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Expungement and Early Termination of Probation | Criminal Defense Attorneys in San Francisco & OaklandA petition filed pursuant to California Penal Code Section 1203.4, in a case in which probation was granted, allows a defendant to withdraw a guilty or no contest plea or verdict and enter a guilty plea, followed by dismissal of the case by the court. This process is commonly called an “expungement”, although it does not entirely erase the conviction from the public record. To qualify for an expungement the defendant must not be on probation or parole or serving a sentence in any case, and must not be charged in any pending cases. Provided that those conditions are met, the court must grant the expungement when all of the conditions of probation have been fulfilled for the entire period of probation or when probation was terminated early for any reason. It is a popular myth among probation officers that expungements are only available when probation was completed successfully, but a grant of expungement is mandatory even when probation was terminated early and the probationer failed to fulfill all of the conditions, as when fines and fees are unpaid. The court also has discretion to grant an expungement in other cases in “the interests of justice”.If probation was not granted, an expungement is still available in misdemeanor cases one year after sentencing if the defendant completed his or her sentence, is not charged with a new offense and is not serving a sentence in any other case. Expungements are useful in so far as they allow a person to legally deny the conviction with some exceptions. Applicants for a state or local license, for contracting with the state lottery, or for state office must disclose the conviction if questioned. The conviction can be charged against the defendant as a prior or separate conviction in future prosecutions. It also does not permit a person to possess a firearm if otherwise prohibited. Non-citizens applying for immigration benefits must disclose the conviction, although an expungement for a first-time simple drug possession conviction can be beneficial in immigration courts located in the Ninth Circuit (California and several Western states). Expungements are unavailable for infractions and certain sex offenses. The county hearing the petition may charge a fee of up to $120.00. A Superior Court has jurisdiction to terminate probation at any time, though judges are generally more inclined to do so when the probationer has successfully completed at least half of the probation period. A judge will also look more favorably on a motion to terminate probation when any jail sentence/work program has been completed and all fines and fees have been paid. Probation periods imposed as a result of a drunk driving conviction are exempted and must last at least three years. The experienced attorneys at Surowitz and Bell can assist with the preparation and aggressively argue for clients seeking expungement or early termination of probation in Oakland, Berkeley and other Northern California cities. |
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