Sunday, January 21, 2007

Expungements--What They Don't Do

Many clients approach me wanting their criminal record cleared or expunged. Assuming they qualify, I must petition the Court to vacate their previous gulty plea and enter a plea of not guilty. If the Court does so, many regard their record as sealed but it is not. The statute still requires that you disclose your conviction in response to a direct question when applying for a government job, applying for a license (doctor, lawyer, accountant) or when contracting with the California lottery.

The California Judicial Counsel goes further saying you must answer a direct question about convictions from any potential employer, public or private.

More importantly your criminal record is not sealed. Your arrest still appears on police rap sheets, and in Court files. In can be used to enhance your sentence in later convictions. Investigative private agencies can and do get this information for private employers. Once the information is obtained by any agency it is shared with all much like a credit report.

The exceptions to the cleansing effects of expungement are so wide you could fly a 747 through them. Attorneys who tell you this procedure frees you up for a new life either don't know what they are doing or are dishonest.

There is a procedure which actually results in the destruction of your criminal records but it requires that you prove you were "factually innocent" of the accusation with which you were charged. Few people are able to prove this. There are also Prop 36 dismisals which will erase certain drug arrests (usually those for personal use). But even here if any investigative agency has a record of your arrest, it stays out there waiting for someone to request it.

There are advantages to expungements, particularly in immigration cases. Be careful, however, of what you are promised before forking over $1500 to a private attorney to "rehabilitate" your record.


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