Felony, Misdemeanor or Infraction-Expungement In CA
Before January 1, 2018, a person who was arrested but never charged, or who had his or her charges dismissed, would have to live with an arrest on his or her record, or file a difficult to win Motion for a Finding of Factual Innocence. Great news, a new California law changes this! The burden of having an arrest record can come back to haunt you even though CA laws prohibit most employers from using it against you. An expungement may be able to help your future!
What is an Expungement?
If you were convicted of an infraction, a misdemeanor, or a felony and were not sentenced to state prison, we can petition the court for a dismissal. This means you were given county jail time, probation, a fine, or a combination of those and you may be eligible for an expungement. The court will set aside the conviction and the court record would show "dismissed" rather than a conviction.
Most counties have a website in which your arrest and conviction are on many databases. Once the court approves the "dismissal", then the record is sent to the California Department of Justice, and your record should show cleared for most searches and public records.
California Labor Code section 432.7 says that an employer CANNOT ask someone applying for a job for information about an arrest or detention that did not end in a conviction.
Furthermore, an employer cannot ask about a referral to or participation in any diversion program. An employer is also not supposed to look for any record of arrest (from any source) that did not end in a conviction. A conviction, for purposes of this code section, includes pleas, verdicts, or findings of guilt. If this information comes to the employer’s attention anyway, the employer cannot use that record as a factor in hiring, promoting, or terminating that person.
An employer may ask an employee or someone applying for a job about an arrest where the case is still pending. This is because an employer would not want to hire someone who may end up with a conviction that effects their employment.
Generally, you are protected from having to disclose to an employer an arrest that did not result in a conviction. The expungement would result in you not have to disclose your conviction information to an employer because your record would show the case as “dismissed” in most situations.
THE LAW REGARDING PROFESSIONAL LICENSES JUST GOT BETTER FOR YOU!
CA Business and Professions Code, section 480.
This addresses professional licenses and how an expungement may assist in getting a license. “A person shall not be denied a license solely on the basis of a conviction that has been dismissed pursuant to Section 1203.4 (e.g. CA Expungement) of the Penal Code. An applicant who has a conviction that has been dismissed pursuant to Section 1203.4, shall provide proof of the dismissal. This is specific to a board within the California Department of Consumer Affairs and the licensing authority of this agency.
Here is a link to their website to get a list of licenses: CA Dept. of Consumer Affairs
A person shall not be denied a license solely on the basis that he or she has been convicted of a felony if he or she has obtained a certificate of rehabilitation … or that he or she has been convicted of a misdemeanor if he or she has met all applicable requirements of the criteria of rehabilitation developed by the board to evaluate the rehabilitation of a person when considering the denial of a license.
What an expungement will do:
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 your attorney 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.
You will not be allowed to own or possess a firearm without an expungement or dismissal.
Your dismissed convictions can still be used to increase your punishment in future criminal cases.
Your prior convictions can still effect your driving privileges.
Effect of Expungement on Rights to Stay in the United States if a non-citizen
If you are convicted of a crime while you are lawfully in the U.S., the government may deport you back to your home country.
Contact an Immigration Attorney for further information.