Expungement of Felonies, Misdemeanors and Infractions
In most states the law defines an expungement as the obliteration, strike out and destruction of information regarding a criminal charge.
In California, expungement is known as a “dismissal”. This is because getting an expungement requires reopening a case, where you enter a ‘not guilty’ plea in order for charges to be dismissed. After dismissal, the case disappears from your record.
Eligibility for expungement in every state usually differs based on three distinct categories of the crimes committed and their subsequent convictions. which include:
Expungement of Infractions
Infractions (or violations) refer to petty offenses such as speeding tickets and now, in California, some drug possession crimes. Perpetrators of petty offenses do not usually serve jail time (though each case is different) but are sentenced to pay a fine, and possibly perform some type of community service. The accused can receive a bench trial, where only the judge will determine innocence or guilt, depending on the case. In other cases, the defendant may choose to have a juried trial.
Infractions can affect your record no matter how minor they are. And, they are not removed from your record after a certain amount of time passes. You have to get an expungement so that infractions don’t show up in background checks.
Infractions are eligible for expungement in a majority of states. In California, infractions became eligible for expungement from 2011 after a change in the California penal code that allowed expungement for infractions such as:
- Petty theft
- Possession of marijuana
- Disturbing the peace
- Some types of fraud
- Purchasing alcohol illegally (underage)
- Failure to appear
Such infractions can be expunged as long as:
- 1 year has passed since you were sentenced
- You have paid all fees, fines, and restitution
- You are not currently facing new charges
- The infraction was not a vehicular infraction
Expungement of Misdemeanor convictions
Misdemeanors are criminal offenses that are punished by a jail sentence of up to 1 year, and fines. Standard misdemeanors such as petty theft carry a shorter sentence.
Severe (also ‘gross’ or ‘aggravated’) misdemeanors like domestic battery carry the full 1 year jail sentence. Misdemeanors are tried in front of a jury and require legal representation.
Your misdemeanor conviction can get expunged if:
- Your conviction took place in a state court
- You have served your probation
- If you did not get probation, a period of one year since your conviction must elapse
- You have paid all fines
- There are no open charges on your record
- Federal convictions are not eligible for expungement
It is possible to expunge a misdemeanor or felony verdict even before you finish your probation. The court can order your probation to be terminated and grant you expungement. The court can also use its discretion to expunge Misdemeanors such as DUIs.
Expungement of Felony Convictions
Felonies are the most serious criminal offenses. Sometimes felonies will involve serious bodily harm to victims. White collar crimes are also classified as felonies. Felonies are tried in front of a jury and legal representation is highly recommended. The penalty for felony crimes is death or a sentence exceeding 1 year in a state prison. Depending on the nature of the felony, the sentence can also be served in county jail.
Laws for expungement of felonies are strict in most states. In California, a felony is expunged only if the prison sentence was served at a county jail (Theo Lacy, Musick, Robert Presley, Larry D. Smith, Men’s Central, Century Regional, San Bernardino, West Valley Detention Center, Ventura County Jail, Central Detention Center).
A person who served a felony sentence at a state prison is not eligible for expungement, but can get a certificate of rehabilitation or a pardon from the governor. A certificate of rehabilitation serves to confirm that you have not broken any laws after your prison sentence. It is given seven years after your sentence and could result to some rights being restored. It will however not result in erasure or sealing of your records.
Your lawyer could also petition the court to reduce your felony to a misdemeanor charge. Reducing a felony to a misdemeanor allows for restoration of more rights after expungement. This process does not apply for felonies such as those which resulted in the loss of life (murder, felony manslaughter) and sexual offenses.
The process for petitioning the court for an expungement is much easier when done through a lawyer. For instance, an infraction expungement can be granted within 6 to 12 weeks if you use an attorney. Employing the services of an attorney familiar with the expungement process can help your expungement be granted much faster than if pursued without one.