Legal Question in Criminal Law in California

What type of lawyer is need to get a felony (with no hard time served) expunged and how do we go about getting it done? Do we contact the courrts or what? How do we start? What is the cost to do this?

Thanks


Asked on 3/19/10, 3:10 pm

2 Answers from Attorneys

Robert Marshall Law Office of Robert L, Marshall

You may be able to handle a so-called "expungement" yourself. Most court clerks have a "1203.4 packet" which you can buy for less than ten dollars. It contains all the necessary forms and instructions. The court can charge you up to $120 to cover the cost of the hearing.

Some misdemeanors, commonly known as "wobblers," can be reduced to a misdemeanor, which has many additional benefits and can be done at the same time.

Under Penal Code §1203.4, a person who is granted probation can apply to have the case dismissed after probation is complete. This is sometimes called an expungement, but it doesn't really expunge anything or seal your record. The conviction is still a part of the court's public records, which will also show the case was dismissed. You still must disclose the conviction when applying to be a police officer or for certain other jobs, or if asked on an application for a state license or to run for public office. It will not remove any restrictions on your right to own a firearm or relieve you of the requirement to register as a sex offender. The conviction can still be considered a prior offense; for instance, a prior theft conviction could make any future petty theft a felony, or a prior DUI conviction could be used to increase the punishment in subsequent DUI convictions.

BEWARE of law firms that promise to "clear your record" and charge thousands of dollars. The process of filing a Penal Code §1203.4 petition is pretty simple, and you can do it yourself with forms available from the court clerk's office, especially if you completed probation without any problems. If you had a probation violation along the way, you may want an attorney's help, but the guys who charge thousands to file simple paperwork will probably overcharge you for that, too.

Please understand that this is a general discussion of legal principles by a California lawyer and does not create an attorney/client relationship. It's impossible to give detailed, accurate advice based on a few sentences on a website (and you shouldn't provide too much specific information about your legal matter on a public forum like this site, anyway). You should always seek advice from an attorney licensed in your jurisdiction who can give you an informed opinion after reviewing all of the relevant information.

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Answered on 3/24/10, 5:12 pm
Terry A. Nelson Nelson & Lawless

Many convictions can sometimes be 'expunged' by proper application and Motion to the court, but only if there was no prison time served or even sentenced, if it was not for certain sex and Domestic Violence crimes, if all terms of sentencing and probation [and at least one year of probation] are completed and finished, and if there are no new charges pending. If successful, the conviction would be retroactively withdrawn and the charges dismissed. That does not 'remove' the conviction, but merely changes the record to show 'conviction reversed and dismissed by expungement'. If expunged, you would be able to say 'no' to conviction on most private employment applications. However, the conviction is still a 'prior' for purposes of repeat offense, and must be disclosed on any application for government and professional licensing, bonding, security clearance, etc. The agency and employer then can decide whether you are barred from employment because of your conviction. The Labor Code bars employers [not others] from asking about arrests without conviction, or seeking that info from other sources, or using that info to deny employment. Private parties are not supposed to be able to access the records, but like all rules, there are ways around it. If you’re serious about doing so, and you think you qualify, feel free to contact me for the legal help you'll need.

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Answered on 3/24/10, 6:21 pm


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