Articles Tagged with expungement

 

A criminal record is a blemish on a person’s life. This blemish can keep a person from obtaining normal aspects of life such as a job or a lease on an apartment. There is one step a person can take to wipe the slate clean and get a fresh start on life. This step is called a record expungement.

What is a Record Expungement?

A record expungement is a legal process in which a lawyer submits a request to the court to remove a criminal record, under California Law. This process can give a person freedom and peace of mind because once the process is complete, the person does not have to reveal the criminal act that was once holding him or her back from certain opportunities. The person will be able to say, “No, I do not have a conviction on record.”

There are different types of expungements, with each type depending upon the criminal case and the factors involved. Keep in mind that record expungements are not available to all individuals. In order to get a record expungement, a person must qualify.

Criteria for Record Expungement

Expungement is an option for individuals convicted of certain misdemeanors or felonies. There are certain requirements a person must meet in order to get a record expungement. The criteria are as follows:

  • State convictions and state prison only
  • Probation term successful or conviction date is older than one year
  • Sentence requirements have been satisfied
  • No current charges pending
  • Not currently on probation
  • No crimes involving sex crimes against children and others according to California Penal Code 1203.4

All hope is not lost if you do not meet these requirements. Below, we list the options for those who are ineligible for record expungement.

What if I am Not Eligible for Expungement?

For those who do not meet the criteria for record expungement, the options are:

  • A pardon from the governor
  •  Clemency (Certificate of Rehabilitation or Commutation)

These options require an application and investigation of criminal history records, court and police records.

What a Record Expungement Does and Does Not do

A record expungement can help a person achieve success in life. A person can obtain gainful employment, get a professional license, and get a fresh start. However, an expungement does not make that person invincible.

While the expungement only removes the conviction from a person’s record, there are instances in which the expunged record may need to be disclosed. It is also important to note that the record expungement does not restore a person’s driving privileges. Continue reading

As many as eight million Californians have criminal records for misdemeanor or felony crimes. All of them are subject to denied or limited employment, housing, and credit opportunities because of their criminal convictions. Many of the past crimes are for low level misdemeanors, like simple marijuana possession, or low-level felonies that are non-violent in nature.

Jurisdictions all over the United States are banning prospective employers from inquiring about a job applicant’s criminal conviction history during the recruitment process. It is not until the job applicant is made a formal job offer that it is permissible for an employer to inquire about a job applicant’s prior criminal convictions. Despite these modest changes to the law, discrimination against prior criminal defendants persist, aided by the public record of his or her criminal conviction.

Current Law Regarding Sealing of Criminal Records

Right now, people can seal their rap sheets following the completion of all their sentencing conditions. For example, a person convicted of driving under the influence, who receives a two-month sentence in county jail and three years of probation is able to request his or her criminal conviction record be sealed after applying and paying a fee, three years from the date of his or her release from jail.

Proposed Criminal Records Bill

The proposed Criminal Records Bill, would automatically seal the rap sheet of people whose crimes are specified in the statute as eligible for automatic sealing. The bill would apply retroactively, meaning people with prior criminal convictions who have not applied to seal their record would have their records automatically sealed when the Criminal Records Bill becomes effective.

Law enforcement agencies and some employers would still be able to access prior arrest records as part of criminal investigations or deep background checks for certain job positions. Members of the public, including potential landlords and employers, would no longer have access to a person’s arrest and conviction records.

The California Justice Department under the proposed bill would be able to contest the automatic sealing of a criminal record under certain conditions and upon application to the court. All others, however, would automatically be sealed upon successful completion of sentencing conditions.

Seal Your Criminal Records Now

You do not have to wait for the Criminal Records Bill to pass to seek the sealing of your criminal record. Individuals may petition the court to have their prior criminal conviction records sealed under certain circumstances. If you would like to know if your criminal record can be sealed, contact the qualified and knowledgeable San Diego Criminal Defense Attorney today to understand the process and your legal rights and responsibilities in seeking such relief. Continue reading

Many employers conduct criminal background checks when individuals apply for a job. If you have been arrested or convicted of a crime, getting a job can become a stressful undertaking because some employers do not hire individuals with arrest or conviction records. Depending on the job, some classes of convicted people may be prohibited by law from getting hired.

Problems with Criminal Background Check Reports

It is not uncommon for an applicant to have incorrect or missing information in their criminal background check report. Reports can be mismatched, contain inaccurate information, include someone else’s information, or misclassify the criminal offense.

Expunging or Sealing Criminal Conviction Records

People who committed crimes when they were minors or people who have old criminal convictions can seek that their arrest and criminal conviction records be expunged, meaning they are hidden or sealed from public disclosure. This helps individuals put past behavior away and keep it from affecting their future employment or housing prospects.

Federal Laws that Protect Individuals with Arrest and Conviction Records

There are two main laws, the Fair Credit Reporting Act (FCRA) and Title VII that protect individuals from discrimination in employment because of prior arrest and conviction records. Under the FCRA, background checks that look into an individual’s criminal records, may not include arrest records that are more than seven years old, unless the position pays more than $75,000 a year. Conviction records however, have no such time limit. Title VII prohibits discrimination including in job screening and hiring practices in employment and frowns upon employment practices that issue blanket prohibitions against employment people with prior arrests or convictions.

