Expungement / Sealing Of Criminal Records
Most people convicted of a crime in California are the misconception that their criminal record can be “expunged” or “sealed”. Except in a very few cases, expungement or sealing does not exist in California. For the most part, the exceptions are simple possession of marijuana or transporting less than an oz. Records of these convictions are supposed to be destroyed after two years. A person who is declared “factually innocent” my have the record sealed. Generally, juvenile records are also sealed. A person who successfully a drug diversion program or a deferred entry of judgment program can have the record sealed.
What can be done? The penal code provides that after successful completion of probation, a defendant convicted of a misdemeanor, including DUI/DWIs, can petition the court to set aside the conviction and dismiss the complaint. With most felony cases, the procedure is to first reduce the charge to a misdemeanor (it the charge is one that can be reduced) and then have it dismissed. If the felony can’t be reduced, then the procedure is to simply dismiss. The effect of this is that the court record is not expunged or sealed. Instead, an extra entry, “dismissed” is made on the record. It still remains a public document.
A dismissal using this procedure does not relieve the person of all disabilities. For instance, if the charge was a felony or a misdemeanor that prohibited gun possession, the person cannot own a gun. A felony can still be used as a prior conviction by law enforcement. You should check with a lawyer to learn all the exceptions.
In most cases, you do not have to disclose the conviction to a private employer. By regulation, a private employer may not ask a job applicant about any misdemeanor conviction that is dismissed under this procedure. It is unclear whether this applies to a felony conviction.
A dismissal under this procedure has no effect on DMV. A DUI/DWI conviction still remains on the DMV driving record and can be used as a prior for 10 years. However, going through the procedure can be very helpful in seeking and maintaining employment and should be considered by anyone convicted of a DUI/DWI.
I have been a criminal defense attorney for over 40 years. Please call me at (925) 933-4500 or (1-866-BLKDUI) if you have any questions.
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