Dismissal of Criminal Case per Penal Code Section 1203.4 (Formerly Expungement of Criminal Records)

Posted over 2 years ago. Applies to California, 7 helpful votes

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1

What is the difference between an Expungement and a Dismissal?

The terms are used interchangeably in California regarding 1203.4 motions, however the word "expungement" is misleading. According to Black's law dictionary "expunge" means "to erase or destroy," and "expungement of the record" means "the removal of a criminal conviction from a persons record." Essentially, the conviction is "dismissed" or "withdrawn" from the record, but the criminal case record is not erased from public view, because court records are public in nature.

2

What will a Dismissal do for me when I apply for Private Employment?

Under most circumstances, private employers cannot ask you about any convictions dismissed under Penal Code ?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 the Penal Code ?1203.4, the California Code Regs 7287.4(d), and my guide regarding "Applying for a Job."

3

What will a Dismissal do for me when I apply for Government Employment or a Government License?

On questions by Government Employers or 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.

4

Can I own or possess a Firearm?

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

5

Can my Dismissed Conviction still be used against me in a Criminal Action?

Your dismissed conviction(s) can still be used to increase your punishment in future criminal cases.

6

Does my Dismissed Conviction allow me to Drive?

Your prior conviction(s) can still affect your driving privileges.

7

Do I still have to Register as a Sex Offender?

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.

8

Does my Dismissed Conviction allow me to hold Public Office?

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

9

What are the effects of the Dismissal on the Court Record?

It will result in the verdict or plea of guilty being set aside. The court will order that the plea, verdict, or finding of guilt be set aside, and vacated and a plea of "not guilty" be entered; and that the Complaint be, and hereby is dismissed.

10

What Are The Effects Of The Dismissal?

It Will Not prevent the conviction from being considered and used to refuse or revoke government licenses and permits such as teaching credential, nursing license, bus drivers license, security guard certificate, etc., however, the expungement usually reduces the weight given the conviction by the licensing agency.; Dismissal does not prevent a conviction from disqualifying an individual from obtaining a foster care license if the original offense is one for which an exemption for disqualification cannot be granted under Health & S C ?1522(g). Department of Children & Family Servs. v Superior Court (Cheryl M.) (2003) 112 CA4th 509, 5 CR3d 182.

11

What are the effects of the dismissal?

It Will Not remove the conviction from your "Rap Sheet" -- California and FBI criminal history records will still show the conviction and a dismissal "per PC 1203.4".

12

What are the effects of the dismissal?

It Will Not prevent the conviction from being used for impeachment purposes if called as a witness.

13

What are the effects of the dismissal?

It Will Not Eliminate the conviction from consideration for Immigration purposes. The federal government has no general obligation to recognize Pen C ?1203.4 relief. See, e.g., Dickerson v New Banner Inst. (1983) 460 US 103, 74 L Ed 2d 845, 103 S Ct 986. However, the federal government does give limited recognition to state court dismissals. See 18 USC ?921(a)(20) (recognizing state dismissal for firearms purposes, if dismissal permits the person to possess a firearm). Lujan-Armendariz v INS (9th Cir 2000) 222 F3d 728, 749 (narcotics offenses that could have been prosecuted federally and expunged under Federal First Offender Act but were prosecuted by the state and expunged in state court are expunged for purposes of deportation). Other circuits have declined to follow Lujan-Armendariz, and the Bureau of Immigration and Citizenship Services has refused to apply it outside of the Ninth Circuit. See Acosta v Ashcroft (3d Cir 2003) 341 F3d 218, 225. Contact Immigration Attorney!

14

Do I need to disclose a conviction that was dismissed to my employers or others who may do background checks?

No, notwithstanding the above referenced exceptions. Furthermore, recent statutes and case law in California primarily concerned with individual privacy have made it unlawful for certain potential employers to obtain consumer credit reports with criminal background information and must give disclosure and access of these reports to the applicant. If you have a specific legal question please contact an attorney for legal advice.

15

How long do the Courts maintain Criminal Convictions and other Criminal Records?

The courts must retain records of conviction and other criminal records for the times specified in Govt C ?68152. For felonies, this is generally 75 years. The California Department of Justice (DOJ) retains almost all criminal records until the subject reaches the age of 100. The only records that the DOJ does not retain are criminal records that have been sealed or that contain certain marijuana charges as specified in Health & S C ?11361.5.

16

Can I Petition the Department of Justice to Destroy a Record?

Anyone arrested or convicted for any charge specified in Health & S C ?11361.5 can petition the DOJ to destroy the record. Form BCH 8033, Application to Destroy Arrest/Conviction Records, is available from the Records Management Unit. The DOJ will notify the FBI when specific arrests or entire records are purged from DOJ files.

Additional Resources

Please contact an attorney regarding your conviction that you would like dismissed (expunged). Be advised that not all convictions can be dismissed. Furthermore, this area is very complex and changing, so it is best to seek legal representation to help you with your case. Relief from the civil consequences of an arrest or conviction is governed by the California Constitution and by various statutes. Most forms of relief require some post-judgment action by the court, such as sealing records, vacating convictions, or granting certificates of rehabilitation. Other forms, such as destruction of minor misdemeanor marijuana records, will occur automatically. A pardon requires gubernatorial action. The Department of Justice determines relief related to the posting of sex offender information on the Megan’s Law website. See California Penal Code Section 1203.4.

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