When are you eligible for a dismissal?

You are eligible for dismissal of a conviction, and the court will dismiss your conviction, if:

• You received probation for that conviction and:

1. You successfully completed probation or obtained early release;
2. You also have paid all the fines, restitution, and reimbursements ordered by the court as part of your sentence;
3. You are not currently serving another sentence or on probation for another offense; AND
4. You are not currently charged with another offense.

• You never received probation and:

1. Your conviction was a misdemeanor or an infraction;
2. It has been at least 1 year since the date you were convicted;
3. You have complied fully with the sentence of the court;
4. You are not currently serving another sentence;
5. You are not currently charged with another offense; AND
6. You have obeyed the law and lived an honest and upright life since the time of your conviction

You are eligible for a dismissal and the court has the discretion (meaning that the judge can decide to grant or deny your petition) to grant you that dismissal if:

• You received probation but you did not get an early release, did not fulfill all the conditions of probation, or were convicted of any offense listed in Vehicle Code section 12810(a) to (e) BUT:

1. You have paid all the fines, restitution, and reimbursements ordered by the court as part of your sentence; AND
2. You are not currently charged with, on probation for, or serving a sentence for any other offense.

• It is up to the court to decide if your conviction should be dismissed, so make sure to give as much helpful information as possible to convince the court that granting you a dismissal is in the interests of justice. This is why it is wise to include a declaration along with the petition that explains how you have changed.  You should provide specific examples that occur after your conviction that show how you have learned from the conviction, how the conviction has changed your behavior and why such conduct that led to the conviction will not reoccur in the future.

Convictions not eligible for dismissal

If you were convicted of any of the following offenses, you are not eligible for the relief of a dismissal under Penal Code section 1203.4a :

• Any misdemeanor within the provisions of Vehicle Code section 42002.1 ;
• Any infraction within the provisions of Vehicle Code section 42001 ;
• Any violation of Penal Code section 286(c), 288, 288.5, 288a(c), or 289(j) ; or
• A felony under Penal Code section 261.5(d) .

What is “record clearance” and how does it work?

The legal term for this process is “expungement.”  Regardless of the name, the process involves a person, called the “petitioner”, who must file a document, called a petition, with the court branch of the county where the conviction occurred.  The petitioner will also typically file two other documents, a declaration and an order.  A declaration explains why the judge should grant the petition.  An order is the document that the judge would sign if he/she grants the petition.

The person would send by mail or deliver in person the appropriate documents to the clerk of the court of the county where the conviction occurred.  A judge will review the documents.  The person may or may not have to come to court.  Once the judge reviews the documents, the judge will make a decision to either grant or deny the petition.
If the petition is granted, then we get to the point of discussing “record clearance” and how this concept works.  The judge, if the petition is granted, will order that the plea of guilty be replaced with a finding of not guilty.

Here’s the technical explanation of “record clearance”: when you are petitioning for a dismissal, the court, upon proper motion, may withdraw your guilty or no contest (nolo contendere) plea, or verdict of guilt if you went to trial, and enter a not guilty plea. Then the court will set aside and dismiss the conviction. From that point forward, you are no longer considered convicted of the offense. Your record will be changed to show a dismissal rather than a conviction.  That is where the “record clearance” occurs!

Once all your convictions have been dismissed, this is what you can expect:

1. Applying for private employment:  Under most circumstances, private employers cannot ask you about any convictions dismissed under Penal Code section 1203.4. So when applying for a job in the private sector, you generally do not have to disclose a conviction if it was dismissed or expunged. But it is a good idea to read Penal Code section 1203.4 , or California Code of Regulations section 7287.4(d) , or  to talk to the public defender in your county if you have questions about your rights and obligations regarding past convictions when applying for a job.

2. Applying for government employment or a government license: For questions by government employers or on government licensing applications, if you are asked if you have ever been convicted of a crime, you MUST respond with “YES—CONVICTION DISMISSED.” In California, government employers and licensing agencies (except for police agencies and concessionaire licensing boards) will treat you the same as if you had never been convicted of any crime.

3. You will not be allowed to own or possess a firearm until you would otherwise be able to do so.

4. Your dismissed convictions can still be used to increase your punishment in future criminal cases.

5. Your prior convictions can still affect your driving privileges.

6. If you have been required to register as a sex offender as a result of a conviction, you have to make a different motion to the court in order to be relieved of this requirement. A dismissal will not relieve you of your duty to register as a sex offender. Your status as a registered sex offender will continue to be available to the public on the Internet under Megan’s Law.

7. If your conviction prohibited you from holding public office, you still cannot hold public office after that conviction is dismissed.

Is the dismissal process the same for each county in California?

Is the dismissal process the same throughout California for the same kind of conviction?

In another words, if two persons suffer the same misdemeanor conviction, let’s say a DUI, but the convictions occur in two different counties, is the process the same to get the two convictions dismissed?

Expungement, also called “dismissal”, is permitted by California law for most misdemeanors, including DUIs.  Even though state law permits dismissals, the dismissal process is not standardized in the state of California.  Dismissal of a conviction is actually county specific.  California has 58 counties and as such, California has 58 different ways to dismiss a conviction.

Therefore, if you suffered a misdemeanor conviction, you must begin the dismissal process in the county where the conviction occurred.  Even though dismissal is a statewide law, the procedure that you must follow to dismiss your conviction differs among the 58 counties.

Some counties have a dismissal process in which the dismissal document, called a petition, is filed directly with only court.  In that set of counties, the person who suffered the conviction, called the petitioner, does not have to serve (send the petition) to any other governmental agency.   The petitioner either delivers the petition in person to the clerk of the court or mails it to the clerk of the court.
Several variations exist, though, in this seemingly easy procedure.  Some of the counties in this group have no filing fee.  The petition to dismiss is free.  Others have filing fees that range up to $150.

Another variation is if payment, a filing fee is due, when the payment must be made.  Some counties require payment at the time the petition is actually presented, either in person or by mail, to the clerk.   Others want payment if and only if the petition is granted.

Still another variation is whether or not the court holds a hearing about the petition.  Some petitions are adjudicated (decided) without any hearing.  The court simply sends the petitioner a notice (decision) by mail.   Other counties require that the petitioner attend a court hearing at which time the judge will inform the petitioner of the court’s decision.

In another set of counties, the dismissal process involves service (sending the petition) to more than just the clerk of the court.  Some counties require that the petitioner send a copy of the petition for expungement to the county district attorney.  Other counties insist that the petitioner not only provide a copy of the petition to the district attorney’s office but also to the probation department.

Every county requires that the petitioner file a petition for expungement.  However, some counties have even gone so far as to develop their own county specific forms that are different than the standard petition form.  That means that some counties have their own, county specific expungement petition.

In addition, some counties have developed county specific forms other than the petition that they require in addition to the expungement petition.  Such forms are needed  so that these counties can verify that since the petitioner’s conviction that the petitioner is trying to expunge, the petitioner has paid all the fines in the case.  Other forms are used to confirm that since the conviction, the petitioner has not been convicted of or has any pending misdemeanor or felony cases.

This web site, www.clearyournamefast.com, has all the forms that each of the 58 counties in California requires, along with a county specific explanation of what must be done.