We can usually get a petition together relatively quickly in Alameda County, but we’re at the mercy of the court calendar. Court dates are currently being scheduled 30 to 60 days out. A safe estimate would be about 45 days.
The expungement is for the conviction. If you were charged but not convicted, then you wouldn’t need an expungement; you would need a petition or a motion for factual innocence. If your matter was dismissed or the case was never actually charged, then you could petition to be deemed factually innocent and have the arrest sealed and destroyed.
If a person served time in a state prison and was on probation at the time of filing for an expungement, then they would not be eligible to receive expungement. However, if a person was on probation and never served a state-prison sentence, then they could petition for early termination of that probation under section 1203.3 of the penal code. If a judge were to grant a request in the interest of justice, a person would be able to request dismissal under 1203.4, so long as they had dealt with and met all conditions of probation. So, if they were ordered to attend a DUI school, anger management, or a one-year domestic violence batterer’s treatment program, then they would have had to complete that requirement prior to petitioning. After 12 months on probation, a person is eligible to petition for early termination. Crimes resulting in state prison sentences and some sex crimes are ineligible for expungement.
Some people have the misconception that receiving an expungement in California means that the charge disappears into oblivion. In California, receiving an expungement really means receiving a dismissal, which means that it could still be used against you. For example, if you had a DUI conviction expunged but then received another DUI, the new DUI would be treated as a second-time offense.
In California, the only way to have a record sealed and destroyed is to petition for a motion for factual innocence under Penal Code Section 851.8. In order to do that, you would have to meet the burden of proof and show that you were factually innocent of the crime. You would also have to show that the police officer lacked prima facie for the conduct for which they arrested you.
For example, if a person were stopped for a vehicle code violation and gave the name of their sibling instead of their name, then that charge would show on that sibling’s record. In order for that sibling to prove their innocence, they would (at the very least) have to provide their fingerprints and a statement. In other circumstances, there may have just been a lack of evidence that was collected at the time of the arrest.
To have a record expunged means to have it erased. In California, however, there is no actual expungement in the regular use of the word; rather, you can petition for a dismissal. If your petition for a dismissal were to be granted, then the language on your Department of Justice report would be changed from reading “convicted” to reading “dismissed.”
Many times when the matter is dismissed, clients just celebrate the fact that it didn’t result in a conviction, and they don’t have to report it as a conviction on most employment applications. Some clients want to take it one step further, and try to seal and destroy the arrest record. They can do that by filing a motion for factual innocence, pursuant to penal code 851.8. What they will do is hire our office to seal and destroy a record, by way of a motion that includes declarations, character letters, points and authorities and other supporting documentation. Ultimately a judge will make the decision of whether to grant or deny the petition. If the judge finds that you were factually innocent then the record will be sealed for 3 years then destroyed.
Here is an example of factual innocence: Let’s say your sister was arrested, and used your name and your identification during the arrest. It came out later that you weren’t actually the person arrested because the fingerprints didn’t match but now that arrest is appearing on your record. We can petition the court to declare you factually innocent of the crime so that the record of arrest can be sealed and destroyed from your record.
If your petition is denied, then you can apply again at a later time. If you filed a request for early termination and dismissal, then you could wait until you’re off of probation, which may just be another year or two depending on the length of the probationary period. You can go above and beyond by staying out of trouble, not violating your probation and meeting the terms of your probation.
It’s really helpful to make a showing of the extra things that you’re doing, whether that’s community service, volunteering in the community, mentoring people or becoming increasingly involved with your religious institution. Those types of things can have a persuasive effect on the court as long as they are sincere and not done for purposes of getting off of probation.
In order to complete the process of having a record expunged in California, there are basic forms that need to be filled out. The CR1AD is a cover sheet that goes with the petition. Some people just submit that form and hope for the best, because there are some crimes that don’t need much of a showing. If you’ve successfully completed your probation, do not have prior convictions and don’t have any pending charges, then you won’t go to state prison. As a matter of law, those crimes will be granted. However, DUI convictions require a showing that the expungement is in the interest of justice; it’s not automatic.
We would include a declaration of support, in which would address the hardships that the person has faced and the positive impact that the person has had on his or her community. We would show how the conviction is affecting that person either personally, financially or professionally, and why that petition should be granted. After the memorandum, points of authorities and all of the paperwork is completed, we submit it to the court and a court date is set. Sometimes there is an actual hearing, and sometimes there is no objection from the DA. The decision of whether or not to object to the petition will be made by the DA on a case-by-case basis.