Last Updated on October 15, 2024
A criminal conviction will remain on your record unless it is expunged under the law. However, thanks to a law that took effect in 2023, many people are eligible for the automatic expungement of their criminal records. This law even allows for many people who were sent to state prison after being convicted of a felony to have their record expunged, which wasn’t an option for most ex-felons in the past.
Most persons ineligible for automatic record expungement in California can still petition the court for one, allowing them to clear their name and truthfully answer that they do not have any criminal convictions on their record. Erasing crimes from your criminal record is an essential step in the rehabilitation process, as having a criminal offense on your record (especially a felony) may haunt you and make it more difficult for you to obtain work and housing. If you are interested in obtaining a record expungement in San Diego County, attorney Peter M. Liss can help you.
What Is an Expungement?
California Penal Code section 1203.4 (PC) allows persons convicted of most criminal offenses to petition the court to withdraw their guilty plea and have the case dismissed. If you have successfully obtained an expungement in San Diego, you are no longer legally required to disclose the conviction to prospective employers or landlords.
What Crimes are Ineligible for Expungement?
Those convicted of sex crimes against children will never qualify for an expungement. These offenses include statutory rape, lewd acts with a minor (aka child molestation), oral copulation with a minor, and sodomy with a minor.
Can Landlords Discriminate Against Those With a Criminal Record?
Legally, landlords cannot use a criminal conviction as grounds to refuse to rent to a tenant, regardless of the charge and whether or not the conviction was expunged. However, some landlords may still subtly discriminate without stating the reason they chose not to rent to someone. An expungement will help prevent your conviction from appearing on your record for a potential landlord to see.
Can Employers Discriminate Against Those With a Criminal Conviction?
Employers are not allowed to blanketly discriminate based solely on a criminal conviction, but they may avoid hiring a former offender if their conviction relates to the position. For example, if someone was found guilty of embezzlement, an employer could use this as justification not to hire them for an accounting position. If the conviction was expunged though, they cannot use this information regardless of whether the charge could be considered relevant to the position.
What Expungements Can’t Do
While expungements help you put your criminal past behind you, they do not erase that past. You must still disclose this information when applying for state licenses or teaching credentials, but, as of 2023, a conviction for possession of many controlled substances cannot be used against you when applying for a teaching credential. Additionally, if you apply for any public job, including a position as a peace officer, you must state that you have a conviction on your record.
An expungement will not help you recover your right to possess a firearm if it was lost due to your conviction. For example, if you were convicted of domestic violence or a hate crime. An expungement is the first step towards receiving a pardon for your crimes, which is the only way to restore these rights.
Having a crime expunged from your record can help you pass background checks and other investigations into your criminal past. However, this information is still available to the police and courts if you face any future legal matters. If you get charged with another crime, the expunged conviction will still count as a prior for sentencing purposes.
DUI Expungements
A DUI conviction will appear on your criminal record forever or until the incident is expunged. If the offense occurred after 2005, it will automatically be expunged, but convictions before that date require you to petition the court to clear your record. Because so many people are adamantly against driving under the influence, especially those who lost a loved one in a drunk driving accident, drunk driving convictions are some of the most critical offenses to have removed from your record. If you require a DUI expungement in San Diego, a lawyer can help review your case to see if you qualify.
Note that a drunk driving expungement does not apply to your DMV record, will not get your license back, and cannot eliminate your need for SR-22 insurance. A DUI conviction will stay on your driving record for 10 years regardless of whether the crime is expunged and will continue to count as a prior offense in criminal cases during this time. For this reason, it is critical anyone accused of this charge contacts a San Diego defense attorney to help you fight the DMV suspension within 10 days of an arrest for drunk driving.
Getting a Record Expungement in San Diego
A San Diego lawyer can help you better understand whether or not a conviction on your record can be automatically expunged and whether you meet the requirements for this to happen. You must meet a few conditions before you can begin the process. You must:
- complete your probation
- pay off any fines, restitution fees, and reimbursement charges
- NOT be currently facing criminal charges
- NOT be serving probation for another offense
If you have not completed probation, but there is a compelling reason to terminate probation early, a lawyer can petition to shorten probation, qualifying you for the expungement of your conviction.
