The Difference between a Petition for Dismissal / Expungement and a Petition to Seal an Arrest
Expungements/Petitions for Dismissal
If you were convicted of a crime - felony or misdemeanor, then a Petition for Dismissal/Expungement is what you need to get the conviction permanently off of your record database. Filing for a Petition for Dismissal/Expungement of your criminal conviction(s) in California Encompasses filing a petition on the Court where you suffered your conviction via California Penal Code section 1203.4. What it does is effectively re-opens the case, sets aside the no contest plea, guilty plea, or factual finding of guilt by a Trial jury, and sets aside the conviction and entirely dismisses the case. The process takes anywhere from 2 -3 months depending on what court the case was filed in. Some courts are much faster than others. Van Nuys Court is one such court that processes these Petitions sometimes within two weeks. Other Courts have an average processing time of around 7 weeks from date of filing to date of the Petition for Dismissal/Expungement being granted. Some courts like Long Beach take what seems like a lifetime.
Once the Expungement is granted by the Court, the defendant will no longer be considered convicted of the crime, and the criminal conviction will be replaced with "dismissed pursuant to California Penal Code section 1203.4." Once the charge(s) is/are expunged the petitioner can truthfully by law declare on any State application that one has not suffered any criminal convictions. The expunged charge will not appear on the majority of background checks. Keep in mind that one’s Second Amendment rights are NOT necessarily restored by the expungement of a felony charge. In addition, cases considered “priorable” like petty thefts and DUI’s may easily be Petitioned for Dismissal but the conviction/charges may still remain on the petitioners record for priorability and/or Department of Motor Vehicle purposes for 10 years.
These Petitions are State created remedies. The Federal Government does NOT recognize the granting of a Petition for Dismissal which is why one’s gun rights are not restored after expungement of a felony conviction. For immigration purposes, the granting of an expungement is of limited value. Please speak to an Immigration attorney before proceeding with the filing of a Petition for Dismissal/Expungement. Some but not all felony or misdemeanor convictions are considered crimes of moral turpitude. A person seeking a conviction to be expunged for purposes of obtaining an immigrant Visa may not pursuant to 8 USC 1182(a)(2)(A)(i)(1). In addition, some sentences involve State Prison being suspended and the defendant being placed on probation. If this is the case, 8 USC 1182(a)(2)(B) may prevent a person seeking an Immigrant Visa based on the aggregate sentence to confinement being 5 years or more.
Keep in mind that there are many felony convictions that are able to be reduced to misdemeanors prior to getting expunged. For example, a domestic violence charged or a criminal threats charged as and pled to as a felony may easily be reduced to a misdemeanor as the original charge could have been filed as a misdemeanor or a felony. However, in these types of felony convictions, the way in which the plea was taken matters as to whether the charge will be reduced to a misdemeanor just prior to being expunged/dismissed. For example, part of the deal was to have “execution of State Prison suspended” for any term of years, then the charge cannot be reduced to a misdemeanor. The charge is still expungeable but the conviction will never be reduced to a misdemeanor.
Example #1 - Expunging a Felony Conviction
Alex was convicted of a violation of California Penal Code section 211 - Robbery. He was placed on 3 years of Felony Formal Probation and successfully completed his probation without any Probation Violations at all. At the 3 year mark when his probation expired, Alex filed a Petition for Dismissal/Expungement pursuant to California Penal Code section 1203.4 to have his conviction Dismissed/Expunged. The Judge, upon hearing argument as to why the expungement should be granted, agreed with Los Angeles Expungement Attorney and dismissed the case. Alex’s RAP sheet will still show the arrest for life, but under the conviction section of his criminal record, it will state that the charge was “Dismissed pursuant to Penal Code section 1203.4.”
Example #2 - Expunging a Felony (Wobbler) Conviction
Lisa was convicted of a violation of California Penal Code section 594 - Vandalism. She was placed on 3 years of Felony Formal Probation and successfully completed her probation without any Probation Violations at all. At the 3 year mark when her probation expired, Lisa filed a Petition for Dismissal/Expungement pursuant to California Penal Code section 1203.4 to have her conviction Dismissed/Expunged. The Judge, upon hearing argument as to why the expungement should be granted, agreed with Los Angeles Expungement Attorney and dismissed the case BUT before he did so, he reduced the Vandalism charge to a misdemeanor and THEN dismissed the conviction. Lisa’s RAP sheet will still show the arrest for life, but under the conviction section of her criminal record, it will state that the charge was “Dismissed pursuant to Penal Code section 1203.4.”
Sealing of an Arrest - There are Two Ways to Seal an Arrest
If you were arrested but NOT convicted of any crime then your remedy is to Seal the Arrest as there is no conviction to Expunge/Dismiss. This scenario arises in several ways:
- An arrest was effectuated but the prosecutor rejected a filing of the charges for whatever reason. (Remember that not all arrests lead to the filing of criminal charges);
- The case was one of mistaken identity. (Someone who looked like you were the actual perpetrator);
- The Statute of Limitations has expired which prevents the Prosecutor from filing a case against you.