Charged with a Misdemeanor Crime in California?

It is important that a person accused of a crime talk with his or her criminal defense attorney to understand the impact of a criminal conviction on his or her employment options. Current jobs may be lost after a person pleads guilty to a crime and future job opportunities may be curtailed because of an arrest or criminal conviction.

For example, if you are employed in commercial driving and you are arrested for driving while intoxicated, you may lose your commercial drivers’ license immediately. No drivers’ license means you can not work while your case is pending.

If you have been charged with a crime in California, you can face either a misdemeanor or felony charge along with heavy fines and years of imprisonment. Contact a qualified San Diego Criminal Defense Attorney who can help mitigate penalties today and explain your legal rights and responsibilities. Continue reading

At the end of 2017, Governor Jerry Brown announced pardons or sentence reductions for about 150 convicted criminals, including eight cases whose crimes were committed in San Diego County. In total, the governor pardoned 132 people and commuted the sentences of 19 people.  This included pardons for about 60 people convicted of making, selling, or possessing drugs, including marijuana. Only one of the cases from San Diego county was a commutation.

Amongst the cases of pardons, was that of Jeremy Stewart, who was convicted in 2010 for burglarizing two homes and stealing thousands of dollars worth of property. Under the three strikes law, he was sentenced to 70 years to life in prison. His prior convictions included other burglaries, petty theft, receipt of stolen property, and being a felon in possession of a firearm.

According to Brown’s commutation, Stewart acknowledged his criminal history and a drug addiction. He has been a model prisoner and during his incarceration received a degree in social and behavioral science from Coastline Community College. As a result, he will be released on parole, with the support of the Board of Parole Hearings.

What is the Difference Between a Sentence Commutation or Pardon?

Most governors in all 50 states have the power to grant pardons or reprieves for criminal offenses under state law. A pardon wipes out the conviction and makes it so the crime effectively never happened, while a commuting of a sentence merely reduces the sentence.

How to Apply for a Pardon

Instructions on how to apply for a pardon can be found on the state of California website. To be considered, an applicant must have been discharged from probation or parole for at least 10 years without further criminal activity during that period. There is no fee for applying for a pardon.

Additionally to qualify for a pardon, you must be a resident of California, and the conviction must be from the state of California. The Governor of California cannot grant a pardon for a conviction from another jurisdiction, such as another state or a federal proceeding. The first step in applying for a pardon is to obtain a Certificate of Rehabilitation from the Superior Court in the county where the applicant currently lives. If the Court issues a Certificate of Rehabilitation, the certificate is forwarded to the Governor’s Office where it automatically becomes an application for a pardon. Once an application is submitted, the review process must take place. If the governor decides to take action, the applicant will be notified. Continue reading

Recently, the state Fair Employment and Housing Council (FEHC) finalized new regulations that would further limit a California employer’s ability to use criminal history when making employment decisions. Specifically, the new regulations, which are based on the FEHC’s 2012 Equal Opportunity Commission Guidance, would prohibit an employer from considering a job applicant’s or employee’s criminal history if doing so would result in an adverse impact on individuals within a protected class, such as gender, race, and national origin. This means a job applicant must first prove that an employer’s background screening policy actually has an adverse impact on a protected class. This includes proving that the screening policy disproportionately affects certain groups more than others, such as African Americans.

If an adverse impact is shown, the employer must demonstrate that the policy is job-related and consistent with business necessity. The employer in deciding these two factors must consider the nature and gravity of the criminal offense, the amount of time elapsed since the offense, and the nature of the job held/sought by the employee. Under FEHC regulations, employers must specifically assess people on a case by case basis while considering criminal history. Employers must be able to justify why they rejected a specific candidate. In other words, blanket policies that preclude any criminal record will now be illegal.

It should be further noted that even when the employer implements job-related screening processes, an applicant or employee can still prevail on an adverse impact claim if s/he can demonstrate the employer could use a less discriminatory policy without increasing significant costs.   

Lastly, the new regulations also contain employee notice requirements. This means that before an employer can adverse action against someone based on their record, he or she must give this person notice to refute his or her criminal history.

The regulations will become effective July 1, 2017.

Other Criminal Disclosure Changes

Earlier this year, Assembly Bill (A.B.) No. 1843, which amended Section 432.7 of the California Labor Code, was signed into law to prohibit employers from asking about or considering one’s juvenile records or involvement in the juvenile system if it did not result in a conviction.

Between these new regulations and last year’s law, employers should be careful when considering one’s criminal record. These policies must be narrowly tailored and exclude any blanket prohibitions. Continue reading

Expungment can be generally defined as the process of destroying, sealing, or striking out records or information related to criminal charges that affect one’s criminal record. In effect, if you have a criminal record expunged, it is as if it never happened. This means you will no longer have a criminal record and you will have the freedom to not disclose a prior criminal conviction on a job or housing application. There are different kinds of expungements, which will vary depending on the kind of criminal case that you have and the factors that are involved.    

Do I Qualify for an Expungement?

California state law (CA Penal Code § 1203.4) allows one to expunge his or her criminal records for a misdemeanor or felony offense if s/he has successfully completed probation, is not currently charged with a criminal offense, on probation for another offense, or serving a sentence.