Under California Penal Code 1203.4 PC, expungement allows a defendant to:
- withdraw a plea of guilty or no contest;
- reenter a plea of not guilty; and
- have the case dismissed.
When granted, the expungement will release an individual from virtually all the “penalties” against them associated with a conviction. For instance, if an individual has obtained an expungement:
- an employer may not discriminate against them based on expunged convictions;
- the expunged conviction may not be used to impeach someone’s credibility as a witness in court (unless the individual is the defendant being prosecuted in the subsequent case); and
- the expungement may help to avoid certain immigration consequences like deportation.
(If you are interested in obtaining a copy of your criminal record in California for your personal reference, visit this website).
There are several limitations on what an expungement can do, however. In particular, an expungement cannot:
- overturn a driver’s license suspension or revocation;
- restore California gun rights under Penal Code 29800 PC (California’s felon with a firearm law); or
- end the duty to register as a California sex offender under Penal Code 290 PC.13.
Additionally, while expunged convictions may not need to be disclosed to public individuals like employers, they may still be used as prior convictions by the court to enhance sentencing. In other words, an expunged DUI conviction will still count as a prior.
Who Is Eligible for Expungement in California?
Penal Code 1203.4 PC allows the expungement of a misdemeanor or felony offense if the applicant:
- successfully completed felony or misdemeanor probation; and
- is not currently charged with, on probation for, or serving a sentence for a crime.
Note that an individual successfully completes probation when they complete all the terms of their probation (e.g., paid all fines and restitution, completed required counseling programs and community service, etc.), as well as attend all required court appearances and do not commit any new crimes while on probation.
What Crimes Cannot Be Expunged?
Any individual who violates the above terms will not be eligible for expungement. Additionally, a person convicted of certain sex crimes involving children are also ineligible for expungement, such as felony offenses for:
- sodomy with a child (Penal Code 286(c) PC);
- lewd acts with a child (Penal Code 288 PC);
- oral copulation with a child (Penal Code 287 (c) PC); and
- statutory rape (Penal Code 261.5(d) PC).
The only form of post-conviction relief available to ineligible individuals is a Certificate of Rehabilitation and/or the California governor’s pardon, or the commutation of a California prison sentence.
Applying for Expungement
Eligible individuals may seek expungement by petitioning the court either upon the completion of probation or early termination of probation granted by the court, whichever is earlier.
Upon receiving the application for expungement, the court may then either permit the defendant to withdraw their plea of guilty or no contest and enter a plea of not guilty or set aside the guilty verdict if the defendant was convicted after a plea of not guilty. Either way, the court will dismiss the accusations against the defendant, and their record will be officially expunged.