The First Way - California Penal Code section 851.8
The first way to seal an arrest record is via California Penal Code section 851.8, which is not the newer law, and one which requires that the defense prove that the defendant was factually innocent. Factual innocence is difficult to prove, and it compels that the Judge, Commissioner or Referee agree that in hindsight, given all of the evidence, that the defendant should not have been subject to arrest in the first place. In addition, California Penal Code section 851.8 mandates a 24 month time limit for filing the request from the date of the arrest. If the arrest is older than 24 months a time waiver may be requested but this is an uphill battle with the Court. The granting of a request under California Penal Code section 851.8 permanently destroys and forever seals the arrest, so that it is completely deleted from all public databases. Arrest record sealing under California Penal Code section 851.8 is costly as it is labor intensive. If you have any questions about this information please call Los Angeles Expungement Attorney at 424-286-1516. We have been clearing Arrests and Convictions for 17 years.
The Second Way - California Penal Code section 851.91
The second procedure for sealing an arrest record encompasses a law which has been in effect since January 1, 2018 which is a more simple method. Pursuant to California Penal Code section 851.91 all you need to show is that you qualify for relief to have your arrest sealed and destroyed.
- The arrest must have occurred in the State of California;
- No conviction must have come from the arrest;
- Any and all crimes are barred by the Statute of Limitations such that the prosecuting attorney is legally barred from instituting any criminal action based upon the arrest; (12 months for a misdemeanor and 36 months for a felony arrest):
- charges were filed but the case was dismissed by the prosecutor;
- the person arrested was acquitted of all charges;
- a conviction did occur which was reversed on Appeal.
Exceptions to the General Requirements:
- The Statute of Limitations has not yet run;
- The charge is a violation of California Penal Code section 187 - Murder unless that person has been found factually innocent or acquitted of the charges;
- The defendant evaded law enforcement which prevented an arrest;
- The defendant evaded law enforcement which prevented an arrest by identity fraud and was later prosecuted for that act of identity fraud.
Example #3 - Sealing an Arrest (Felony or Misdemeanor)
Mark was arrested for a violation of California Penal Code section 273.5(a) - Domestic Violence. He was never charged with a crime as his wife insisted that she was the first aggressor and that she hit him before he ever placed a finger on her. As the Statute of Limitations was about to run, Mark filed for an Order to Seal the Arrest pursuant to California Penal Code section 851.91 to have his conviction arrest sealed and destroyed. The Judge, upon hearing argument as to why the arrest should be sealed, agreed with Los Angeles Expungement Attorney and ordered the arrest for Domestic Violence to be sealed and destroyed. Alex’s RAP sheet will still show arrest sealed” and next to that it will state “arrest relief granted.”
Real Life Example #4 - Sealing an Arrest for Lewd Conduct - Van Nuys Case 3PN05821
Jose was arrested for a violation of California Penal Code section 314 - Indecent Exposure. He was charged with the crime after a woman called the police claiming he was masturbating in his truck and looking at her as she walked down a side street in Van Nuys. Jose wanted to fight his case at trial from Day One as he told me over and over that he was innocent. The jury in Van Nuys returned a Not Guilty verdict in about 3 hours and Jose was finally free from these false charges. I reminded Jose to file for an Order to Seal the Arrest pursuant to California Penal Code section 851.8 or 851.91 to have his conviction arrest sealed and destroyed as he was acquitted in this case.
Once the Judge orders that the arrest record be sealed by the Court under California Penal Code section 851.91 the arrest must be updated and sealed as follows:
- The section on one’s criminal RAP sheet where an arrest and its details appear shall state “arrest sealed.” and next to that it shall state “arrest relief granted.”
If one’s arrest record is ordered sealed by a Judge, it is then unlawful and illegal for the Courts, or any police agency, to publish the arrest. So, one’s arrest record information will be hidden from the public eye. Again, it will still be seen on your Department of Justice records but the record will state that arrest relief was granted.
The sealing of one’s arrest like the granting of a Petition for Dismissal/Expungement, does not relieve one from disclosing the arrest or conviction in cases of an expungement, in response to any question asking about one’s arrests or convictions in an application for:
- Public office;
- Employment as a Police Officer;
- Licensing by any local or State agency;
- Contracting with the Commission of the California State Lottery;
Therefore, one can lawfully state one has never been arrested in any other scenario not listed in the four (4) categories above. Meaning you can answer "NO" on nearly all applications for employment, etc... except those included above. These are important procedures that all who have suffered an arrest or conviction should know. These laws were intended for those people who wish to start over by clearing their past transgressions. The Expungement/Petition for Dismissal procedure only applies to people who were placed on Informal or Formal Probation. If one was sentenced to State Prison then the Expungement process is unavailable.
Please call the Los Angeles Expungement Attorney at 424-286-1516 for any and all free information regarding your right to have your arrest record sealed and destroyed under California Penal Code section 851.8 or PC 851.91. Los Angeles Expungement Attorney has been clearing records for the past 17 years and has a very successful track record of helping citizens get back on their feet with a clean slate.