Criminal Law 101 – Post-conviction Relief

Many individuals convicted of criminal offenses in California worry that their records will follow them forever, but post-conviction relief is an option in some cases to clear a criminal conviction and put the incident into the past. The knowledgeable defense lawyers of The Kavinoky Law Firm are well-versed in California post-conviction relief options, and will fight to help an individual clear up a criminal record. Post-conviction relief options vary case by case, but in general, will depend on three key factors:

• Whether the case was charged as a misdemeanor or a felony; and
• Whether the offense was chargeable with time in jail or prison; and
• Whether probation was included in the sentence and has been completed

Because there are many legal terms that people may not be familiar with, this section will provide definitions and highlight several key components common to most post-conviction options. The most common post-conviction relief options include: sealing and destruction of records, expungement, felony reduction, and Certificates of Rehabilitation and/or pardon.

Misdemeanors vs. Felonies: When evaluating a case for the first time, a criminal defense attorney will first want to know whether the prior offense was charged as a misdemeanor or a felony. Ultimately the difference between a misdemeanor and felony comes down to the severity of the offense and the punishment that can be imposed.

Misdemeanors typically involve fines and are punishable by not more than one year in county jail. They are considered less severe than felonies. Felonies, by definition, are punishable with one year or more in state prison. While any time behind bars is difficult, technically county jail is considered less severe than prison and is reserved for less serious offenses.

Probation Requirement: In addition to jail or prison, most crimes include a period of time when a person is restricted from doing certain things. In general, probation is commonly included as a condition of conviction in nearly all misdemeanor crimes and some felonies. Probation can be either formal (supervised by a probation officer) or informal (it is up to the individual to comply with the terms without reporting to a probation officer). In many cases even something seemingly small, like getting a traffic ticket while on probation can be enough to cause the original judge to impose additional penalties, such as additional jail time. Post-conviction relief is not generally available until the probationary period is over.

Typically felonies attach a prison term and parole opportunity. There are different post-conviction options for parolees including Certificates of Rehabilitation and/or pardons. However, certain felony offenses are considered less serious, so the judge may grant county jail time and probation. In these cases, misdemeanor post-conviction relief would be available.

Early Termination of Probation: Most post-conviction relief is unavailable to individuals whom have not yet completed their entire probationary term, with certain exceptions. California Penal Code Section 1203.3 allows a judge to modify or revoke probation or terminate probation on a case-by-case basis. This is an important aspect to any discussion on post-conviction relief since expungement and other relief is generally unavailable if you are still on probation. Under PC 1203.3 a probationer can petition the judge to terminate probation early. Early termination of probation requires a skilled defense attorney to go before the judge and make an effective argument in favor of early termination.

Wobblers: Most offenses are clearly defined by the penal code as either misdemeanors or felonies. However, there are always exceptions. Certain crimes, referred to as “wobblers” can be charged by the prosecutor as either misdemeanors or felonies. In some cases people may not remember the details of their prior convictions and laws may have changed over the years. As a general rule, county jail and probation are clear indicators that a crime was charged as a misdemeanor.

Common examples of wobblers include certain DUI / DWI offenses, drug possession, assault and domestic violence offenses. If a conviction for a wobbler offense includes county jail time (regardless of whether any actual time is served) and probation, then the conviction is eligible for misdemeanor relief including sealing of records, reduction of felony to a misdemeanor and/or expungement. Straight felony convictions, on the other hand, would require an application to the governor via a Certificate of Rehabilitation or pardon.

As stated, felonies by definition are more serious than misdemeanors. In certain cases wobblers may rise to the level of a felony if certain aggravating circumstances are present, for example, when someone is actually injured. Straight felonies – those that are not wobblers – attach a specific prison term, and in most cases, there is a start and end date with a possibility of parole. Individuals convicted of felonies which were paroled, have stricter standards, as they relate to the availability of post-conviction options. Generally, in order to relieve the civil consequences of a prior felony conviction requires application for pardon or Certificate of Rehabilitation, which are more lengthy and involved than misdemeanor relief options.

A California criminal conviction doesn’t have to follow an individual through life, hampering opportunities for employment, education, housing, and other necessities. The experienced, caring defense attorneys of The Kavinoky Law Firm are knowledgeable about every aspect of post-conviction relief, and will explore every option available to clean up an individual’s criminal record. Contact a skilled attorney today for a free consultation.

Expungement

Every arrest and conviction is recorded in an individual’s criminal record. At one time, only police and governmental agencies could access criminal records, but that has changed. Technology has blurred the gap between what is public and what is private. Similarly, background checks are becoming more and more standard, and with growing on-line public databases, accessing someone else’s criminal record couldn’t be easier.

