In adult court, expungement is a term used loosely to imply that a charge can be removed from your record completely. In reality, the only way to completely remove a charge is to have a “Declaration of Factual Innocence”. This can be something signed by the District Attorney’s office saying you did not, could not have done the crime and then endorsed by the court. It can also be a petition that you file without the agreement of the District Attorney but one that the court grants over the opposition of the District Attorney. You are innocent, which is very different than being not guilty. It is also very different from an expungement.Contact Us • 714.544.9844 • Free Consultation
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An expungement is a 1203.4 petition that allows you to withdraw your plea of guilty or no contest and enter a plea of not guilty. In order to file this you must be one year out from the date of your conviction OR have successfully completed your probation OR have your probation terminated early by the court.
The value of an expungement is that it allows you to say you have not been arrested or convicted of a crime. There are some situations where you still need to reveal this information such as if you are applying for a law enforcement position or a state license or entering into a contract with the state lottery. But in general, it allows you, on a job application for example, to avoid having to check the boxes and explain about an arrest or conviction. An expungement is really a legal maneuver that says you are relieved of your responsibility to disclose a prior arrest and conviction.
This does not mean, however, that the information cannot still be found in a diligent search of the internet. The court records are a matter of public record and can still be accessed by anyone looking for them. An expungement allows you to change your plea to not guilty after the fact. It does not erase the original arrest and conviction. Therefore you need to be prepared to answer questions about the conviction and not be fooled into thinking that no one will ever know just because a 1203.4 Petition has been granted. Still, it is important to prepare and file a 1203.4 Petition because it does allow you to rightfully say you have not been convicted and often times no further inquiry by employers will be made.
Minors are treated differently.
If you are a minor (under 18) or were at the time of a crime, it is a different situation. A minor, whose proceedings all took place in juvenile court, does not need an expungement to seal his records. If you are a minor, you can go to the probation department and ask to have your records sealed.
Even without sealing your records, you do not have to reveal any arrest and/or conviction that took place while you were a minor, as long as all proceedings were in juvenile court. That is because in juvenile court it is not called a conviction, it is called an adjudication.
Although sealing your records as a juvenile is not absolutely necessary, there is still value in doing that. Sealing affords you greater protection. An internet search shouldn’t reveal your records anyway but sealing the records gives you an additional level of security.
If, however, you start off in juvenile court and are subsequently transferred to adult court, then your records cannot be sealed. Similarly, if you receive a strike in juvenile court, it can be used against you later, as the strike cannot be sealed.
The laws in this area change frequently. The best course of action is to contact an attorney well versed in juvenile law. We are constantly updated on the latest changes in the law and practice extensively in Juvenile Court. Mr. Loewenstein began his legal career as a Deputy District Attorney assigned to Juvenile Court so he has been actively practicing in the Juvenile Court for many years.