EXPUNGEMENT, CERTIFICATE OF REHABILITATION, MOTION TO TERMINATE PROBATION, PETITION TO SEAL AND DESTROY ARREST RECORD AND OTHER WAYS TO CLEAN UP YOUR RECORD IN SAN DIEGO
Cleaning up your record after a criminal conviction is an important step in moving forward from your arrest or conviction. Having a criminal record can greatly affect employment opportunities, professional licenses, immigration status, school and more. If you have been arrested or convicted of a criminal offense in California, there is some available remedy to clean up your record. You may not be able to wipe the slate completely clean, but our office can quickly identify your needs and get to work on cleaning up your criminal history, giving you better odds with background checks.
1203.4 DISMISSAL / "EXPUNGEMENT" The most common remedy post-conviction that Californians use to clean up their criminal records is a dismissal (commonly referred to as "expungement") pursuant to Penal Code Section 1203.4. A dismissal is appropriate when a defendant has successfully completed probation in a misdemeanor or felony case. Those convicted of felonies and sent to State Prison do not qualify for a 1203.4 dismissal. Whether you want to get rid of an old DUI conviction, or serious felony, taking this step will likely impact your career and education prospects. Once a 1203.4 petition is granted, you can legally say that you have never been convicted of a crime, enough for most hiring practices. 17B MOTION TO REDUCE FELONY TO MISDEMEANOR Those convicted of certain felonies can petition the court to have the felony conviction reduced to a misdemeanor for all purposes, including gun rights and immigration purposes. Only some felonies, known as "wobblers" qualify for a 17B reduction. If the felony of which you were convicted can also be filed as a misdemeanor, then it is a "wobbler" and is eligible for a reduction. In all felony cases, it is important to have skilled, passionate representation who can try to help you avoid a felony conviction. An important part of plea bargaining for a felony defense lawyer is to attempt to resolve the case for a "wobbler" rather than a felony, allowing the defendant to later have the felony reduced to a misdemeanor and expunged. MOTION TO TERMINATE PROBATION Because a 1203.4 dismissal petition and 17B motion require that a convicted person be off of probation, it is important to discuss another very common motion: motion to terminate probation early. Probation grants in San Diego misdemeanor and felony cases are typically from 3-5 years. If you have compelling reasons to need to be off probation sooner, and have completed all that is required by the terms of your probation, you may be eligible to terminate your probation early. This motion can be run together with an expungement or 17B motion to reduce a felony to a misdemeanor. PROP 47 PETITION OR MOTION FOR RE-SENTENCING In 2014, California voters passed a law making all theft offenses of under $950 and all drug possession cases misdemeanors. Previously, many have been convicted of commercial burglary (PC 459) for shoplifting offenses, and many have received felony convictions and sentences for drug possession cases (HS 11350, HS 11377, HS 11357(a)). If you have a felony conviction for a theft of a small amount of property or for possession of cocaine, heroin, prescription medications, methamphetamine or concentrated cannabis, that felony has been designated a misdemeanor, and you can file a petition to have your record reflect that change of the law. CERTIFICATE OF REHABILITATION Felons sentenced to state prison may not apply for a 1203.4 dismissal. But this does not mean that a felon who served time in prison cannot take action to clean up their record. A certificate of rehabilitation can end sex offender registry requirements and restore gun rights. In order to apply for a certificate of rehabilitation, the defendant must have been off parole for at least seven years and not suffered any new convictions. The burden is on the petitioner to show rehabilitation. Those who served a probation sentence in a felony case may still apply for a certificate of rehabilitation after obtaining a 1203.4 dismissal. Additionally, a certificate of rehabilitation serves as an application for a Governor's pardon. PETITION TO SEAL AND DESTROY ARREST RECORDS If you were arrested for a crime, but never charged, the case was dismissed or you won your trial, you may be able to obtain the ultimate relief to clean up your record: having your arrest record sealed and later destroyed. In these cases, the petitioner must show, by clear and convincing evidence, that they were innocent of the arrestable offense. When a criminal charge is not filed, dismissed or the government failed to meet its high trial burden, that does not automatically mean that the defendant is innocent. Factual innocence petitions are brought under PC 851.8, and are very difficult to win. DETENTION LETTER If you cannot meet the burden of proving factual innocence, it is still possible to request that the law enforcement agency issue a letter or certificate indicating that there was no arrest, but rather a "detention" only. This will allow you to say, under oath, that you have never been arrested, and all records will reflect that there was no arrest. If you have been arrested or suffered convictions in the past, there is some way that you will be able to clean up your record. I hope that the information contained in this article was helpful to gaining an understanding of what kind of post-conviction relief is available, but please note that it is no substitute for a consultation with a San Diego Criminal Defense Attorney. Call the Law Offices of Nicholas Loncar now for a Free Consultation. 619-550-4422
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