If you need to clean your criminal record and wonder ho to achieve that, this article is for you. Our Los Angeles criminal lawyers are experts in the field and have helped hundreds of individuals resolve this matter.
Here you will find all the information you need to know about how to expunge your criminal record. This process is formally known as expungement or sealing and has consequences for those with or without immigration status.
Contact one of our attorneys and request a private consultation. We will explain in detail everything you need to know on how to clean a criminal record.
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How to clean a criminal record in the U. S. in 2022
In California, you can clean your criminal record by setting aside a court judgment (Motion to vacate). It is important for several reasons:
- Work purposes;
- Academic purposes;
- Public reputation.
A history of a felony or misdemeanor can affect a person’s professional and employment development in many ways. From studying, to getting a work license, asking for a loan or being a member of a club.
This is possible through a lawsuit filed in a California court. Expungement of underlying criminal record is requested. That is, those that remain in the person’s criminal record or police record.
What is it and what is the objective of cleaning the criminal record?
The cleaning of criminal records, consists of annulling or eliminating from public view the criminal record of a person. In other words, it prevents a person’s resume and his professional or business career from being stained forever.
Who qualifies to clean their criminal record?
To apply for a criminal record clearance, certain eligibility conditions must be met:
- The convicted person was under 18 years of age when the crime or misdemeanor was committed.
- The crime / misdemeanor is not considered serious by law.
- A long time has passed since the crime was committed.
- It is the only crime for which the person has been convicted.
- The defendant successfully completed their probation and the judge’s orders.
- The defendant is not currently facing new charges for another crime.
- It is possible to prove the innocence of the person through a new trial.
Additional complications when expunging criminal records
However, it will be more difficult for the applicant to obtain approval for the expungement if:
- The victim of the crime/misdemeanor was a minor under the age of 18.
- They committed a crime of murder, rape, or sexual assault.
- They were convicted of certain weapons-related offenses.
- He or she was prosecuted and convicted of crimes of child pornography or human trafficking.
- Any other crime or misdemeanor included in the laws of the state.
Why is it important to clean a criminal record?
Many employers, professional associations, clubs, and licensing institutions often do background checks on people before accepting them. They use the services of data companies that provide this type of public information.
Although no employer or organization has the right to use this type of information against a person to deny them a job or membership, it is often used. It is assumed that after serving a sentence for a crime the person is redeemed, but it is not.
The benefits of clearing the criminal record can be summarized as follows:
- If the court agrees to clean the criminal record, the record will be expunged or sealed.
- When criminal records are sealed, no authority (police, court) can allow third parties access to this information.
However, in the United States, each state has its own rules on this issue. Consequently, there could be some record of the criminal record.
Benefits of a criminal record expungement
Cleaning a criminal record also allows the person to:
- Successfully pass a background check for a job or club membership.
- Buy or rent a house or any other property.
- Get a job in their area of work.
- Apply for bank loans or study at a university,
- Obtain a professional license or a teaching credential.
- Vote and generally enjoy full rights like any other US citizen.
And many other requests, without fear of being denied for this reason.
Limits on expungement or sealing of records
Record sealing has limits, as it only seeks to give people a second chance. That is why it is also known as the law of second chance.
Before requesting the sealing of criminal records, the following must be taken into account:
- The sealing of the criminal record will not be hidden from the view of immigration officials. Nor if he is charged with a hit-and-run in Los Angeles or arrested for drunk driving.
- Criminal records are erased from public view, but not from judges or police if the person reoffends.
- The clearance of criminal records is a different resource than the presidential pardon, the governor or the Special Council of Pardons.
- When a pardon or waiver is granted, the criminal record remains, but it is dismissed. As for the expungement or elimination of records, it is as if they had not existed.
- Likewise, when a person accused of committing a misdemeanor, is declared innocent, they can request a Certificate of Innocence.
Process for requesting a criminal record expungement in California
There are several steps to request the sealing or expunction of a criminal record in California. Having the assistance of an expert criminal defense attorney in the area increases the guarantees of success:
- Check with your trusted attorney if you are eligible for this type of relief.
