|
What is Criminal Record Expungement?
Expungement encompasses a number of processes that provide varying degrees of relief from the adverse effects of an arrest or conviction, including relief from inaccurate or incomplete arrest records or the dissemination and use of arrest records outside the criminal justice system to deny the former arrestee business or professional licensing, employment, or similar opportunities for personal advancement. The relief sought may include a general release from penalties and disabilities resulting from the criminal record, sealing the record from public view, or the actual destruction of the record.
Some statutes governing expungement result in dismissal of the accusatory pleading against the defendant and release him or her from all penalties and disabilities resulting from the criminal record. However, in actual practice, the effects of a dismissal and release are often severely restricted. Often, they are limited to reinstitution of voting rights, relief from criminal registration statutes, or relief from impeachment, except when testifying as a criminal defendant.
Many expungement statutes offer a broader scope of relief for a relatively narrow class of people. They provide for the sealing of a person's criminal records from the public and, in two cases, provide for both the sealing and the later destruction of the records. In addition, under the California Criminal Record Purge Program, the California Department of Justice voluntarily destroys criminal records in its files after they have been retained for requisite periods of time.
Qualification for Expungement
Under Penal Code Section 1203.4, a person must be released from penalties and disabilities resulting from conviction in any case in which the person has been granted and successfully completed probation, by either fulfilling the conditions of probation for the entire period, which includes specifically the full payment of restitution or fines imposed as a condition of probation, or being discharged before the end of the probation period. The court has discretion to do so in the interests of justice in other probation cases. The court does not have discretion to do so if the defendant served a sentence in prison on a felony conviction, or if the defendant was found not guilty by reason of insanity.
An applicant is not eligible for expungement if he or she is serving a sentence or is on probation for any offense, or if he or she is charged with the commission of a crime. Certain sex offenses, certain misdemeanor provisions of the Vehicle Code, and infractions are exempt from this rule. The burden is on the applicant to prove that the probation requirements have been fulfilled, unless he or she has previously been relieved from probation restrictions.
Procedure
The person must be informed in his or her probation papers of the right of release, and of the right to petition for a certificate of rehabilitation and pardon. . . . The petitioner must be allowed to withdraw any plea of guilty or nolo contendere, or a guilty verdict must be set aside at any time after probation ends. The court must dismiss the accusations or information against the petitioner and release him or her from all but certain penalties or disabilities resulting from the underlying offense.
The petitioner may be required to reimburse the county and city for the actual cost of services rendered, whether or not the petition is granted and the records sealed or expunged, up to $120. Ability to pay will be determined by the court using the standards of Penal Code Section 987.8(g)(2), and is not a prerequisite to eligibility for the requested relief.
Effect of Release From Penalties and Disabilities
The relief offered by a release from penalties and disabilities is limited to immunity from impeachment in a subsequent action, and the reinstitution of voting rights, the right to inform people that the conviction was dismissed, and probably the right to avoid impeachment in court as a witness (except a defendant-witness). Other consequences of conviction are not avoided when the person is released from penalties and
|
|
