Types of Criminal Charges that can be Expunged

In California, expungement gives people a second opportunity by enabling certain offenses to be deleted from their records. Having a criminal record expunged can eliminate many problems, like difficulty finding housing or employment. Nevertheless, the criminal justice system is categorical about what crimes are eligible for expungement to prevent the abuse of the system. Continue reading to know what criminal charges are and are not expungeable.

Expungeable Misdemeanor Convictions

Many, if not all, misdemeanor convictions are expungeable per California law. This relieves ex-convicts of the stress of having a criminal record. Examples of misdemeanor charges that are expungeable include, without limitation:

• Shoplifting
• Simple assault
• Public intoxication
• Petty theft
• Battery
• Indecent exposure
• Drug possession
• Domestic battery
• Trespassing
• Disturbing the peace

Another common expungeable misdemeanor offense is possessing small quantities of narcotics. California statute often permits these crimes to be deleted. This is particularly true if the defendant completed a drug diversion program such as Proposition 36 or DEJ (Deferred Entry of Judgment). If you fail to complete the diversion program, the conviction may remain on your record.

If the court found you guilty of marijuana possession for personal use, you need not request an expungement. Under California law, all convictions of marijuana possession for personal use are automatically deleted from your criminal record after two years.

DUI is also expungeable under particular conditions. However, having multiple DUI offenses on your record might complicate the process.

To be able to expunge your misdemeanor conviction record, you must meet specific eligibility requirements. These include the following:

• You must have finished serving your probation or jail sentence (whichever the judge imposed). This includes completing any community service and paying all restitution and fines.
• You must not face any criminal charge or serve another sentence for another crime.

If you violated probation, you may still expunge your record. In this case, the judge would have the legal power to turn down or grant your request. Factors they would consider in doing so include your criminal history, the violation’s severity, and your overall performance while serving your probation sentence.

These eligibility requirements allow you a fresh start and enhance your general quality of life. Knowing them will help you know whether or not you can start the expungement process.

However, satisfying the eligibility requirements does not guarantee expungement of a criminal charge. The judge will weigh factors, such as your conduct since your conviction and criminal history. A record expungement lawyer can assist in representing your case in the best light. Doing so will increase your odds of having your record expunged.

Expungeable Felony Convictions

Expunging felony records is more complicated. However, California allows particular felony offenses to be deleted under given conditions. In general, non-violent felony violations are highly likely to qualify for an expungement compared to violent felony crimes. Theft crimes and certain drug-related felony offenses, for example, may be eligible for an expungement if you have served your probation or jail sentence and do not presently face any criminal charge or serve another punishment for another crime.

That said, to qualify for an expungement of a felony offense, the judge must have sentenced you to jail or formal probation, and you must have successfully served that sentence. If the judge sentenced you to prison, you may not qualify for an expungement. Or, for you to qualify, you may have to take further steps. For example, you might have to acquire a Certificate of Rehabilitation before seeking an expungement.

Like misdemeanor cases, a judge has the legal discretion to grant your expungement request for your felony conviction if you violated probation. During the court proceeding on this issue, some factors the judge might consider include the following:

• How severe the probation violation was
• The severity of the underlying conviction
• Your general performance while on probation
• Your criminal record
• Any further evidence showing why you deserve an expungement, like the opportunity to secure good employment, support for your family, and strong ties to the community

If you were convicted of a felony wobbler, your lawyer may successfully lower it to a misdemeanor, then go ahead and request an expungement. An erased misdemeanor is better than a deleted felony, since you might preserve specific benefits that could be withdrawn for convicted felons.

Note that the fact that a crime qualifies for expungement does not mean you can expunge right away. The process for expunging a criminal charge can vary substantially depending on the facts of the case. Several factors can influence your qualification to expunge a conviction record. These include the following:

• How long has it been since the criminal conviction occurred
• Whether you finished serving your sentence successfully
• Whether you have unresolved criminal charges

Criminal Charges Expungeable Per Prop 47 Realignment

If the judge sentences you to prison, you might still expunge your conviction record if they had sentenced you to jail if the offense had happened after 2011’s Prop. 47 realignment law. According to this exception (described under PC 1203.42), a judge can grant your expungement request if:

• They believe it would serve the interests of justice
• Your offense is presently punishable by jail
• At least two years have elapsed since you finished serving your sentence
• You are not
• On probation for any crime
• Serving time for any crime
• Under supervised release for an offense
• Accused of committing any offense

To apply for a record expungement under PC 1203.42, you would petition the court in person, via a lawyer, or through a probation officer authorized in writing. The court might either:

• Allow you to withdraw your no contest or guilty plea, then enter a not guilty plea, or
• Set aside the guilty verdict if you were convicted after pleading not guilty.

