If you have suffered a criminal conviction in Alameda County at some point in your past, we can help you clear up your record. People often refer to this process as "expungement", however, as will be explained below, that term isn't quite accurate.
Who is eligible for dismissal under 1203.4?
The legal remedy for clearing your criminal record depends on what crime you were convicted of and whether you were sentenced to probation or state prison. Most misdemeanors and felonies are eligible for relief under PC 1203.4 unless the felon was sentenced to a term in state prison or local prison under PC 1170(h). If you were sentenced to prison, see our page regarding Certificates of Rehabilitation and Pardon.
Defendants who have successfully completed probation (including early discharge) can petition the court to set aside a guilty verdict or permit withdrawal of the guilty or nolo contendere plea and dismiss the complaint, accusation, or information. These petitions are made under the authority of Penal Code section 1203.4.
Example: John Smith is convicted of a first time DUI offense in the Hayward Hall of Justice in 2005. He received three years of court probation with the following terms and conditions: serve 2 days in the county jail, pay a court fine, complete 10 hours of community service, and complete the 3-month first time DUI offender course. Also, as with all grants of probation, Mr. Smith is ordered to be of good conduct and refrain from further violations of the law.
Result: As long as Mr. Smith has complied with all the terms of his probation (i.e., completed DUI class, served 2 days, completed community service, paid fine) and has not been convicted of any new crimes while on probation, he is eligible for a dismissal under 1203.4.
1203.4(b) lists some exceptions for cases that are not eligible:
"...this section does not apply to any misdemeanor that is within the provisions of Section 42002.1 of the Vehicle Code, to any violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, subdivision (j) of Section 289, Section 311.1, 311.2, 311.3, or 311.11, or any felony conviction pursuant to subdivision (d) of Section 261.5, or to any infraction."
What effect does dismissal under 1203.4 have on my record?
When the court grants a petition under 1203.4, the guilty or no contest plea that you previously entered is withdrawn and replaced with a not guilty plea. Then, by operation of law, the case is dismissed. This means that you are no longer convicted of the offense. On most job applications, if you do not need to disclose the conviction. This is the most important benefit to clients obtaining a record clearance under 1203.4.
However, a successful 1203.4 petition does not completely erase the case from existence. Some collateral aspects of the conviction will still remain. This is why attorneys often say that there is no "expungement" under California law. Here are some examples:
- Mr. Smith from the example above obtains a 1203.4 dismissal for his 2005 DUI conviction but gets arrested and charged with another DUI in Fremont in 2014. The 2005 conviction from Hayward may still be alleged as a prior DUI. DUIs are priorable for 10 years and the 1203.4 did not make the 2005 conviction completely vanish. This same principle applies to other types of charges that are "priorable" (e.g., theft related offenses, certain sex offenses, driving on a suspended license, etc.).
- Mr. Brown was arrested by Dublin Police and convicted of misdemeanor PC 273.5 (spousal abuse causing injury). He has fulfilled all the terms and conditions of his probation and the judge his just granted is 1203.4 petition. Mr. Brown still may not own or possess firearms. (see Penal Code section 29805)
As with practically all laws, there are some exceptions that do not apply to most people. Even if your 1203.4 petition is granted, disclosure of the conviction is still required "in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission." (see PC 1203.4(a))
Early termination of probation and dismissal under 1203.4
If you are still on probation in Alameda County for the offense that you wish to have removed from your record, the process will involve two steps. First, your probation must be terminated early by the court. To do this, your Alameda County defense attorney files a motion under 1203.3(a) that explains to the court all the reasons why probation should be terminated. Second, once terminated, your attorney the petitions for 1203.4 relief. In most cases, the motion for early termination of probation and petition for 1203.4 relief are taken care of at the same time in court.
The decision to grant a motion for early termination of probation rests solely with the judge. The judge will consider the reasons for the request given by defense counsel, whether or not the DA is opposed (they usually are), and whether or not the probation department has any input to offer.
Therefore, you need to know what types of reasons the court will be responsive to and what types of reasons the court will likely disregard. The experience of your defense attorney comes into play here. We have successfully obtained 1203.4 relief for many clients, even when the prosecution opposes.
If you need to clean up your criminal record, we can help. Contact us today for a free consultation.