When to get an Expungement on a Criminal Case in California

Did you know that planning for an expungement should be considered prior to pleading guilty or no contest in a criminal matter?  Defendant’s often times feel that they have so much on their plate while fighting a case they do not stop and ask the question, how can I clean up my record in the future? 

First of all, if you plead to a felony charge and get state prison, then you cannot expunge your record because 1203.4 of the California Penal Code states that you must successfully complete probation and going to prison is not probation.  Under the current realignment law, going to County Prison is also precluded from an expungement since the defendant is serving time and then placed on mandatory supervision and not given probation.

Secondly, you must complete probation successfully.  Any violations of probation can hinder you later getting an expungement because it tells the court you may not have been a model probationer. 

Next, you cannot expunge a case if you were not given probation.  Now there is an exception to this rule.  If you were not given probation on a misdemeanor or felony case or if you plead to a infraction case (excluding several driving ticket infractions) you may get an expungement if one year has passed.  Infractions were recently added to list of cases that can be expunged; however, don’t be fooled, you cannot expunge most driving offenses so if you are looking to clean up your driving record, the DMV will not remove those offenses from your DMV history printout.

The court will review your case and determine if you currently remain free from any other criminal charges, you are not on probation in another case anywhere or do not have any pending cases or suspended time against you.   The court will deny an expungement if they learn that you have an unpaid ticket on an unrelated matter.  Remember, they are looking at how you currently served on probation and whether or not you have fulfilled other obligations on all of your cases in the past.

What if you are on probation now and want to get an expungement?  Your best bet is to make sure you have fulfilled all your obligations to the court.  Once that is done and your have completed at least a year of your probation, then you can request an early termination of your probation and seek an expungement.  Judges are hesitant to breach the agreement your signed requiring a longer probation period, but usually weigh and consider the need to obtain the expungement with your current conduct up to that point.   Many times attorneys negotiate in your original plea bargain agreement the right to come back after a year or 18 months to request an early termination of probation and expungement.  Often times the District Attorney will agree not to argue against this request so long as the defendant has fulfilled his or her obligations to that point without any violations.  This is why a defendant should always be focused on the future and what lies ahead and always be asking questions and consulting their lawyer so that when that day does come, an expungement can take place immediately and then be effective to help the one seeking it.