Archives : 2006 : April
By: Edward Martinovich, Attorney at Law and Jay Mykytiuk
One of the underlying principles of criminal punishment is that the wrongdoer should pay his or her debt to society. Serious crimes usually require that the offender pay with his freedom, i.e., imprisonment. Lesser offenses might be punished with fines or restitution paid to the victims. An accompanying principle is that, once paid, and offenders debt is forgiven, and the slate wiped clean. To that end, California, like most states, permits certain offenders to expunge their criminal records. However, while expungement has certain practical advantages, its current application in California falls short of freeing an individual from their past mistakes.
California Penal Code Section 1203.4 provides the most common expungement relief. Under this section, an individual granted relief is released from penalties and disabilities resulting from conviction in any case in which the person has successfully completed probation. The individual may, for some purposes, treat the arrest and all subsequent proceedings as though they never occurred. Technically, what occurs when an individual expunges his record is his conviction or guilty plea is set aside by a judge, a plea of not-guilty is entered, and the conviction is dismissed. The statute allows misdemeanor and felony convictions to be expunged if the defendant was only given a sentence of probation, rather than state imprisonment.
Despite what Section 1203.4 offers, an individual who successfully applies for an expungement order may be unpleasantly surprised to find how little relief they have been granted. That is because Californias expungement law is more notable for the relief it does not provide than for the relief it does. First, the record of an expunged conviction continues to be made available to law enforcement and the public. The expunged conviction continues to appear in both California and FBI criminal records. In addition, if convicted of a subsequent crime, the expunged conviction can be used to enhance any imposed sentence. Section 1203.4 also specifically provides that DUI convictions will be used to enhance subsequent DUI sentences. Finally, expungement does not restore the right to own or possess a firearm.
Expungement of Record Doesn’t Mean All Is Forgotten
Even the most obvious practical advantage to having ones record expunged comes with a significant caveat. Although there is a difference of opinion in the legal community, the predominant view is that when asked on a job application whether one has been convicted of a crime, it is proper to answer no if the only crime on your record has been expunged. But dont be fooled: although the individual may treat the expunged incident as having never occurred, the state of California has a much longer memory. Since expunging a criminal conviction does not actually erase or seal the record of the crime, any potential employer who chooses to conduct a background check can easily find the court case file and evidence of the expunged conviction. Because of this, many job seekers with expunged records will feel compelled to disclose the conviction up front, and take their chances.
In many instances an expungement does not even permit the individual to deny the existence of the conviction. When applying for public office, peace officer position, or any state license, an individual with an expunged conviction is required to report that conviction on the application. This means that even an expunged conviction may prevent someone from being considered for a real estate sales license, teaching credential, bus drivers license, or security guard certificate. Oddly, Section 1203.4 even requires that an expunged conviction be disclosed when contracting with the California Lottery.
Advantages of Expungement
Certainly, expungement is not without its advantages. Many employers do not bother to conduct criminal background checks, and answering no when asked about prior convictions may help an individual secure the position he seeks. And the psychological and emotional benefits of wiping away a past indiscretion cannot be measured. Nevertheless, many of the benefits offered by California expungement are illusory. Is a record really expunged if it can still be viewed by anyone with Internet access? Has an individual been released from the penalties and disabilities resulting from a conviction if they can be denied employment or a state license because of that conviction? Clearly, the answer is no.
One can assume that California, like most states that have enacted expungement laws, recognized the difficulty criminal offenders might face when wishing to obtain employment. Presumably, the purpose of section 1203.4 was to allow certain offenders to honestly deny that they have ever been convicted of a crime. However, without also providing a mechanism for concealing criminal records from the public, the legislature has created an expungement statute that has little effect. Worse, Section 1203.4s lack of a true expungement remedy allows society to continue collecting a debt that California criminal offenders have already paid.
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