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Expungement (Penal Code section 1203.4 motion)

What is an "expungement"?

When people hear the term expungement they usually think it means erasing a case from a person's criminal record.  However, that is not exactly the case.


In reality, the term expungement refers to the relief provided by California Penal Code section 1203.4, which allows a defendant to withdraw his or her plea of not guilty or no contest (or set aside a guilty verdict after trial) and the court dismisses the complaint.  The defendant's criminal record will no longer show they were convicted, but will instead show that the case was dismissed.  The record will always show that a case was filed against the defendant.  It just won't show up as a conviction.


Why get an expungement?

After an expungement is granted, a defendant can truthfully state on most applications for employment that they were not convicted of the offense for which they were charged.  This is because the effect of an expungement is that the defendant withdraws the plea and the case is dismissed.  However, an expungement does not relieve the defendant of the obligation to disclose the conviction 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.


An expungement also relieves a defendant of most other penalties and disabilities resulting from the conviction.  For example, a defendant who was required to register as a narcotics offender pursuant to Health & Safety Code section 11590 will no longer be required to do so.


Are you eligible for an expungement?

Penal Code section 1203.4 relief is available to any defendant who successfully completes probation, including those defendants who are granted early termination of probation. 


Successful completion of probation means: paying all fines and fees, completing court-ordered classes or programs (i.e. anger management, DUI classes, community service, etc.), and complying with any other terms of probation without receiving any violations.  Some judges will grant relief even if a defendant has a minor violation of probation, but it is within the judge's discretion to consider any violation as an unsuccessful completion of probation .


At the time of application, the defendant cannot be in custody or on parole or probation for any other offense.  The defendant cannot have any new pending charges and cannot be serving a sentence for any new offense.  Defendants who are ordered to serve prison time as part of their sentence are not eligible for 1203.4 relief.


Defendants who are convicted of a misdemeanor and are not sentenced to probation are also eligible for relief under Penal Code section 1203.4a.


What WON'T an expungement do?

An expungement does NOT restore gun rights.  If a defendant is convicted of a crime that makes it illegal to own or possess a firearm, they still MAY NOT own or possess a firearm even after receiving an expungement. 


An expungement also does NOT remove the requirement to register as a sex offender pursuant to Penal Code section 290.


The only way to remove these two restrictions is to obtain a certificate of rehabilitation and pardon.

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