If you have been convicted of a crime and placed on probation, whether it is a felony or a misdemeanor, and you successfully completed that probation, you may qualify for 1203.4 relief. If you have been convicted of misdemeanor and were not given probation, you may qualify for relief under 1203.4a. You are not eligible if you have been sentenced to prison on a felony.
You qualify by successfully completing the probation and on the condition that you are not serving another sentence or facing arrest or charges on a new offense.
There are some offenses that do not qualify, including certain vehicle code offenses and sex offenses. If you have any question see a lawyer about this.
What Relief Do You Get?
If you are granted an order under 1203.4 or 1203.4a, you will be permitted to withdraw your plea of guilty or no contest and enter a plea of not guilty or, if you were convicted at trial, the verdict of guilty will be set aside. The court will then dismiss the action and you will be "released from all penalties and disabilities resulting from the offense" with certain exceptions.
The exceptions include the fact that the offense can still be used as a prior for many purposes, that it will not affect the prohibition of possessing a firearm and that the conviction must be disclosed in response to a direct question asked in an application process for a state license, while running for public office and in contracting with the state lottery.
Furthermore, 1203.4 or .4a do not really remove reference to the offense from the California Department of Justice CII or the FBI, NCIC rap sheets. They also do not seal or expunge any court records but simply become an order in the file.
What Does This Mean for Disclosure?
If you get 1203.4 or .4a relief, you should keep a copy of the Order and a copy of the code section. It is generally believed that you can truthfully answer questions from private sources, like private employers and deny a conviction. However, you cannot do so with anyone who will be able to access a CII or NCIC rap sheet. Certainly, if interviewed by law enforcement, whether local police or federal authorities, they will have this information and you should probably disclose it and explain. Furthermore, the military, the DOD doing security checks for security clearances, FINRA doing checks of licensing as a stock broker, or employers like banks and casinos who can run rap sheets, all will see the entry and know what it means.
Finally, private employers can go to the courthouse and review your file. The file will have all of the information including your conviction and the final 1203.4 order. There are commercially available databases which collect this information for a fee.
What is 17(b) Relief
17(b) of the Penal Code allows the court to reduce a felony conviction to a misdemeanor. This is discretionary and not automatic as is 1203.4 relief if you meet the criteria. Therefore, you need to file a motion and support your request with declarations to obtain this relief.
You are eligible for reduction if you were convicted of a felony and that felony was a "wobbler," meaning that it could have been charged as a misdemeanor. Furthermore, you would have had to be placed on probation with the imposition of sentence suspended. If a term of years in prison was suspended or you were actually sentenced to prison, you are not eligible.
If you fell that you may qualify for 17(b) relief, you should contact an attorney and ask her or him to prepare the motion for relief. If you do this, the attorney can also handle the request for 1203.4 relief.
How Do I Apply for 1203.4 Relief.
Most clerks offices will have forms that you can fill out on your own. There will be instructions on how to file the forms and what to do to get the final order. Generally, a copy will go to the District Attorney and another to the Probation Department with the original being filed with the court. If there is a question about whether or not you should be granted relief, the judge may want t have a hearing. in some counties, a hearing is set in all cases.
If you have any question about the procedure or if you would rather have an attorney handle it for you (including go to court at the hearing if one is necessary), then you should contact the lawyer you had on the case originally or someone new. Most lawyers will handle the matter for a fairly small fee, maybe less than the value of your time if yo did it yourself, since they have the forms and can process them quickly.
But, if you need an early termination of probation or want 17(b) relief, you should hire a lawyer.
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