Legal Issues - Background Expunged
Contact the referral service for your local bar association for an attorney who could specialize in this field. First many departments state on the applications not to list offenses that have been expunged per penal code 1203.4 of the California legal code. Although this does not actually seal the file and is always there, the charge is erased, gone for all intents and purposes. If a potential employer runs a criminal check with DOJ, nothing will appear. This law is only in place for people with one time offenses. The key is to never lie, but if a person's charge is expunged, he is released of all penalties and disabilities pertaining to a crime and is not required to ever list the offense again.
Expunged Record of Conviction Defined: Here is the Penal Code Section that is being addressed. If you have questions, visit the State Law Page at: www.leginfo.ca.gov/
Some applications ask only if you have a conviction (Misd or Felony) - with expungement you have no conviction, however, it still may show up on the fingerprint check and you will have to defend it, in most cases it is sufficient cause to end the process - & you're out! If the application states do not list expunged records, then do not list the conviction. If your record is a misdemeanor - the DOJ will purge your record after 10 years. If your record is a felony arrest with a misdemeanor conviction through plea or plea bargain, your record will indicate the felony arrest forever regardless of the expungement. If your arrest is a felony, with a felony conviction, the record will show and is not purged regardless of the court's actions. Use good sense, and spend a few bucks with an attorney or expert! Your answer is the key to getting a job. Penal Code 1203.4a. (a) Every defendant convicted of a misdemeanor and not granted probation shall, at any time after the lapse of one year from the date of pronouncement of judgment, if he or she has fully complied with and performed the sentence of the court, is not then serving a sentence for any offense and is not under charge of commission of any crime and has, since the pronouncement of judgment, lived an honest and upright life and has conformed to and obeyed the laws of the land, be permitted by the court to withdraw his or her plea of guilty or 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 accusatory pleading against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense of which he has been convicted, except as provided in Section 12021.1 of this code or Section 13555 of the Vehicle Code. If a potential employer runs a criminal check with the DOJ, the conviction will appear, annotated with the phrase (similar) "Case dismissed pursuant to 1203.4." California state law is explicit on this. California Labor Code Section 432.7 explains that an employer must not discriminate against an applicant for a prior arrest that did not result in a conviction. Under Penal Code Section 1203.4, the defendant's plea or verdict of guilty is set aside by the judge and the conviction is dismissed. This means the defendant is no longer guilty and there is no conviction, but the record continues to exist. The DOJ receives the order of dismissal and makes an annotation at the end of the defendant's record. So when you look at a defendant's record, all of the arrest and conviction information will still exist, plus the court's order of dismissal. The records should reflect something similar to "Conviction set aside and case dismissed pursuant to 1203.4." There are times when an applicant must decide whether to disclose his conviction regardless of law. This is a personal choice and can be done either on the application or in the interview. The applicant might answer "Yes" to a conviction-on an application-but then disclose the conviction was dismissed, usually in an area designated for additional information..
A consumer reporting agency-background reporting company-will, in all likelihood, have access to a defendant's application, but they are under Federal law not to disclose the conviction due to the 1203.4 dismissal. But, lo and behold, they probably will. In this situation a defendant will have to seek legal remedy with the Federal Trade Commission, if desired. I have experience dealing with the Labor Board and the Unemployment Board, but I cannot say for certain (at this time) the steps to take when dealing with the F.T.C. If an applicant, applying for a job, is terminated due to the dismissed (1203.4 PC) conviction, he has remedy with the State Labor Board. If the applicant is denied unemployment compensation due to being terminated for his dismissed (1203.4 PC) conviction, he has remedy with the State Unemployment Appeals Board. There is precedent with the Unemployment Board.
Note: There is a distinction between the definitions of expungement and dismissals, yet many do not understand and refer to dismissals (1203.4 PC) as expungments. The defendant shall be informed of the provisions of this section, either orally or in writing, at the time he or she is sentenced. The defendant may make such application and change of plea in person or by attorney, or by the probation officer authorized in writing; provided, that in any subsequent prosecution of such defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if relief had not been granted pursuant to this section. This subdivision applies to convictions which occurred before as well as those occurring after, the effective date of this section. When records are expunged, they are not sealed. The only way one can have his/her conviction(s) sealed is if the conviction(s) happened when that person was under the age of 18 when the conviction occurred. Even when the conviction is expunged, you still have to disclose the conviction; however, you need not disclose it if the application/form/packet specifically states expunged convictions need not be listed. Trust me, I have done a lot of research on this issue. Courtesy of FirePrep: Don McNea Fire School, 13917 Cleveland, OH 44136 Web: www.fireprep.com
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