- Study the case in light of current law.
- Collect and submit all the documents necessary to make the request within the time limits established by law.
- Provide the District Attorney with the request well in advance.
Do it at least 15 days before the expungement hearing is held. This will give you plenty of time to review the case and file an objection if you wish.
- Remember to attend the hearing in the designated court with your legal representative at the scheduled date and time.
How to find out someone’s criminal record
To request this information in court you must know:
- Number of the case or file.
- Date of conviction.
- Charges, code name and section under which they were convicted.
- Court verdict on the case, as well as statements, appeals and whether or not there was a dispute.
The court is also likely to ask the following questions:
- Did you get probation on bail or restitution?
- Did the court order you to comply with periodic filings? If so, for how long.
- Did you comply with the terms and conditions that the Court imposed for parole?
- What prison (federal or state) did you serve time in? If appropriate.
- On what date did you complete your sentence and get out of prison?
- What date did parole end? Was he released under this regime as well?
How to clean the criminal record through a petition to prove innocence?
This is another way to cleaN criminal records. Those who has been wrongly accused of a crime can prove their innocence. For this, they must petition the court and submit the evidence that proves that they are innocent.
Whether the person has been charged or remains under arrest. Although not an easy path to acquittal and sealing of criminal records, it can be explored by the defense.
If the petition is successful, the case files and charges are sealed for three years. They must then be destroyed by the court.
It is advisable to file the petition no later than two years from the date of the arrest or indictment. Unless there is a justified cause by the defense attorney for not doing so within that period.
How to clean the criminal record through the modification or termination of probation?
Individuals who are on parole can have the terms of their parole modified. Sometimes it is also possible that this regime ends earlier, depending on the fulfillment of the requirements.
Normally, probation ends when the accused serves between two and three quarters of the sentence. It is an essential requirement to achieve the clearance of the criminal record, that the person has completed probation.
Expungement of criminal record for drugs
Drug-related crime case files can also be sealed. provided that the applicant has benefited from a program in freedom. For example:
- Sentence reorientation;
- Deferred Judgment; or
- Proposition 36.
Applicants are required to have:
- Demonstrated good behavior while serving the sentence.
- Received up to twelve months of drug abuse treatment instead of prison time.
- Been convicted of non-violent drug possession, in the case of the first and second time defendants.
- Have successfully completed all requirements of your drug rehabilitation program,
- Have a criminal record already modified, where the dismissal is evidenced.
Provisions of California law
- Failure to complete these requirements or violating probation will result in the conviction continuing to appear on your criminal record.
- Those convicted of possession of marijuana for personal use do not need to obtain a dismissal or expungement of records for this crime.
- After two years, any conviction for possession of marijuana for personal use is automatically expunged from the criminal record.
These benefits are referred exclusively to drug possession offenses for personal use. It does not apply to other crimes such as cultivation, sale or transportation. In our website you can read everything on the marijuana laws in California.
Motion to vacate
Some individuals who do not go to trial after a claim against them is admitted may be tried in absentia. The court bases its ruling on the version presented by the plaintiff without the need to listen to the other party.
If the condemned person later wants a new trial to be opened, they must get the judge to annul the ruling against him. They must allege a valid reason for not having attended the trial. In this way, the court is expected to annul the ruling and decide to start a new trial.
- The term “Vacate” in this case means “annul”, erase, eliminate or cancel a conviction or judgment.
- The California Penal Code (section 1473.7) allows individuals who are at liberty to file a motion to vacate a sentence in a criminal case.
- The motion to vacate is a judicial remedy used to request that the court clean up a person’s record.
- Generally, reasons of illness, serious emergencies or not having been adequately notified, among others, are cited.
- The motion seeks to have the court reverse a previous judgment, order, or judgment of a court.
- To request the motion, the attorney must file a brief with the court that the judge must consider.
When must the motion to vacate the judgment be filed?
Before Penal Code section 1473.7 went into effect (January 1, 2017), there were limitations on challenging convictions. Most people had very little time to oppose a sentence.
