Expungement of a Criminal Conviction
By Paymon Z. Bidari at Bidari Civil Defense.
Expungement is a process by which a criminal record is sealed or destroyed.
Most criminal convictions may be expunged- removed from the record.
Qualifying Criminal Convictions:
- Misdemeanor convictions (with no probation or probation completion)
- Misdemeanor convictions (still on probation) only after making a request to terminate probation early. (California requires that probation completion prior to making any request for an expungement.)
- Felony convictions that didn’t require probation.
- Felony convictions (completed the probation), but no jail sentence to state prison.
- All fines, fees and restitution are paid in full-prior to requesting an expungement. (The court will not consider request for a dismissal unless all fines and fees are paid.)
- Current criminal situation. If still on probation for any other criminal offense (or if accused of committing a crime within the last preceding year,) will not be eligible for a dismissal.
Reducing Felony to Misdemeanor
- File a 17(b) motion with the court requesting the reduction from a felony to a misdemeanor conviction. A 17(b) motion refers to the California Code of Criminal Procedure.
- Wait to file the expungement paperwork until the court grants you the felony conviction reduction. If the judge fails to grant the reduction, you can’t file for an expungement.
Getting a “Certificate of Actual Innocence”
A Certificate of Actual Innocence is perhaps the most powerful form of expungement. This certificate does more than seal a prior record, it proves that a record should never have existed at all. Let’s say that Joe is arrested for vandalism for spraying buildings with graffiti, but the charges are later dropped. Or perhaps Joe is charged with vandalism, and he goes to trial and is found not guilty. In either situation, Joe might seek to obtain a certificate establishing that he was factually innocent of the offense.
Drug Crimes and Juvenile Offenses
In many jurisdictions, people who have been arrested or convicted for drug crimes and juvenile offenders may have an easier path to expungement.
Drug offenses. Many people arrested for drug offenses are eligible for diversion programs. These programs typically provide for the expungement of records following the satisfactory completion of a program.
Juvenile offenses. People who were arrested or convicted as juvenile offenders may have an easier time getting their criminal records expunged or sealed. Usually this is an option once the person reaches the age of 18, and they’ve otherwise stayed out of trouble with the law.
If granted by the court, Expungement allows a person who has been previously convicted of a misdemeanor or certain felonies to reopen their case and set aside the conviction, withdraw guilty plea, enter a plea of “not guilty”, and close the case without a conviction.
A pardon is the forgiveness of a crime and the cancellation of the relevant penalty; it is usually granted by a head of state (such as a monarch or president) or by acts of a parliament or a religious authority. Clemency means the forgiveness of a crime or the cancellation (in whole or in part) of the penalty associated with it. It is a general concept that encompasses several related procedures: pardoning, commutation, remission and reprieves.
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