Here at Sevens Legal, we have had numerous clients come to us over the years, asking about the differences between dismissal and expungement. Many assume these terms are interchangeable, but the reality is far more nuanced. In this comprehensive guide, we will delve into the intricacies of dismissal and expungement in California, exploring their unique implications and the benefits they can offer in restoring your rights and reputation.
Key Takeaways
• While many may think of a dismissal as an expungement, it is essential to understand that there are no true “expungements” available under California law.
• What is commonly referred to as an “expungement” in California is technically a dismissal of the conviction under Penal Code 1203.4.
• A 1203.4 dismissal is a post-conviction relief measure that allows individuals to have their criminal convictions dismissed, or set aside.
• Having a prior conviction removed from your record offers numerous benefits that can significantly enhance your quality of life and future opportunities.
• As San Diego’s leading criminal defense firm, Sevens Legal plays a crucial role in guiding clients through the process of seeking dismissal under California Penal Code 1203.4.
Our dedicated San Diego criminal attorneys understand the complexities of California law and are committed to providing you with the guidance and support you need. Contact us today at (619) 430-2355 to discuss your case and explore your options for moving forward after a conviction in California.
Understanding Dismissal vs. Expungement in California
What Does Dismissal Mean?
In California, the terms “dismissal” and “expungement” are often used interchangeably, but it is important to clarify their distinct legal meanings. What is commonly referred to as an “expungement” in California is technically a dismissal of the conviction under Penal Code 1203.4. This process is a post-conviction relief measure that allows individuals to have their criminal convictions dismissed, or set aside, providing a significant benefit in terms of clearing their criminal record and improving future employment and housing opportunities.
How Does Expungement Differ from Dismissal in California?
While many may think of a dismissal as an expungement, it is essential to understand that there are no true “expungements” available under California law. A dismissal under 1203.4 does not carry the same implications as a formal expungement. It is a misnomer to label this process as an expungement, as true expungements are akin to pardons and involve a different legal framework.
The Mechanics of a California 1203.4 Dismissal
What is a 1203.4 Dismissal?
A 1203.4 dismissal involves the withdrawal of a guilty or no-contest plea, the re-entry of a plea of not guilty, and the subsequent dismissal of the charges. This process is distinct from a pre-trial dismissal or motion to prove factual innocence, as it occurs after the defendant has already been convicted and served their sentence or completed probation. A pre-trial dismissal in San Diego refers to the legal process of having criminal charges dropped or terminated before a conviction occurs.
Eligibility Criteria for a 1203.4 Dismissal
To be eligible for a 1203.4 dismissal in California, the individual must have:
• Successfully completed their probation or served their sentence,
• Not been convicted of a new offense during the probationary period, and
• Paid all court-ordered fines and restitution.
It is important to note that certain convictions, such as some sex crimes in San Diego, may not be eligible for expungement under this statute.
Understanding When 1203.4 Relief in California is Discretionary
California Penal Code 1203.4 offers individuals the opportunity to have a conviction dismissed (often referred to as an “expungement”), but this type of relief can be either mandatory or discretionary. In certain situations, the court has the authority to decide whether or not to grant the relief. When 1203.4 relief is discretionary, the court will typically review several factors, including:
• The nature of the original offense
• The individual’s conduct during and after probation
• The individual’s efforts at rehabilitation, such as employment, community service, or educational pursuits
• Any new criminal activity since the conviction
• The impact of the relief on the individual’s future (e.g., job opportunities, licensing)
Here are some key scenarios where 1203.4 relief in California is discretionary:
1. Probation Violations
If you violated the terms of your probation—such as failing to complete court-ordered programs, missing meetings with your probation officer, or committing another offense during the probationary period—the court has the discretion to either grant or deny your request for 1203.4 relief. The court will consider your behavior since the violation and whether you’ve made efforts to rehabilitate yourself.
2. Certain Vehicle Code Violations (DUI and Serious Traffic Offenses)
Convictions that result in “two points” against your driver’s license, such as a DUI or other serious vehicle code violations, fall under the court’s discretionary power for 1203.4 relief. Even if you’ve completed all the terms of your probation, the court may evaluate the seriousness of the offense and the potential impact on public safety before deciding to grant relief.
3. Early Termination of Probation
If you apply for 1203.4 relief after seeking early termination of probation, the court has the discretion to grant or deny it. In this situation, the court will review how much of your probation you successfully completed, your compliance with the terms, and whether there are mitigating factors justifying early relief.
4. Cases Involving Serious Convictions
For some offenses, particularly those considered serious or involving moral turpitude, the court may exercise discretion when deciding whether to grant 1203.4 relief. This includes certain violent crimes or other convictions that might still pose concerns for public safety.
Benefits of Having a Prior Conviction Removed From Your Record
Having a prior conviction removed from your record offers numerous benefits that can significantly enhance your quality of life and future opportunities. In California, a post-conviction dismissal can erase the stigma associated with a criminal record. Having a clean record can also positively impact housing applications, professional licensing, and educational opportunities, as a dismissal allows you to truthfully state that you have not been convicted of a crime during the application process.