- Generally, this was done by filing a habeas corpus petition while in prison.
- When they were released from jail or parole custody, they lost the right to expunge the conviction.
- With the motion/petition to vacate the sentence, this changed. The person can make the request within a reasonable time after the judgment. It may be after the defendant is notified by the court to appear.
- Depending on the legal matter in question, the filing of the application can range from 30 days to 1 year.
- After studying the case, your criminal defense and immigration attorney will be able to better pinpoint when it is most appropriate to do so.
Filing a motion to vacate the judgment assumes that there is a strong case. Doing so without sufficient evidence and legal argumentation can lead to its dismissal.
The judge would then order the petitioner to pay the legal costs along with the other party’s attorney’s fees.
Our criminal and immigration attorneys can help you better understand the law, how to clean your criminal record, and your rights as an immigrant. Call now and request a confidential, no obligation consultation. We will answer all your questions on the subject.
How is a judgment annulled?
In these cases, make sure you have the best legal representation in Los Angeles. You will then need to:
- Fill out Form SC-135 , Notice of Motion to Vacate Judgment and Declaration (Small Claims)
- File it with the clerk of the small claims court.
- Pay the filing fee. If you cannot pay it, you can request a fee waiver.
Ways to Vacate a Judgment in California
Although there are several ways to apply to vacate a judgment in court, here are the four most common:
1. Discretionary measures under Section 473(b) of the CCP
Filing a motion to vacate a judgment or default for “error, inadvertence, surprise, or excusable negligence” in accordance with the provisions of Code of Civil Procedure section 473(b) .
- The discretionary motion for relief, as it is known, is the most widely used method in these types of proceedings. The judge has the power to grant or not the motion submitted.
- It is submitted when a party receives the summons from the court and for a reason of force majeure cannot appear.
- To file this motion it is prudent to do so within the six month period. California courts count this period from the date of the initial notice of judgment and failure to appear.
- The applicant has the obligation (burden of proof) to show that he acted diligently when notified of the sentence.
There are three essential requirements that the petitioner must satisfy when filing the motion for discretionary relief with the court:
- Prove that you promptly requested compensation for non-payment from the Court.
- Reliably demonstrate the error, inadvertence, surprise or excusable negligence.
- File with the motion a copy of the proposed pleading at the time of the hearing or sooner.
2. Mandatory relief or waiver under section 473(b) of the CCP
An affidavit of guilt from an attorney must be used that “proves their error, inadvertence, surprise or negligence” and consequently nullifies any:
- “Resulting breach entered by the clerk against their client, and which will result in the entry of a default judgment”; or
- “Resulting default judgment or dismissal entered against your client.” “Unless the court finds that the default or dismissal was not in fact caused by attorney error, inadvertence, surprise, or negligence.”
If the court accepts and approves the motion, the attorney will be required to pay the reasonable legal fees and costs of the proceeding.
When the court awards a remedy for a breach, default judgment, or dismissal under any of these provisions, it may:
- Impose a penalty of not more than $1,000 on the offending attorney or party.
- Order the attorney to pay an amount not to exceed $1,000 to the State Bar of California client security fund.
- Grant any other type of relief you consider.
What is the difference with the request under section 473 (b), discretionary measures?
- In no way will the repair of a ruling for any reason depend on the payment made by “the lawyer of compensatory fees or legal costs or pecuniary sanctions imposed by the court.”
In other words, the judge cannot make reparation conditional on the payment of court costs or the penalties imposed.
- The other difference from the section 473 procedure is that:
- The six-month period begins to run from the time the court issues a judgment or dismissal. Not when the breach is entered.
- The court is obliged to make the repair, since it is not discretionary.
- It does not require that the reason for the “attorney’s affidavit of guilt” be excusable. It means that the court must grant the reparation.
The affidavit presented to the court must be signed by the lawyer to be admitted.
3. Motion to vacate judgment under section 473.5 – Lack of actual notice
When the court does not give proper notice of a decision, you can also appeal and ask for the decision to be annulled. The argument will be that the summons to the plaintiff did not allow their defense, because there was no real notification.
