Orange County Criminal Defense Lawyer Blog
Expungement in California used to be limited to Penal Code Section 1203.4. Under Penal Code Section 1203.4 an individual can petition the court to withdraw a guilty plea, a finding of guilt by a jury or court, and have the case dismissed. The arrest remained on the record but the defendant/petitioner could lawfully say that he was never convicted of a crime.
Now, a big change in the law has occurred effective January 1, 2018. If you have been acquitted, had your case dismissed after completing a program, or your case was never prosecuted you can ask the court to seal your arrest record. That means that as long as no conviction has taken place you probably can successfully seek to have the fact you were arrested sealed from public view. So, when an employer asks you if you have been arrested not only can you say “no”, the Department of Justice (DOJ) won’t report out that you were in fact arrested.
The legislation is found in Penal Code Section 851.91. The great thing about this legislation is that if you qualify under its provisions it is a matter of right and the judge cannot refuse to grant the petition. This is extremely important as the courts are often reluctant to or refuse to grant petitions under Penal Code section 851.8 (a declaration of factual innocence) even after an acquittal by jury. When a jury finds someone not guilty it technically only means the case wasn’t proven beyond a reasonable doubt. However, now when a not guilty is obtained the acquittal means that the arrest can be deemed never to have happened and the arrest record sealed from public view.
Because of the nuances of this new law it is more important than ever to hire an attorney who is familiar with the current changes in the law, thus ensuring the best result for you.