While a post-conviction dismissal under Penal Code 1203.4 can provide significant benefits, it is important to understand its limitations. A dismissal does not restore all rights lost due to the conviction, such as the right to possess firearms. This restriction applies to both felony and misdemeanor convictions, with certain misdemeanors resulting in lifetime federal firearms bans or a 10-year state ban. Additionally, the dismissal process does not affect certain federal laws or immigration consequences nor restore other rights typically lost by felons.
The Impact of a Dismissed Conviction on Background Checks
One of the primary advantages of a dismissed conviction is its impact on background checks, as individuals are not required to disclose these expunged convictions to potential employers, even after a conditional offer of employment has been made. The law, particularly under California’s “ban the box” legislation (AB 1008), prohibits employers from inquiring about criminal records until a conditional offer is extended, further protecting individuals with dismissed cases from discrimination based on their past convictions. Thus, a 1203.4 dismissal not only provides a fresh start but also enhances employment opportunities by allowing individuals to present themselves as having a clean record.
Will an Expunged Record Show Up on a Background Check in California?
When a record is expunged in California under Penal Code 1203.4, it essentially means that the conviction is set aside and the individual is released from all penalties and disabilities resulting from the offense. However, it is important to note that while an expunged record may not appear on most background checks, certain entities, such as law enforcement agencies or specific employers in sensitive fields, may still have access to this information. Therefore, while an expungement can significantly improve one’s chances of employment and housing opportunities, it does not guarantee complete invisibility of the record in all circumstances.
Exploring Post-Conviction Relief Options Under California Law
What is Post-Conviction Relief in California?
Post-conviction relief refers to the legal remedies available to individuals who have been convicted of a crime, even after they have completed their sentence.
Examples of Post-Conviction Relief Available
In addition to dismissal, there are other post-conviction relief options available in California. These options can include:
• Certificate of Rehabilitation: This can restore certain rights, such as the ability to own a firearm, and can also serve as a precursor to a governor’s pardon.
• Governor’s Pardon: A pardon can effectively forgive a conviction and restore certain rights, though it does not completely erase the record.
• Commutation of Sentence: This can reduce the length of a sentence or even change the nature of the conviction, such as from a felony to a misdemeanor.
Each of these options has its own eligibility criteria and can provide different benefits, such as restoring certain rights or mitigating the consequences of a conviction.
A San Diego Criminal Attorney’s Role in Petitioning for Dismissal
How Our Experienced Criminal Defense Lawyers Can Help
As San Diego’s leading criminal defense firm, Sevens Legal plays a crucial role in guiding clients through the process of seeking dismissal under California Penal Code 1203.4. Depending on the specific circumstances, this can involve:
• Evaluating the client’s eligibility for dismissal or expungement
• Preparing and filing the necessary legal documents
• Representing the client in court hearings and negotiations with the prosecution
• Advocating for the most favorable outcome
• Providing ongoing support and guidance throughout the legal process
Free San Diego Criminal Defense Consultation
If you or a loved one are facing criminal charges or seeking to clear your record in San Diego, we encourage you to take advantage of our free consultation. Our experienced San Diego criminal defense lawyers can review your case, explain your options, and develop a customized strategy to achieve the best possible outcome.
How to Contact Our Criminal Defense Attorneys
If you have questions about the differences between dismissal and expungement in California, or if you need personalized legal advice, our experienced criminal lawyers in San Diego are here to help. Contact Sevens Legal today at (619) 430-2355 to schedule your free legal consultation.
FAQs About Is Dismissal the Same as Expungement in California?
What crimes cannot be expunged in California?
In California, some criminal convictions are ineligible for dismissal, often referred to as “expungement.” Serious offenses, including certain sex crimes, particularly those involving minors, cannot be dismissed or removed from your record. Determining if your conviction qualifies for dismissal is essential to securing a fresh start, and an experienced criminal defense attorney can help clarify your options and eligibility.
What is the new law for expungement in California?
The new law for expungement in California is Senate Bill 731, commonly referred to as the California Clean Slate Act. The law, which took effect in July 2024, expands the eligibility for Californians to seek expungement or dismissal of their criminal records, encompassing a wide range of felony convictions, including those related to violent offenses. Additionally, the law mandates that the California Department of Justice automatically seal records of non-serious, nonviolent, and non-sexual felony convictions from public access.
How long does a conviction stay on your record in California?
In California, a conviction will generally remain on your criminal record indefinitely, unless it is dismissed or set aside through a legal process. The length of time a conviction remains visible can vary depending on the specific offense and the court’s record retention policies.
Can a defendant file a request for dismissal in California?
Yes, individuals with eligible convictions can request a post-conviction dismissal under California Penal Code 1203.4, often referred to as “expungement.” This process allows qualifying individuals to clear their record, helping them move forward without the constraints of a criminal history.
What does a petition for dismissal do?
A petition for dismissal, also known as an expungement petition, is a legal request to the court to have a criminal conviction dismissed, or set aside. If granted, the petition can lessen the impact of a prior conviction on the individual’s employment and other opportunities.