Types of Record Clearing

Unlike an expungement, a pardon acts as the forgiveness of a certain crime and the cancellation of the current penalty. This process is usually done by a head of state or high level government official. Clemency is also the forgiveness of a crime but does not always cancel the entire penalty associated. With commutation and remissions, the penalty is lowered without the forgiveness of the crime. Therefore the subject is still considered guilty of the crime. While a reprieve is merely the temporary postponement of punishment.

In most cases, pardons are granted when individuals have demonstrated that they have fulfilled their debt to society or for some other reason the decider finds them to be deserving. Such as Presidents famously give a “presidential pardon” to those he or she wishes as they end their term in office. Many times pardons are given to those who are wrongfully convicted or claim so. It is not common for wrongfully convicted subject to be granted a pardon. In most cases the subsequent actions are dealt through an appeal back in criminal court.

The California penal code of 1203.4 is the law for those cases in which probation is granted while 1203.4a is for those cases where probation is NOT granted and a terminal sentence is imposed by the court. Although these two penal codes are both considered an expungement, there are major differences between the two and the subsequent relief granted under each code.

DUI expungements mostly fall under 1203.4 because it is very rare for a DUI conviction to result in a non-probation disposition with a terminal disposition imposed. The court does this to obtain leverage to discourage the defendant for future run-ins with the law. If there were no probation the law has no leverage.

As it pertains to misdemeanor charges in California, 1203.4 is the only relief available for those convicted.

An expungement under 1203.4 is the only relief available for those convicted of misdemeanors in California. Absent a finding of factual innocence pursuant to California Penal Code Section 851.8. If an expungement is granted, the subject "is to be released from all penalties and disabilities resulting from the offense of which he or she has been convicted," subject to certain exceptions.

An example of one of these exceptions is California Vehicle Code Section 13555. This section provides that any DMV APS action that was imposed as the result of the DUI conviction remains unaffected by an expungement.

Also, an expungement can be used and held against you if you are ever involved in a DWI related event in the future. In other words, an expunged DUI conviction can still be used for purposes of alleging a prior.

Giving proper notice of an expungement to the correct parties is crucial for your expungement to be processed correctly and be successfully completed. If proper notice isn’t given, the court will not grant the expungement motion. The expungement law clearly states that…

“California Penal Code Section 1203.4 (d) and (e) explicitly state that “No relief shall be granted under this section unless the prosecuting attorney has been given 15 days’ notice of the petition for relief. The probation officer shall notify the prosecuting attorney when a petition is filed, pursuant to this section. It shall be presumed that the prosecuting attorney has received notice if proof of service is filed with the court. If, after receiving notice pursuant to subdivision (d), the prosecuting attorney fails to appear and object to a petition for dismissal, the prosecuting attorney may not move to set aside or otherwise appeal the grant of that petition.”

In some cases, costly time is wasted where subjects have to re-file for an expungement several times until it is properly written, served and filed. In some cases if an expungement is not filed correctly it can hinder your chances of appealing or doing it over again. The bottom line. GET IT RIGHT THE FIRST TIME.

Anyone could argue that privacy is one of the most important life factors in today’s society. A common question clients ask our office is, “who can actually see my record?” As internet hacking has become more and more of an epidemic, our clients have found that knowing that even if someone does obtain my record without permission, it will not reflect a criminal conviction which can be very embarrassing. We have discovered that in Los Angeles, certain employers use unexpunged cases in potential employee’s criminal history as leverage to exploit you. A common example of this is by only offering the job at a very lower pay rate.

Years ago, it was only those in the legal system who had access to your criminal records; the times have changed. Anyone with hacking knowledge can obtain your record and exploit it any way they wish. Filing a successful expungement is your best option to try to protect your privacy and your rights in the vast majority of cases.