In other words, the notice was not delivered on time, therefore, the plaintiff could not defend himself.
- Unlike the two previous motions, here the term to appeal the sentence under section 473.2 is greater than six months.
- But in no case can you:
- Exceed two years after the sentence is issued; or
- 180 after the court has notified its decision in writing.
- The motion to vacate the judgment under section 473.5 is usually filed when notice is not given in a reasonable time, because:
- It was not made at the plaintiff’s current address.
- It was not delivered personally and into his hands; or
- The interested party was notified by publication.
4. Motion to vacate judgment under Civil Code section 473(d)
The fourth procedure for requesting the setting aside of a judgment for default in California is contemplated in section 473(d) of the CCP. Here the claim of the plaintiff is that the judgment of the court is null.
The law provides that at the request of the interested party, the court may:
- Act ex officio to “correct administrative errors in your sentence or orders as issued, in order to adjust to the sentence or order directed”; AND
- It may also “at the request of either party,” after notice, “set aside any null judgment or order.”
- When the ruling is null, there is no time limit for filing the motion to vacate.
The Code of Civil Procedure clarifies that a sentence can be considered null for:
- Lack of jurisdiction of the court over the matter or the accused party.
- Exceed their powers or jurisdiction.
- Missing or incorrect notice of citation.
- Defect entered incorrectly.
- Judgment in default that exceeds the amount demanded in the lawsuit.
What happens during the judgment setting aside hearing?
Upon receipt of the request, the court clerk will set the hearing date. At that time, the judge will decide whether or not to annul the sentence.
Before the hearing, the defense attorney should help you prepare. Then, during the hearing, if the judge vacates the judgment then:
- A new trial is started and the person will have the opportunity to submit their arguments; or
- The court sets a new date for the trial to begin.
If the new proof is at that time, the person must be very well prepared. Here the advice of an expert criminal lawyer is key.
- You must submit irrefutable evidence to the court as to why you did not appear at the first trial. It could be a medical report or a bill from a hospital that proves you were sick.
- It is necessary to promote all the evidence or witnesses that serve to prove the case.
- If you do not have the evidence or the witnesses cannot attend, you must ask for a continuance of the hearing. Sometimes judges accept witness testimony in writing.
The most important thing is that when narrating the version of events the person sounds sincere. The story must be convincing to the court.
Can I appeal the court’s decision?
If at the hearing the judge does not overturn the ruling, the law allows you to appeal the court’s decision. This is done through Form SC-135, Notice of Petition to Set Aside Judgment and Declaration.
The deadline to appeal the decision is 10 days, counted from the hearing.
How to appeal the denial of the motion to vacate?
To appeal the judge’s rejection of the petition for annulment, you must:
- File an appeal with the clerk of the small claims court.
- You must use Form SC-140, Notice of Appeal, and check the box for “Deny Motion to Vacate Small Claims Judgment.”
On the other hand, if the judge admits the arguments as to why they could not appear at trial and agrees to the requested measure, it may happen that:
- The judge hears the case at that time; or
- Send the case back to small claims court and start a new trial.
Note: The date for the new trial will be notified by the clerk through the mail.
In the event that the judge denies the appeal, the applicant must abide by and comply with the original decision.
Deadlines for requesting the motion to vacate
- The defense has 30 days to file the motion or petition to vacate the judgment. From the date the court notified its decision, through the Notice of Publication of Judgment (form S-130 or form SC-200).
- This period is extended to 180 days if the convicted person did not receive proper notice of the lawsuit against them (Form SC-100). The account begins to run from the moment the convicted person discovers the judgment against them.
How long does it take to clean criminal records in the United States?
The delay to clean the criminal record depends on the type of crime charged and the academic credentials.
1. Waiting times according to the type of crime
- For a successfully served sentence of supervision, the time to expunge the criminal record is 2 years.
- For crimes that are not considered serious (including Class 4 convictions and first offenses), it is 3 years.
