Dismissal Or Reduction

Having a conviction on your record, or even merely a record of arrest, can have far-reaching consequences. It may hold you back from employment opportunities or professional growth, affect your eligibility for certain licenses, or be a source of personal embarrassment.

It may be in your interest to get an old conviction dismissed or your record otherwise “cleaned up.” If you were convicted of a felony it may be possible to get the felony conviction reduced to a misdemeanor. If you have successfully completed probation or have been discharged from probation early, it is possible to petition the court to set aside a guilty verdict or permit withdrawal of a no contest plea and dismiss the case. Not all cases can be dismissed and certain exceptions apply. Below are some remedies that may be available to you:

Eligibility for dismissal

Your conviction may be eligible for dismissal under PC 1203.4 or 1203.4(a). If you were sentenced to prison or if your conviction was for a serious sex offense* or for certain vehicle code infractions such as a high-speed chase with a police officer, your conviction is not eligible for dismissal. The eligibility requirements are generally that you must pay all fines, fees, and restitution, and have successfully completed probation or be discharged from probation early. If no probation was ordered, there may be a one-year waiting period prior to requesting that your case be expunged.

The benefits of a obtaining a dismissal include that you can say that you have “no convictions” when you are applying to most private employers (when applying to public employers or for positions to work in a health facility you must disclose your conviction, but you may note that it was dismissed). In addition, if you are trying to demonstrate rehabilitation, such as to a potential employer, housing agency, or licensing bureau, the dismissal may serve as helpful evidence. Dismissal does not prevent your conviction from counting as a prior or as a strike if you are later charged with a crime for which a prior conviction may enhance the charge. Dismissal also does not prevent the U.S. government from considering the conviction for immigration purposes. Dismissal also does not relieve the defendant of the duty to register as a sex offender, if imposed.

*PC 286(c), PC 288, PC 288(a), PC 288.5, PC 289(j), felony 261.5 (although this can be reduced pursuant to PC 17(b) and then dismissed).

Reduction of a Felony Conviction to a Misdemeanor

If your conviction was for a “wobbler” felony (a felony that could have been charged as a misdemeanor, or for which you did not have to serve time in prison), then you may petition the court to reduce your felony conviction to a misdemeanor under PC 17(b) and then petition the court to have the resulting misdemeanor dismissed.

Record of Arrest Sealed and Destroyed, or Reduced to “Detention Only”

If you were arrested but never charged, or if charges were filed but dismissed by the prosecutor, or if your trial resulted in acquittal, you may be able to have your arrest record sealed and destroyed. In order to get the record of arrest sealed and destroyed, you must show that there was no reasonable cause to believe that you committed the offense for which the arrest was made. This is a high standard. If you cannot meet this standard, but the charges were either never filed or dismissed by the prosecutor, or your trial resulted in acquittal, you may be able to get your record of arrest reduced to a record of detention only under PC 849.5.

Certificate of Rehabilitation

If you served time in prison, you may be eligible for a Certificate of Rehabilitation (COR) under PC 4852.01, which if granted becomes an automatic application for pardon from the governor. Obtaining a COR requires showing rehabilitation over a considerable amount of time, usually 7-10 years since your release from prison. A Certificate of Rehabilitation may relieve the duty to register as a sex offender, but only for a few offenses.

Exclusion from Sex Offender Internet Disclosure

If you were convicted of a sex offense, you may be eligible for exclusion from disclosure on the Megan’s Law Internet site, although you will still be required to register annually with your local law enforcement agency pursuant to PC 290. Approximately 25% of registered sex offenders are eligible to be excluded from public disclosure. Whether public disclosure is permitted is based on the type of sex crime for which you are required to register.

If you are interested in having your conviction expunged and would like to find out more information about how an expungement could help you, call criminal defense attorney Thomas Greenberg for a free consultation at (650) 242-0021.