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WHAT CAN I DO TO CLEAR MY CRIMINAL RECORD?

What can I do to clear my criminal record

 

Perhaps you are looking for a new job but keep getting turned down because you have something on your criminal record.  There is a provision in the California Penal Code that does give you a certain amount of legal relief so that you can pursue your employment potential to its fullest.
Penal Code Section 1203.4 allows anyone who has been convicted of a felony or misdemeanor to have their case  “expunged” from the record pursuant to this section.  There are some prerequisites however.
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1. At the time you were sentenced on the case,  you received probation and have successfully completed all the terms of probation.  This means that you have paid off all of your fines and fees, fulfilled all your other obligations including any possible jail time, cal-trans, or
community service.
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2. You must not have any other open cases or be on probation for any other cases.  This includes cases for which you have been charged with but not yet convicted, cases for which you are still on probation and cases for which you are being investigated for but haven’t been charged with.
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3. The time for which you were put on probation must have expired.  For example: if the court put you on three years of informal probation, you must wait until the three years has elapsed.  There are some exceptions to this however.  If you have completed all of the terms of probation including paying your fine in full, finishing classes and fulfilling any jail or community service commitments, and you are at least 18 months into the three year probation, and you can give the judge an extenuating circumstance or reason why you should have probation terminated early, you may be able to do so.  Examples of what judges are looking for on early terminations are: going into any branch of the United States Armed Forces, pending employment which requires that you obtain an expungement, a job transfer that will take you out of the state or country.  In any of these circumstances, you have a good chance of getting your probation terminated early and having your case dismissed pursuant to Penal Code 1203.4.
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Once you have your case expunged, it will take up to a few weeks for the court to notify the Department of Justice and have it reflected on your “rap sheet” or D.O.J record.  Courts will charge anywhere between nothing up to $150 for filing the motion.
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What exactly does the 1203.4 motion do to my record and what can I state on a job application?  An expungement will never take off the original contact you had with law enforcement.  Whether you were arrested or merely cited for an offense, that incident will create an entry on your criminal record with the date and the offense listed.  Even after obtaining an expungement, that information will remain, however, the entry that you were convicted is removed and the record will reflect that the case was dismissed in the interests of justice or pursuant to Penal Code 1203.4.  In effect, it shows that the case was dismissed but it doesn’t “erase” your record.

As far a job application is concerned you can honestly state that you have never been convicted of the offense if you have had it expunged.
There are three exceptions to this rule.  If you are applying for a state license such as a medical license, a child care license, a license to practice law or any other license issued by the state of California or local agency, you must disclose even expunged convictions.  The same goes for applying for any public office whether running for city council or state governor, you must disclose the conviction.  And finally, if you are contracting with the State Lottery Commission, you must disclose.
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Can a prospective employer run a background check on me after I have filled out the application?  Will they see the entry that shows the expungement? Yes, they can and often do see the fact that the prior offense was dismissed. That doesn’t mean you lied on your application because an expungement does allow you to deny any prior conviction.

However, an employer can refuse you employment for many different reasons as long as your constitutional rights are not violated.  One reason for not hiring you may be that you had a prior conviction that has subsequently been dismissed.  Just remember, at the minimum, an expungement is a proof that you successfully completed probation, that you are not currently on probation for any other offense and that you are not currently being investigated for any other illegal activity.  As such, it shows that you have turned things around and are currently living a crime-free life and will greatly enhance your employment opportunities.

How can I file a 1203.4 motion?  It is always best to consult with an attorney regarding expungements especially when you are requesting an early termination of probation.  The paperwork can be confusing and there are different strategies that are used to convince a judge that your case should be expunged.  Often time character reference letters, proof of employment, and other exhibits are attached to the motion to convince the judge that you are a worthy candidate for an expungement.
Remember, it is discretionary with the court so it is always good to consult with an experienced attorney.
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Richard McGuire
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