Clear My Record (Expungement Process)

Jose H. Varela, Public Defender

Expungement is a legal term that is described in the article below. In reality, however, expungement means moving on to better things in life. Whether it is a scholarship, a career opportunity or just wanting to close a chapter in your life, expungement is a positive move. Expungement is a legal order that acknowledges that you have paid your debt to the criminal justice system and that your criminal history cannot be used to limit your personal opportunities.

While it is true expungements only help in some instances, you should nonetheless feel good about the commitment you made to qualify for an expungement.

Below you will find legal information on expungement. The section should answer the following questions for you: Who is entitled to an expungement?; Can a felony be expunged? Can a misdemeanor be expunged? If I was sentenced to prison, can I get an expungement? If the court grants an expungement, what does that mean?

The Marin County Public Defender hopes this information helps you during the expungement process. You should note that this information is very specific to Marin County. If your case is in another county, you must contact the public defender in that county to determine how they process expungements. Information for our department and other Marin County agencies available to do expungements is listed toward the end of this article. Please feel free to contact us if you have any questions about expungements in Marin County.

I. What is an Expungement?

An expungement results in the dismissal of a previous conviction. (See restrictions in Section II, below).

According to Penal Code §1203.4, an expungement is mandatory in any case in which a person was granted and successfully completed probation, without violation, or was discharged from probation early. Completing the conditions of probation specifically includes the full payment of fines and restitution.

The court has discretion to grant an expungement in the interests of justice, in other probation cases, but may not grant an expungement to a person who served a sentence in prison on a felony conviction.

Penal Code §1203.4a provides similar relief to a person convicted of a misdemeanor, but not granted probation. Relief is available under this section at any time after the lapse of one year from the date of sentencing, provided the person (i) fully complied with and performed the sentence of the court, (ii) is not presently serving a sentence, (iii) is not presently charged with any crime, and (iv) has, since being sentenced, lived and honest and upright life.

It is common to ask that certain felony offenses that are deemed wobblers be reduced to misdemeanors in conjunction with a motion for expungement. Penal Code §17(b) provides for such relief, in certain cases.

II. What Are The Effects of Expungement?

It Will:

  • Result in the dismissal of the case;
  • Allow you to answer on job applications that you have not been convicted. If, however, you are applying for a government job or a job which requires a government issued license, certificate or permit or a job which involves a security clearance, the conviction will be discovered;
  • If the conviction was for a felony, it is the first step in obtaining a pardon.

It Will Not:

  • Remove the conviction from your rap sheet. Your record will reflect a conviction and a dismissal pursuant to 1203.4;
  • Reinstate the right to possess firearms; however, a reduction to a misdemeanor may accomplish this if the offense is not one of violence;
  • Allow you to omit the conviction on applications for government issued licenses;
  • Seal or otherwise destroy the records.
  • Prevent the conviction from being used as a prior in a subsequent prosecution;
  • Prevent the conviction from being used to impeach if called as a witness;
  • Prevent the conviction from being considered and used to refuse and revoke government licenses and permits such as teaching credentials, foster care licenses, nursing licenses, bus drivers licenses etc…, however, the expungement will usually reduce the weight a licensing agency gives to the conviction;
  • Eliminate the conviction from consideration for immigration purposes.

III. Who is Eligible For an Expungement?

Any person who was convicted of a felony or misdemeanor, who successfully completed probation, is not now serving a sentence for any other offense, is not charged with the commission of a new offense and is not currently on probation.

In addition, any person who, after the passage of one year, was convicted of a misdemeanor and not granted probation may apply for expungement.

IV. Who is Not Eligible For An Expungement?

The following persons are ineligible for expungement:

  • Those who were convicted of a felony and sent to prison
  • Those who were convicted of the following sex related offenses: Penal Code §§ 286(a) 288, 288a(c), 288.5, 289(j) and a felony conviction for 261.5(d)
  • Those who were convicted of the following Vehicle Code offenses: §§ 2800, 2801 and 2803.

V. What Is The Procedure?

Time Limits

Upon filing the motion, the District Attorney has 60 days in which to respond. If there is no objection to the motion, an order will be forwarded to the Judge or Commissioner, for signature, and the motion will be granted immediately. If there is an objection, the court clerk will notify you of a court date on the motion, to be heard within 21 days of receipt of the District Attorneys opposition papers.

Service Requirements

The District Attorney, Room 130 and Court Clerk, Room C-10, must be served. You must additionally provide the Court Clerk with a self-addressed stamped envelope so that copies of the signed order or opposition papers and court date may be mailed to you.

Form of Request

You must complete Form CR180 and Form CR181. These forms are available at the Office of the Public Defender, in Room C-10, or using following links: Form CR180 and Form CR181. Alternatively, an attorney may file a formal motion on your behalf.

VI. Where Can I Go For Help?

  • The Office of the Public Defender is available to assist persons who are financially eligible. A nominal fee may be charged based on ability to pay. When contacting the office, ask for the Expungement Division and you will be referred to someone who can assist with questions, assist you in preparing the forms or who can represent you at any stage of the process.
  • The Probation Department is available to assist those persons who were on probation. The cost is $55 per case.
  • Contact the Lawyer Referral Service to assist in finding a private attorney experienced in criminal law. The cost for services may vary.
  • Legal Self Help Services are available to assist with a variety of legal concerns.

VII. How Much Will It Cost?

  • You may be required to reimburse the County of Marin for the actual costs for county services rendered, whether or not the petition is granted, up to $120. Ability to pay will be determined by the court.
  • Probation will charge $55 per case if the expungement is sought with their assistance.
  • The public defender may assess a nominal fee for services rendered, depending on ability to pay.

VIII. How Can I Get Started?

Contact the Public Defender and download Form CR180 and Form CR181 to get started.