Expunge Drunk Love

February 27, 2009 3:41 PM

Exactly how easy is it to get a criminal record expunged?

I have a couple misdemeanors on my record, one count of Disorderly Conduct and one Violation of Probation (plead no contest to both). Both events took place 6-7 years ago.

It's a black mark that has followed me for years, and I was wondering with what ease it is to get my record expunged, as well as what barriers may stand in the way of doing so.

In the time since, I have graduated college and kept a clean record, if nothing but a speeding ticket.

Interestingly enough, for one job I applied, they did a background search, and per mandate, I was also sent the results of said inspection, and only my federal and local (different county) records were checked, so nothing showed up.

I'm looking to apply for a position that necessitates a state-issued license (medical field), and as I understand, details of an expunged record must still be disclosed. Considering the details of my DC misdemeanor, it would paint me in a voraciously negative light. To what degree of detail would I have to divulge? Is it only really from an ethical standpoint that one must disclose an expunged charge, or would it show up on a background check that could be leveled against me in the hiring process if I claimed to have no prior history?

posted by anonymous to law & government (10 comments total)

It's stuck on your record forever. You can choose whether or not to disclose it to a potential employer, but if they do a background check, they'll see it.
posted by bondgirl53001 at 3:45 PM on February 27

The above is not necessarily true. The problem is that "expunged" is a word with multiple meanings. A background check may turn up your old records, but depending on the state you live in, there are options to reduce the visibility of these changes. For example, if you live in California, the forms are here: http://www.placercourts.org/?uid=53&ss=.

Background checks turn up a lot, though, but there can be oversights. I'm not terribly ethical, but even if you expect the background check to miss these misdemeanors, I'd consider divulging. Most employment checks don't care about misdemeanors, but a lot of state licenses, especially in the medical field, have vague clauses about "moral turpitude" and dishonesty about your past would definitely be a black mark.
posted by doteatop at 3:54 PM on February 27

If there were an easy way to do that, it would render the system useless. Is there anyone with a criminal record who wouldn't work to erase it?

I think that if you can get a pardon from your governor that your record would erased, but I'm not sure about that.
posted by Chocolate Pickle at 3:55 PM on February 27

There is a way to do get some records sealed so that they will only show up on very extensive checks, (like national security), but it will cost you court and lawyer fees and even then it's not a sure thing.

A friend of mine did it for a couple of DUIs.
posted by small_ruminant at 4:12 PM on February 27

I think he had to prove he'd turned his life around 100% and was a positive influence in his community and have people vouch for him and all sorts of hassle, but it was worth it.
posted by small_ruminant at 4:13 PM on February 27

Depending on the state, you may be able to have misdemeanors expunged or vacated. They can still show up in background checks, so you'll also want to seal them.

You could go with a local lawyer, but there are also companies that specialize in this, and they're less expensive. If your case meets the criteria, it's a relatively routine process and you probably won't need to make a court appearance yourself. Expect to pay at least $1000.
posted by qxntpqbbbqxl at 4:28 PM on February 27 [1 favorite has favorites]

doteatop is indeed correct. State laws vary, and some background checks will reveal expunged records. My advice is to expunge and disclose. Why risk it?

Having said that, consider what the potential employer is asking. Neither of your offenses sound like felony convictions, so if that is what they are asking for, there is no need to disclose. For example, in my state (NJ), we have disorderly persons offenses and indictable offenses. Only an indictable offense is a crime. So someone with a disorderly persons offense conviction does not need to disclose that if the employer asks if they have ever been convicted of a crime.

Consult a local criminal lawyer. In addition to being punch lines, we lawyers actually help people at times.
posted by leading question at 6:23 PM on February 27

IANYL and this is not legal advice, just information:

The answer depends on your location (both state and county) as others have mentioned.

In California the relevant penal code section is 1203.4. In summary, that section says that if you have successfully completed probation (in all your cases), paid all your fines, have nothing pending, are not currently in jail, and did not service a prison sentence; you can ask to have your case dismissed "in the interest/furtherance of justice." In fact, it is mandatory of all those conditions are met.

If someone is still on probation but is more than halfway through the term (i.e., 18 months completed on a 3 year probation term) then you can ask to have probation terminated early then seek dismissal per PC 1203.4.

If you were not given probation on your misdemeanor, then you have to wait 1 year before seeking expungement and meet the conditions of 1203.4a.

We used to call it expungement in California, but now it's just a dismissal according to the statutory language.

The Marin Public Defender has an excellent explanation and suggestions. Also see Kern county's presentation on 1203.4 dismissals:
Dismissal of Criminal Charges - Penal Code Section 1203.4
Here's a DUI website with an reasonable explanation - they suggest you need a lawyer to handle it, but there are MANY non-profits which will help with these dismissals, also many public defender offices will help you or refer you to a program which can help.

Some felonies can also be reduced to misdemeanors - these are called "wobblers" ... they can be charged as misdemeanors or felonies, and you can ask to court to reduce them to misdemeanors. The relevant Penal Code section regarding wobblers is PC 17(b). It's a separate motion, but it can be brought at the same time as your motion to dismiss under 1203.4. Some judges will let your orally move for this reduction if it was not included in your motion to dismiss under PC 1203.4. The DUI site and Marin PD site referenced above also addresses what a wobbler is.

A common reason to have a conviction expunged/dismissed under 1203.4 is for employment - successful expungement/dismissal often means you are not required to report your conviction when applying for employment (this varies for government and other positions, find out more before marking any such application). Though it appears on your record, it would likely be marked with a notation something like "dismissed in the furtherance of justice".

The language of PC 1203.4:

In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any new offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted.

The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery.

As a law student I worked with a non-profit which helped people with these 1203.4 dismissals. It is very helpful to provide your advocate (or yourself) with a copy of your criminal history from the Sheriff or from a state office ... this allows them to ensure your record qualifies you for dismissal, and if not, to help you understand why (and see if there is anything you can do about it).

If you do not qualify for a dismissal, you have several other options, not limited to: writ of error corium nobis (a late motion to withdraw your plea for good cause) or a pardon from the governor. Both are rarely successful and likely will require an attorney to advise you as to whether or how they could/should be sought.

Again, not legal advice, IANYL, do not rely on this for legal action. Just information.
posted by unclezeb at 7:12 AM on February 28

I also see that you mention that at least one misdemeanor was in DC - the information above would not apply to that conviction.

As for the scope of what must be disclosed on a medical licensing application, I am not sure. You may read the language of the applicable statute in your state (it might be clear on the subject), consult with a non-profit or public defender, and/or consult with a private attorney to get some clarification. But you ought to be clear what is required before deciding whether or not to disclose and to what degree - failure to adequately disclose could result in more charges, future licensing restrictions/problems, and many other issues you are best off avoiding by being sure about what you should do today.

It's unlikely that Mefi can adequately answer those questions.
posted by unclezeb at 7:19 AM on February 28

I don't *think* it's established that anonymous is in California. As it's been mentioned, it varies state by state. In Colorado, if you want a record sealed you have to file a civil action, give notice to a bunch of law enforcement agencies, and show up at a hearing (or nobody contests the seal and you get a default judgment in your favor). Then the record is sealed, and the only entities that can see it are law enforcement agencies.

That said, I would always err on the side of divulging the information if asked specifically about it. What sort of detail you go into is up to you. From what I can tell, it's always better to talk about it and explain what happened, since if you didn't disclose them and they're later uncovered, that's it, you're done.
posted by craven_morhead at 7:22 AM on February 28