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Legal records were supposed to be sealed and were not. Can I accomplish this without hiring an atty and paying out money?

Huntington Beach, CA |

Criminal drug case, reduced to misdemeanors, attended six-week drug class, first and only offense. My atty told me my records were sealed, did not have to answer yes to being arrested. Years later found out records were not sealed. I hired an atty to accomplish this and he strung me along, took my money, accomplished nothing. I ended up having to take him to the local and state bar. I would like to know if this is something I can accomplish myself by calling the court. Thank you. Attended court in Westminster, Ca. Believe in 1986-7

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Attorney answers 2


There is no statutory procedure in California for sealing an adult criminal record in which there was a plea or conviction. You do not qualify for a court order finding of factual innocence on the matter summarized here, and that is the sole process by which adult criminal history records gets "sealed" in California.

Perhaps you obtained an order of post-conviction dismissal pursuant to Penal Code section 1203.4. Those orders are often confused with "sealing." A post-conviction dismissal order does not delete or erase the criminal history record. Instead, it adds an entry in supplement re the post-conviction dismissal. Attorneys all too often refer to such orders as "expungement," but they are not true expungement. California law does not offer genuine expungement.

Assuming that there is any statutory remedy available to you at this point, you most likely need an attorney to review your record and provide you with specific advice and assistance.

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Adult records cannot be "sealed". If you were placed on probation, you can seek relief under Penal Code section 1203.4 (commonly referred to as an 'expungement'), but that won't take it off your record - it only adds a notation that the case was subsequently dismissed.

If you got a drug diversion under Penal Code 1000, there is certain specific relief you get after successfully completing it. Again, it won't take it off your record, but under Penal Code 1000.4 says:

1000.4. (a) Any record filed with the Department of Justice shall
indicate the disposition in those cases deferred pursuant to this
chapter. Upon successful completion of a deferred entry of judgment
program, the arrest upon which the judgment was deferred shall be
deemed to have never occurred. The defendant may indicate in response
to any question concerning his or her prior criminal record that he
or she was not arrested or granted deferred entry of judgment for the
offense, except as specified in subdivision (b). A record pertaining
to an arrest resulting in successful completion of a deferred entry
of judgment program shall not, without the defendant's consent, be
used in any way that could result in the denial of any employment,
benefit, license, or certificate.

There are some exceptions in 1000.4(b), but that code section does say you can legally say "no" you were not arrested. (That's assuming you were given diversion under Penal Code 1000 and not some other program or deal worked out in court.)

And - as a side note.... employers cannot ask if you have been arrested. They can ask about convictions and pending cases, but not just arrests. (California Labor Code 432.7)

The above answer is for general information only and is based on the information you posted. Every case is fact dependent, so to get a thorough analysis of your situation, you will need to consult face to face with an attorney licensed to practice in the jurisdiction where the incident took place. Do not conclusively rely on any information posted online when deciding what to do about your case.

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