California Criminal Defense Lawyer Blog
In California, there are statutory procedures that offer criminal record relief, most commonly through one of the following:
- Petition for Dismissal (Expungement): A person who was previously convicted of an qualifying misdemeanor or felony, and who has successfully completed their sentence, is usually eligible to petition the court to dismiss the conviction.
- Certificate of Detention: When a person is arrested but where charges were never filed as a result of that arrest, the arrestee may petition the arresting agency for a certificate of detention, which in effect, erases the entire arrest record and turns it into a investigatory detention.
- Seal and Destroy Arrest Record: For those persons who were arrested but never convicted on the offense because charges never filed or were dismissed, or due to a not guilty verdict or satisfactory completion of a pretrial diversion judgment, a petition to seal the arrest record can, in most cases, result in a court order to seal and destroy the record of the arrest.
There are some exceptions and particular qualifications for the various record relief statutes. Almost all misdemeanor convictions are eligible for dismissal as are some felony convictions; however, any felony conviction that resulted in a prison sentence will not be eligible. The procedure itself is relatively simple but determining whether any particular conviction is eligible can be confusing. That is where an experienced criminal defense attorney can help.
Despite the terminology: “Dismissal”, “Expungement”, “Seal and Destroy,” there is nothing in the current statute that prohibits public access to a previous conviction. Although a successful petition will result in the appropriate conviction relief entry on an individual’s Department of Justice (DOJ) Criminal History Report (most commonly called a “Rap Sheet”), data brokers who conduct background checks, consumer record checks, and criminal data reports can still lawfully search for and report the previous conviction. Furthermore, even though an individual’s DOJ record reflects the conviction relief, if that person applies for or is in an occupation that requires state licensing, that occupation’s licensing board has access to the prior arrest and/or conviction, which may affect the individual’s license or application.
It’s all about to change. Beginning January 1, 2021, under the newly passed “Clean State Act,” it will be unlawful for data brokers to obtain criminal record information. At present, most of these data brokers get the previous conviction information from court records. With the new Act courts will be prohibited from disseminating criminal record information on a defendant who was granted criminal record relief. No longer will background checks on a person renting an apartment, applying for a job, or making other applications reveal a criminal history even though that person had been granted criminal history record relief. Furthermore, if the data brokers are able to obtain the criminal history through other means, the broker will be subject to criminal and civil liability.
Additionally, the Clean Slate Act prohibits occupational and state licensing boards, with some exceptions for law enforcement jobs and health care jobs, from denying a license to an individual based on a conviction that has been dismissed or an arrest that did not result in a conviction.
Under the Act, convictions and arrests after January 1, 2021 that would qualify for criminal record relief, will be automatically granted the relief. The DOJ will be responsible for identifying and notating the eligible records. However, the automatic grant of relief will not apply to convictions or arrests that occurred before 2021. But it is important to note that the other effects of the Act will be implemented for all convictions or arrests that have been granted relief through petition.
Many individuals who are eligible for criminal record relief never petition for it. In most case, eligible conviction and arrest record relief is easy to obtain and, in often, the relief is a matter of right under the law. With the passage of the Clean Slate Act, it is imperative that eligible individuals apply for the relief now. Since the automatic feature of the Clean Slate Act is prospective only, those who have convictions or arrests currently on their record must file a petition to have their DOJ record amended to reflect relief granted. A person who is eligible but has not petitioned for and been granted the relief is leaving their conviction or arrest record oepn, which will remain publicly available and may be considered on occupational and professional licensing when that could be easily rectified by filing a fairly simple petition.
Orange County criminal defense lawyer William Weinberg offers a complimentary consultation to determine if your conviction or arrest is eligible for criminal record relief. You may contact him by phone at 949-474-8008 or by emailing him at bill@williamweinberg.com.