In either case, the judge will then dismiss the charges against you. Then, it would be as if you had a regular expungement per PC 1203.4.

Expunging Federal Criminal Charges

Expungement is generally unavailable for federal crimes. However, there is one little exception to this rule. Minor federal drug crimes are expungeable under 18 U.S.C. 3607(c).

If a federal court convicts you of a crime under section 404 of the Controlled Substances Act or a crime described under that section, you may successfully have your record expunged. This law applies to simple drug possession. If you were below 21 years when you were convicted for simple drug possession and do not have any past conviction for a narcotics crime, you may qualify to have your record expunged.

An alternative to expunging a federal crime is requesting executive clemency or a presidential pardon. You may request a pardon from the president in a federal case. Generally, this is only possible if you have completed your sentence, taken responsibility for your actions, and are now a productive member of society. A presidential pardon does not result in erasing a federal criminal record. However, it may restore some of the civil rights you lost due to your federal conviction.

After a successful misdemeanor or felony expungement, the conviction, prosecution, and arrest record will still exist. However, a notation in the court file, FBI files, and California Department of Justice records should indicate the new case dismissal and not guilty plea.

Another thing to note is that once you have expunged either your misdemeanor or felony conviction record, you can confidently state you have never been found guilty or sentenced for that violation. This can significantly improve your relationships and unlock employment opportunities. Also, once you have expunged a record:

• The police or prosecution cannot use it to contest your credibility as a witness in court. The one exception is if you are the accused person facing prosecution in the subsequent case.
• An employer is prohibited from discriminating against your job application because of that record.
• You may be able to avoid some immigration repercussions, like removal.
• You will face no barriers to traveling to Canada.

Other advantages of expunging a criminal charge include the following:

• A wide range of housing options. Landlords might deny house hunters the opportunity to rent a house or an apartment because of their criminal history. Expunging your conviction record can enhance your odds of obtaining housing. This could result in improved living conditions.
• Enhanced employment prospects. Expunging a criminal charge can improve or unlock job opportunities. Employers usually conduct criminal background checks. If the background checks show no crimes on your record, it can make you a more attractive candidate.
• Restoration of civil rights. Expunging your conviction record can restore particular civil rights. These include your civil right to vote. The restoration of these rights will significantly affect your life.
• Improved social opportunities. Having a clean criminal record can enhance your social life. It can eliminate the stigma attached to a conviction, resulting in better community involvement and relationships.

It is essential to remember that expungement will not erase the criminal conviction from police records; it simply removes it from public access. It is usually impossible to request that police records be altered. You also do not want to do that because they can be helpful when you have been unfairly charged or convicted. An expungement will also not:

• End your duty to register as a sex offender
• Restore your right to bear arms
• Overturn your driver’s license suspension or revocation

Also, courts may still utilize the expunged record as a past conviction for sentencing enhancement. For example, if you expunged a DUI conviction record, it will still be deemed a prior if you are later convicted for another DUI offense. The same applies to strike offense.

Non-Expungeable Crimes

Despite California law allowing expungement, certain violations remain unqualified. Serious felonies (PC 1192.7d) and violent felonies (667.5 PC), for example, sex offenses, murder, homicide, and other violent offenses, are not expungeable. Felony convictions that involve moral turpitude are also generally ineligible for expungement. Also, if the judge convicted you of an offense and imposed a prison sentence against you, an expungement may not be an option. However, other factors could influence the process on a case-by-case basis.

Specific sexual crimes are also exempt from expungement qualification. These include those requiring sexual offender registration per PC 290. This can substantially impact ex-convicts seeking to clear their criminal records and reintegrate into society. Crimes against minors are also generally non-expungeable.