However, some crimes must wait up to 5 years before you can file a record seal petition:
- Sexual abuse and other sexual crimes.
- Domestic violence.
- Driving without insurance and having an accident.
- Registration suspension for driving without insurance.
- Insurance card fraud.
- Supervised release (first drug offense or other crime).
In other cases, such as those mentioned below, a criminal record sealing can be requested at any time:
- Release Without Charge (RWOC).
- No probable cause.
- Case dismissed.
- Judgment overturned or reversed.
- Sentence of not guilty.
Some courts do not allow arrests and dismissed cases to be sealed when the person is serving a sentence. Nor, when required by a court due to a new case.
For the following cases, the waiting times are:
- Release under supervision. 2 years.
- Qualified sentences and supervisions for misdemeanors or a single serious one. 3 years.
2. Waiting time according to academic credentials
Those who have earned a high school, college, or career technical diploma or GED enjoy certain privileges.
- They can apply to request a record seal before the waiting times mentioned above; or
- They can get their case sealed immediately, if they were found not guilty or the case was dismissed.
- This request can be made during the hearing where the defendant is declared innocent.
To expunge or seal (clean) a criminal record, some courts require the prepayment of a fee.
How long does a criminal record for DUI last?
The waiting time to file a request to expunge a criminal record for alcohol or other substance abuse while driving is 5 years. You can find more information in our article on driving under the influence of alcohol or drugs (DUI).
Is it possible to eliminate misdemeanors or infractions in California?
Yes. After the court dismisses a misdemeanor conviction or infraction, it is possible to remove it from the criminal record. In legal terms, it means that the person was never convicted of that crime.
Can a felony be reduced to a misdemeanor?
If the person was convicted of a felony on parole and the crime is considered a wobbler, that is possible.
At your request, the court may sentence the felony as a misdemeanor. This is established by Penal Code 17(b)(3).
The court must justify its decision taking into consideration the crime, the offender and the public interest.
What are the benefits of reducing a felony to a misdemeanor?
There are several benefits to reducing a felony charge to a misdemeanor charge under PC 7(b). Among other things because the person can:
- State they were never convicted of a felony. This is very important for those applying for loans, employment or housing.
- Obtain and maintain professional licenses.
- Become a jury in any trial for which they are summoned;
- Regain their right to bear arms in California. Those who are convicted of a felony lose this right.
Can a war veteran be dismissed for a criminal conviction?
War veterans who are criminally prosecuted and have a mental health disorder as a result of service in the US armed forces, may have their conviction dismissed.
The only condition is that the veteran successfully serves the sentence while on parole.
Is it possible to seal juvenile records in California?
Yes. To seal the criminal record of a young person, a petition must be filed with the court, in accordance with the provisions of the Welfare and Institutions Code 781.
The section on Guardianships – Modification of Judgments and Juvenile Court Orders, states that the petition can be filed if:
- The person was admitted to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities” (CDCR);
- They turned 21 years old; AND
- They completed their period of parole supervision after leaving the division”; or
- They were not admitted to the CDCR, and
- They turned 18 years old.
- You have completed any period of probation supervision related to that court-imposed offense.
If at the conclusion of the hearing, the court determines that the young person meets the eligibility requirements:
- Has not been convicted of a felony or a misdemeanor involving moral turpitude; AND
- He has been rehabilitated to the satisfaction of the court.
They must order the sealing of all records (documents and exhibits) of the case in the custody of the juvenile court.
This includes the juvenile court record, as well as any other entries in that court and any agency.
Benefits of sealing a juvenile criminal record
- Five years after the juvenile court records were sealed, the court must order their destruction. Unless there is good cause for the court to determine that they should be preserved.
- It will be considered that the judicial procedure never occurred, so the young person will not have a criminal record.
- Only a judge and a prosecutor will be able to access the sealed records for the purposes of an investigation of a qualified crime, before they are destroyed. But such information may not be disclosed to other agencies.
Our criminal defense attorneys can help you clean your criminal record in California. We also offer representation in Los Angeles Immigration Court.
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