor.  (2) No order shall be made without written notice first given by the court or the clerk thereof to the proper probation officer of the intention to revoke, modify, or change its order.  (3) In all cases, if the court has not seen fit to revoke the order of probation and impose sentence or pronounce judgment, the defendant shall at the end of the term of probation or any extension thereof, be by the court discharged subject to the provisions of these sections.  (4) The court may modify the time and manner of the term of probation for purposes of measuring the timely payment of restitution obligations or the good conduct and reform of the defendant while on probation. The court shall not modify the dollar amount of the restitution obligations due to the good conduct and reform of the defendant, absent compelling and extraordinary reasons, nor shall the court limit the ability of payees to enforce the obligations in the manner of judgments in civil actions.  (5) Nothing in this section shall be construed to prohibit the court from modifying the dollar amount of a restitution order pursuant to subdivision (f) of Section 1202.4 at any time during the term of the probation.  (6) The court may limit or terminate a protective order that is a condition of probation in a case involving domestic violence, as defined in Section 6211 of the Family Code. In determining whether to limit or terminate the protective order, the court shall consider if there has been any material change in circumstances since the crime for which the order was issued, and any issue that relates to whether there exists good cause for the change, including, but not limited to, consideration of all of the following:  (A) Whether the probationer has accepted responsibility for the abusive behavior perpetrated against the victim.  (B) Whether the probationer is currently attending and actively participating in counseling sessions.  (C) Whether the probationer has completed parenting counseling, or attended alcoholics or narcotics counseling.  (D) Whether the probationer has moved from the state, or is incarcerated.  (E) Whether the probationer is still cohabiting, or intends to cohabit, with any subject of the order.  (F) Whether the defendant has performed well on probation, including consideration of any progress reports.  (G) Whether the victim desires the change, and if so, the victim’s reasons, whether the victim has consulted a victim advocate, and whether the victim has prepared a safety plan and has access to local resources.  (H) Whether the change will impact any children involved, including consideration of any child protective services information.  (I) Whether the ends of justice would be served by limiting or terminating the order.

(c) If a probationer is ordered to serve time in jail, and the probationer escapes while serving that time, the probation is revoked as a matter of law on the day of the escape.

(d) If probation is revoked pursuant to subdivision (c), upon taking the probationer into custody, the probationer shall be accorded a hearing or hearings consistent with the holding in the case of People v. Vickers (1972) 8 Cal.3d 451. The purpose of that hearing or hearings is not to revoke probation, as the revocation has occurred as a matter of law in accordance with subdivision (c), but rather to afford the defendant an opportunity to require the prosecution to establish that the alleged violation did in fact occur and to justify the revocation.

(e) This section does not apply to cases covered by Section 1203.2.

Originally published here.