Eradication Instead of Expungement

In California, “expungement” of a record (under Penal Code section 1203.4) does not mean that the conviction never happened.  It simply relieves a person from the criminal penalties of their actions.  What are some other options?

Sealing the Record of a Minor

Unlike expungement of a record (under Penal Code section 1203.4), if the offense was committed before a person had reached the age of 18, the person may request to “seal” his or her record of conviction under Penal Code section 1203.45 and, if the court grants the petition, it is as if the prosecution of or conviction for the offense never happened.

Thereafter the conviction, arrest, or other proceeding shall be deemed not to have occurred, and the petitioner may answer accordingly any question relating to their occurrences.[1]

Youthful criminal indiscretions need not haunt you – or your ability to hold a license in California – forever.

Petitions for Factual Innocence

What if an arrest was truly a misunderstanding?  If someone really wants to wipe the slate clean, then using Penal Code section 851.8 would be beneficial.  This section provides for a petition for factual innocence, which statutorily declares that the arrest shall be deemed not to have occurred.  All records regarding the arrest and prosecution are sealed for three years and then destroyed, along with all records relating to the petition itself.  This petition must be filed within two years of the arrest or the filing of the accusatory pleading, whichever is later[2], so time may be of the essence.  Fortunately, early petitions are available and in cases where the charges are dismissed, the petition can be filed immediately[3].  Getting a quick factual innocence finding could prevent job loss, bad publicity, or security clearance denials.

[1] Penal Code section 1203.45, subdivision (a).
[2] Penal Code section 851.8(l).

[3] Penal Code section 851.8(c).

Credit:  Thanks to Sacramento County Bar Association’s Administrative Law Section Chair Heather Cline Hoganson for her article on Expungement in theSacramento Lawyer May-June 2012 Magazine.