Who Qualifies for Automatic Expungement?
Not everyone will qualify for automatic expungement. If the conviction occurred before January 1, 2005, you must petition the court to obtain an expungement. Those convicted of a felony will only become eligible for automatic expungement four years after serving their entire sentence (including probation). If they have been convicted of another felony offense in the past four years, they will become ineligible. Anyone convicted of a serious or violent felony will be ineligible for automatic expungement.
If your conviction cannot be expunged automatically, a lawyer can still petition the court to have the charges removed from your record as long as the offense was not a sex crime against a minor. Additionally, some people may qualify for an early expungement if their attorney can show they completed all the terms of their probation before the scheduled termination date.
What a San Diego Expungement Lawyer Will Do
First, a criminal defense lawyer can tell you whether or not you qualify for an expungement and, if so, if it will be automatic or require a petition to the court. If the process isn’t automatic but you still qualify, your attorney will file a petition with the court. The judge will determine if you are eligible. If you are found eligible, they will ask you to change your plea to “not guilty,” or, if you were found guilty at trial, they will set aside the verdict. Lastly, the judge will dismiss the case.
Juvenile Record Expungement in California
Practically every young person does something they later regret because they don’t have the life experience required to make the right choices when confronted with difficult decisions. This inexperienced decision-making is why the juvenile court system is based on reform rather than punishment. It is also why California automatically seals the records of most juvenile offenders sentenced after January 1, 2015.
Juvenile record sealing is more effective than expungement, as sealed documents can only be seen in rare, specific situations, even by police officers and employees of the court system. Most of these records will eventually be physically destroyed, so there will be no evidence of the offense —though this does not happen for cases involving violent or serious offenses.
Not All Juvenile Records are Sealed Automatically
Automatic record sealing only occurs after a minor has finished probation. It does not happen automatically in cases where someone was convicted of a violent offense like murder, rape, kidnapping, arson, or weapons crimes, or some serious drug crimes such as manufacturing. The law prohibits sealing for violent or other serious offenses until the offender turns 18. For violent and serious convictions, the prosecution, court, or probation agency may be able to view these documents if the individual is accused of another felony in the future.
Many offenses, including serious violent felonies or sex crimes that require registration as a sex offender, are ineligible for record sealing. Similarly, if a minor was charged in court as an adult, they cannot have their record sealed but will instead go through the same expungement process as an adult offender.
While those who qualify for automatic record sealing do not need to take further action, contact a San Diego criminal defense lawyer if you or your child was convicted of a violent or serious offense, did not fully complete probation, or was convicted before 2015. These circumstances require you to petition the court to have the documents sealed.
Benefits of Juvenile Record Sealing
The sealing of these documents also includes arrest reports. If a child was not made a ward of the court or was diverted from prosecution, this information may be sealed as well. When a minor has been ordered to register as a sex offender and is eligible for record sealing in California, doing so will eliminate their need to register in the future.
Can Adults Have Their Records Sealed?
Adults who are convicted of crimes are generally only eligible for expungement. However, under Penal Code 851.91 (PC), arrest record sealing is possible when someone:
- was arrested, but no charges were filed
- was charged, but the charges were dismissed
- completed a diversion program, and the charges were dismissed
- completed a deferred entry of judgment, and the charges were dismissed
- went to trial and was found not guilty
The arrest record will be sealed if a judge agrees to the petition. However, officials from government agencies, such as law enforcement officers, can still view any documents associated with the offense. You must also still disclose the arrest when applying for a state or local license, contracting with the State Lottery Commission, or applying for employment in a public job, including law enforcement.
In some cases, you may be able to have arrest records sealed and destroyed, but you must be able to prove your factual innocence under the law. Proving factual innocence can be difficult because you must convince a judge that there was no reason you should have been arrested. The only way someone convicted of a crime can have their record sealed is if the judge sets aside the conviction because they found the defendant to be factually innocent. Proving factual innocence is a complicated process that requires an experienced criminal defense attorney.
In your first free consultation, Peter Liss can evaluate your unique case so you will know if you can have your record expunged or sealed. If you have any questions about the expungement process in San Diego or would like to get the process started, please call attorney Peter M. Liss at (760) 643-4050.
