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- Request Your Rapsheet From the California Department of Justice
The first step to expungement is to figure out what is on your record. To do that, you need to request your rapsheet from the California Department of Justice (“DOJ”). The Attorney General provides instructions how to do that here: https://oag.ca.gov/fingerprints/record-review. Basically, you fill out a form (form BCIA 8016RR), take it to a business that has fingerprinting services (like UPS), pay a $25 fee, and voila, the DOJ sends you a copy of your rapsheet. Awesome, now what?
- Find All Your Convictions
If an arrest resulted in a conviction, there will be a section on the rapsheet that says “Convicted: misdemeanor” or “Convicted: felony.” Those are the convictions that may be able to be expunged. (As an aside – Arrests that did not result in convictions generally remain on your rapsheet, although two exceptions would be a petition for factual innocence under Penal Code section 851.8 and a declaration of detention only under Penal Code section 849.5. But those sections are for another guide.)
- Qualify for Expungement
To be eligible for expungement, you must not have any open cases, not be on probation in any matter, have paid all your fines and fees on the conviction that you are seeking to get expunged, if you were not granted probation on a matter then you must wait one year from the date of conviction to file for expungement, and you must petition the court where your conviction was entered. For example, if you reside in San Francisco County, but you want to expunge a DUI you were convicted of in Alameda County, you must go to Alameda County to petition the Court for expungement.
- Use the Proper Form
To petition the Court in your county of conviction, you should use the Judicial Council Form CR-180, which is available here: http://www.courts.ca.gov/documents/cr180.pdf. You will note on that form that it distinguishes between whether you were granted probation or your probation was denied. Your rapsheet will show whether probation was initially granted and whether you completed it or whether it was eventually terminated unsuccessfully and/or you were “sentenced out.” Some older misdemeanor convictions may not have had any probation attached to them, and you should check the box under Number 3. If you were granted probation and did not violate it, you check box Number 2. Under the law, if you successfully completed all terms of your probation without a glitch, you are entitled to expungement. However, as a practical matter, you should submit letters of support and evidence that you are leading a law abiding life such as including pay stubs or letterhead from your work or volunteering that you do. You can call these “Exhibits in Support of Petition” and attach them to your petition simply using a stapler. You need to submit one signed original and three copies to the Court. The Court keeps the original, you keep a copy, you serve a copy on the District Attorney’s Office and you serve a copy on the Probation Department. You should attach a proof of service to your petition, again using the California Judicial Council Form available here: http://www.courts.ca.gov/documents/cr401.pdf. (Just cross out the part referencing that particular Health and Safety Code provision.) Last, you need to also file or bring to your hearing a proposed order for the Court (i.e. Judge) to sign. Again, the Judicial Council has a proposed order form here: http://www.courts.ca.gov/documents/cr181.pdf. Also, every county has a filing fee for each conviction that you seek to expunge. Some counties require the filing fee upfront whereas others require it on the back-end, after the hearing or adjudication (some counties don’t have a hearing if the District Attorney’s Office does not object). For misdemeanors, the typical fee is $120 and for felonies the typical fee is $240 per conviction. In the interests of justice, the Court will sometimes waive the fee, which is another reason to always file some letters of support, or other mitigation (i.e. things that make you look good) with your petition.
- Attend the Hearing
When you file your petition, the Clerk of the Court will give you a hearing date, usually about one month from the day you filed your petition. You must be present for that hearing. You also should follow up by phone or check online, if there is an online system in your county, to see if the District Attorney filed a non-objection or an objection. If they filed a non-objection, the Court will typically grant the petition. If they filed an objection, you know you’re in for more of a fight. Technically, the District Attorney is supposed to serve you, like you did them for your petition, for any filing, but oftentimes they wait until a few days before the hearing and send it in the mail, so you walk in blind to the hearing. At the hearing, speak loudly and clearly. Don’t say “uh-hum” or “uh-huh” because the Judge will tell you the Court Reporter or the Electronic Recorder can’t distinguish those sounds, so use “yes” and “no.” Even better, “yes, your Honor,” or “no, your Honor,” will impress the Judge and might make her or him give you the benefit of the doubt. Dress the part. Wear business casual attire. One of my professors once told me that the most important thing to do before Court is to get a haircut and a shoeshine. Appearance matters. Good luck!