Dear Mr. Tabibnia,
I was convicted of a DUI back in 2009. I’m still embarrassed by it. But worse, I keep being asked about this conviction on job applications and interviews, and I’m pretty sure that I’ve been denied employment, on a number of occasions, because of this. My friends tell me that I can have the conviction removed from my record. Is that true? Can you assist with that?
I understand how you feel, but there’s really no reason to feel embarrassed. We’ve had at least one past United States President and numerous successful public figures who have had arrests or convictions involving a DUI, so obviously, it’s not the end of the world!
Your predicament isn’t unique. In the past, a person’s criminal record was unlikely to be discovered by anyone. But today, with the emergence of information companies, indexing of criminal records into national databases and advent of new technology, it’s become a lot easier for potential employers, professional organizations and agencies to conduct background checks. So, it’s a good idea to look into what you can do about your DUI conviction. The good news is that it’s become relatively easy to expunge California criminal records. An expungement often offers you a "fresh start" from an otherwise questionable past.
Here are questions to ponder:
Are you eligible for expungement?
Generally, in order for you to be eligible to expunge your criminal records in California,
you need to meet the following criteria:
- You were convicted of a misdemeanor or felony offense.
- You successfully completed your probation in its entirety, including paying fines, and completing the required classes and community service.
- You are not currently being charged with a new criminal offense, are not on probation or serving a sentence for a criminal offense.
- You did not commit any new crimes while you were on probation for the underlying conviction.
When are you NOT eligible for expungement?
- If you were sent to state prison for the conviction.
- If you were convicted of a serious sex offense against children, including Penal Code 286(c), Penal Code 288, Penal Code 288a (c), or Penal Code 261.5(d).
How does an expungement benefit you?
- Helping you obtain employment – by law, a potential employer may not discriminate against you for a conviction that has been expunged.
- An employer may not even ask about an arrest that led to a conviction which was later expunged.
- Expunged convictions cannot be used to challenge or question your credibility as a witness in court.
- Expungements are often valuable in helping to secure or maintain California professional licenses and for joining many professional organizations.
- An expunged conviction may potentially help you to avoid certain immigration consequences of a conviction. You should consult with an immigration lawyer if you have additional questions.
What an expungement does NOT do for you
- An expungement will not reinstate certain California gun rights which were taken away as a result of the conviction.
- An expungement will not overturn a driver’s license suspension or revocation.
- An expungment will not end your duty to register as a California sex offender under Penal Code 290.
- There are other limitations to what an expungement will accomplish, including assisting with certain immigration issues.
How does the expungement process work?
To get a court to order an expungement, there are a number of steps that your attorney must follow:
- He/she must analyze and research the case facts and applicable law in order to determine whether your conviction is eligible for expungement.
- Your attorney must then file the appropriate paperwork and timely notify the prosecutor with the requisite 15 days’ notice prior to the expungement hearing.
- Your attorney must then attend any expungement court hearing that the court sets. Please note that, sometimes, the court will grant an expungement absent a hearing.
What if you violated or didn't satisfy your probation?
If you failed to successfully complete your probation, and you received a probation violation, obtaining an expungement becomes more difficult. Still, by law, the court has wide discretion to consider your application, and may hold a special hearing to assess whether you are still a good candidate for expungement.
In considering your application for expungement when there has been a probation violation, judges may consider a number of factors, including:
- Your overall performance while on probation,
- The severity of the underlying conviction,
- Any other criminal history you may have,
- Evidence of your character and background, including your ties to the community, whether you support your family, if you are continuing your education, the type of employment your are seeking, among others.
I hope this information helps. And please contact me if I may help you further!