Examples of specific crimes non-expungeable under California law include the following:

• Rape (PC 261). Rape refers to using threats, fraud, or force to engage in non-consensual sexual intercourse with someone else.
• Murder (PC 187). This is the illegal killing of a fetus or human being with malice aforethought
• Certain child pornography crimes. Child pornography refers to sending, transporting, duplicating, printing, advertising, or possessing child pornography, or hiring or persuading children to engage in making pornographic images.
• Sodomy against a minor (PC 286c). Sodomy is any contact between one person’s penis and another’s anus. It is a legal act under California law unless one of the parties is below 18, incapable of consenting, incarcerated, or compelled into the act.
• Oral copulation with a minor (PC 288a). Oral copulation refers to any contact between one person’s mouth and the anus, vagina, or penis of another. If one of the parties is a child below 18 years, then it becomes oral copulation with a minor.
• Lewd acts with a minor (PC 288). This crime is defined as any touching of a minor under 14 years for sexual purposes.
• Statutory rape (PC 261). Statutory rape refers to having sex with anybody who is not your spouse and the person is younger than eighteen years old.
• Robbery (PC 211). California law defines robbery as the felonious taking of personal property in another’s possession, from their person or immediate presence, and against their will, accomplished through fear or force
• Annoying or molesting a child (PC 647.6). You commit molestation when you touch a minor under 14 years for sexual arousal purposes, either for you or the minor.

You cannot expunge these crimes from your criminal record even if you have successfully served your probation or jail sentence (if applicable). That means you will always be deemed a felon.

Other legal remedies may be available if an offense does not qualify for an expungement. Sentence modifications, pardons, or record sealing may be an alternative post-conviction relief option. Consulting an experienced criminal defense lawyer can help you understand what legal option to pursue to obtain relief.

Waiting Period Before Petitioning for an Expungement

If you were sentenced to probation, you need not wait before petitioning for an expungement. You can file your petition right after you finish serving your probation sentence. Convictions where defendants participated in county hand crews or conservation camps also do not have a waiting period. However, there is a waiting period if probation was not involved.

Generally, one year must have elapsed from the misdemeanor conviction date before petitioning for expungement if probation was not part of your sentence. This waiting period ensures you have successfully fulfilled any other legal obligation, such as community service or fines, before filing your petition.

If you were convicted of a felony and the judge imposed a jail sentence, you must wait one year to petition if your sentence included mandatory supervision. If your conviction did not include compulsory supervision, you must wait for two years before petitioning.

If you were convicted of a felony and the judge imposed a prison term, you must wait two years from the date you completed serving the prison term to petition. This waiting period only applies to the felonies that led to a prison term and qualify for an expungement.

Expungement vs. Record Sealing vs. Pardon

There are differences between record expungement, governor's pardon, and record sealing. Expungement deletes a conviction record from a person's criminal record. It makes it appear as though the conviction never occurred. If you expunge your conviction record, you can honestly state you have not been found guilty of that offense. However, specific government bodies could still access and view the individual’s criminal record.

Sealing a conviction record means concealing it from the general public’s view or access. The record will still exist, but most landlords or employers will not access it. Juvenile violations are frequently sealed. Record sealing protects a person's privacy while keeping the records for specific reasons or purposes.

A pardon is usually defined as forgiveness for an offense. It does not delete the conviction. However, it can restore specific rights. The president or governor grants pardons. Pardons are less prevalent and are generally reserved for exceptional cases.

Find an Experienced Record Expungement Attorney Near Me

Criminal charges and convictions, especially those ending in a felony, may feel like a noose around your neck. The good news is that not all crimes and convictions must follow you into your future. An expungement can be an ideal way of obtaining post-conviction relief, enabling you to have a fresh start and move forward flawlessly.

At California Criminal Lawyer Group, we will help you explore your eligibility for expunging your misdemeanor or felony conviction. If you are an eligible candidate, we will help you navigate the process, ensuring the best possible outcome. If you do not, we can recommend other post-conviction relief options you qualify for that can help you integrate into society easily. Call us at 408-622-0204 for a consultation if you were convicted in San Jose, CA.