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#404 Setting aside a criminal conviction

mp3 #404 How Can I Have my Criminal Conviction Set Aside? (mp3 file)


Expungement of a criminal record is not an automatic process. An experienced Criminal Law attorney can help speed up the process and improve the outcomes of your case. Continue below to be referred to an experience and insured Criminal Law attorney:

 

 
If you have been convicted of a crime in California, you may wish to have your conviction dismissed and set aside, in order to clear your criminal record for some purposes. This SmartLaw message will discuss the following questions:

1-Who is eligible to have criminal convictions set aside?

2-Who is not eligible to have criminal convictions set aside?

3-What procedure do you follow to have your criminal convictions set aside?

4-What are the advantages of having your criminal convictions set aside?

5-What are the continuing effects of your convictions, even though your criminal convictions are set aside?

6-How can you have your juvenile misdemeanor records sealed?

First, who is eligible to have criminal convictions set aside?

You may have your criminal conviction set aside if you were convicted of most misdemeanors, or if you were convicted of a felony for which you were placed on probation.

If you were placed on probation for most misdemeanors or for a felony, you must meet all of the following requirements before you can apply for a dismissal of your conviction:

1-Your probation must have ended, and

2-You must have fulfilled all the conditions of your probation, and

3-you must not now be serving a sentence for any offense, or be on probation for any offense, or be charged with the commission of any offense.

Perhaps you were convicted of a misdemeanor but you were not placed on probation. For example, you might have received a terminal jail sentence without probation. You, too, may apply for a dismissal of your conviction, if you meet all of the following requirements:

1-You must have fully complied with and performed the sentence of the court, and

2-You must not now be serving a sentence for any offense, nor be charged with the commission of any offense, and

3-Since sentencing, you must have lived an honest, upright, and law-abiding life, and

4-0ne year must have passed since you were sentenced.

Next, who is not eligible to have a criminal conviction set aside?

You may not apply for a dismissal if you were convicted of the following:

1-Any infraction, or

2-Some misdemeanors related to motor vehicle offenses, such as drunk driving, or

3-Any felony for which you were not placed on probation. For example, if you were sentenced to state prison for a felony, you may not apply for a dismissal of the charge after you are released from prison and parole.

Next, what procedure do you follow to have your criminal conviction set aside?

You file an application to dismiss or set aside your former conviction, under Penal Code Section 1203.4 or 1203.4a, on a form available from the county clerk's office, the probation department, or the public defender's office. The application is filed in the court in the county where you were originally sentenced. Either you, your lawyer, or the probation department may file the application with the court. The district attorney's office must be notified at least 15 days before a court hearing on your application. The county may charge you up to $120 to file your application, but this fee will be waived in part or entirely if you do not have the financial ability to pay the fee. At the court hearing, the judge will make a decision on your application. If the judge grants your request, your conviction will be set aside, and your guilty plea or guilty verdict will be withdrawn.

Next, what are the advantages of having your criminal conviction set aside?

When you have your criminal conviction set aside, you "thereafter shall be released from all penalties and disabilities resulting from the offenses," as stated in Penal Code Section 1203.4a. It is your reward for carrying out the condition of your sentence or probation, and for staying out of any further trouble with the law since you were sentenced for your offense. When you have your criminal conviction set aside, it does not mean that you are declared innocent of your original offense, but it does mean that your original offense may be forgotten and disregarded for most purposes.

The main reason that you would want to have your criminal conviction set aside, is to make it easier to get a job. If it has not been set aside, to be truthful on your job application you would have to answer "yes" if you were asked if you had been convicted of a crime. But after you have your criminal conviction set aside, you could truthfully answer "no" to such a question.

You also may want to apply to have your criminal conviction set aside just because you have earned it, you are entitled to it, and it makes you feel better about yourself to have this offense removed from your record.

Next, what are the continuing effects of your convictions, even if your criminal convictions are dismissed and set aside?

There are still some remaining effects of your conviction, even though you have your conviction dismissed and set aside:

1-If you are later prosecuted for a different offense, your otherwise dismissed prior conviction may still be pleaded and proved by the prosecutor, and it will have the same legal effect as if it had never been dismissed.

2-If you are accused of another crime and you testify as a witness in your own defense, the prosecutor may impeach or discredit you with your prior conviction, even though it has been dismissed and set aside.

3-If you seek a public office or a license from any state or local agency, or for contracting with the California state lottery, you must disclose your prior conviction in response to a direct question contained in any questionnaire or application, even though your conviction has been dismissed and set aside.

4-If you have lost your professional license because of your criminal conviction, your professional license will not be automatically restored when you have your conviction dismissed and set aside.

5-Your conviction will be taken into consideration by the department of motor vehicles, for the purpose of suspending or revoking your driver's license, even though your conviction has been dismissed and set aside.

6-Your conviction may be used against you in a later civil case involving the same issues, even though your conviction has been dismissed and set aside.

7-Your felony conviction continues to mean that because of federal law you may not own or possess any firearm, even though your conviction has been dismissed and set aside.

8-The records of your conviction, and other public official records in your case, are not sealed by the court, even though your conviction has been dismissed and set aside. Certain authorized persons and agencies will still have access to these records of your criminal conviction.

9-If you were convicted of a felony sex offense, and you are required to register with your local law enforcement agency, you must continue to do so, even though your conviction has been dismissed and set aside.

Next, what if you were a minor, under 18 years of age, when you committed a crime? Can you have records of your juvenile "conviction" sealed?

You cannot have any juvenile felony records sealed, but you can have a juvenile misdemeanor record sealed. If it was a misdemeanor you committed before March 7, 1973, you were a minor then if you were under 21 years of age, according to California law.

To apply to the court to have your juvenile misdemeanor record sealed under Penal Code Section 1203.45, you must either have already had your conviction dismissed and set aside, or you must now be eligible to do so.

There are some situations in which you are not eligible to have your juvenile misdemeanor conviction sealed. If you were convicted of more than one offense at any time as a juvenile, then you are not eligible. Or if it was a sex offense that requires registration as a sex offender, or if it was one of certain drug offenses, or if it was a vehicle code misdemeanor such as drunk driving, then you are not eligible. A misdemeanor marijuana offense may be sealed, however.

If the court grants your request to have your juvenile misdemeanor record sealed, the result is that your conviction, arrest, or other proceeding, shall be considered as if they had never even taken place, and you may truthfully answer any questions about them as if they had never happened at all.

What if you were arrested for a juvenile misdemeanor, but were never convicted? Can you have the arrest, detention, and court records sealed? Yes you may, subject to the same limitations that apply to the sealing of convictions.

The court may charge you up to $120 for the cost of sealing the record of your single juvenile misdemeanor offense.

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