Because of this, post-conviction relief in the form of expungement is both important and necessary. Expungement works like cleaning up a credit report. A successful expungement means that the conviction is removed from the record. The knowledgeable expungement lawyers of The Kavinoky Law Firm will evaluate any California criminal conviction to determine whether post-conviction relief may be an option.

Essentially, the judge dismisses the case after the fact. This applies even in cases where a plea of guilty was entered. In these cases, the plea is withdrawn and the case is dismissed. On your criminal record, expunged offenses are listed as “dismissed.”

While expungement offers the most relief, it is not an eraser, and relief from disclosure is limited. Also, expungement is not available in all cases. While it is possible to expunge some felonies, expungement is generally limited to misdemeanor offenses where the probationary period has ended. However, an experienced criminal defense attorney can assist with getting probation terminated early.

Common situations where expungements are granted include driving under the influence, drug possession, reckless driving, and other misdemeanor offenses. Most employers are prohibited from asking about arrests that did not result in convictions and expunged offenses. However, there are limits on expungement relief, including several situations that require mandatory disclosure of expunged offenses.

Still, the benefits of expungement far outweigh the limitations. While expungement is most commonly considered for purposes of future employment, the psychological benefits should not be overlooked. Knowing that a prior criminal conviction is out there on the record can be unnerving. While hiring a good criminal defense attorney to help resolve matters initially is always encouraged, there’s no reason to suffer needlessly from a prior conviction. Help is available. In some cases where expungement isn’t an option, alternatives such as a Certificate of Rehabilitation or a pardon may be available.

For a preliminary evaluation on whether your offense can be expunged, please contact one of the skilled criminal defense attorneys at The Kavinoky Law Firm. We have offices throughout California and are extremely experienced in expungement and post-conviction relief.

With more sophisticated computers and increasing laws designed to be tough on criminal offenders, privacy is fast becoming a concern for everyone; especially individuals with a criminal record. While they say we learn from our mistakes, no one wants their criminal records public. Depending on the circumstances, it may be possible to get criminal records sealed. Once records are sealed it eliminates public access. In these cases, the offense is deemed not to have occurred and the records are subsequently destroyed. The skilled California defense lawyers of The Kavinoky Law Firm are experienced in all aspects of petitioning to have criminal records sealed and destroyed.

Sealing and destruction of records is a viable option in certain cases and more difficult in others. Under California Penal Code 851.8, an innocent person arrested for or charged with a crime may be able to have the records sealed by obtaining a declaration of “factual innocence.” A finding of factual innocence is generally initiated by submission of a motion and requires a judge’s approval.

In general, someone is deemed to be factually innocent if no reasonable cause exists to believe he or she committed the offense. The procedures for obtaining a Certificate of Factual Innocence vary depending on whether formal charges are filed, but the result is the same: All records relating to the arrest and charges must be sealed for three years and must subsequently be destroyed. The arrest is deemed never to have occurred.

Oftentimes arrests occur and the person is released and no formal charges are filed. In these cases, the arrestee can petition for a finding of factual innocence to have the arrest records sealed.

When charges were filed but the case was dismissed, a petition for a finding of factual innocence can be made, but it’s at the discretion of the court and the district attorney to grant relief. When a trial results in an acquittal, the judge may find the person factually innocent and order relief.

There are specific evidentiary and timing issues which are important to maximize a successful finding of factual of innocence. Anyone looking into relief under California Penal Code 851.8 should consult with a California criminal defense attorney.

Even in cases where sealing and destruction of records is appropriate, certain exceptions apply. Transcripts of court proceedings, published appellate opinions, and any records relevant to pending lawsuits are exempted. Records will not be destroyed if the conviction is on appeal, jail time was never served, fines unpaid, probation is incomplete, or there is a bench warrant.

There are certain cases when relief under Penal Code 851.8 can be very useful, including:

• Juvenile misdemeanor arrest and conviction records
• Marijuana arrests and convictions
• Drug diversion agency records

Juvenile misdemeanor arrest and conviction records: Sealing of records is often awarded in cases involving minors. The arrest records of a minor may be sealed if he or she was released for lack of probable cause; the juvenile court dismissed the case, or the defendant was acquitted.

This section does not apply to arrests for sex, drug, or traffic offenses. If the court decides the finding required for relief, the records will be sealed and the proceedings will be deemed not to have occurred.

It is rare for a person under the age of 18 to be convicted of a misdemeanor in adult court but when it does happen, Pen Code §1203.45 provides for the sealing of such records.

Marijuana arrests and convictions: In general, while sealing and destruction of records requires court approval, cases such as minor misdemeanor marijuana convictions will be automatically sealed. Records of marijuana arrests and convictions are automatically destroyed two years after the arrest or conviction in cases involving simple possession.

Drug diversion agency records: PC 851.8 provides that drug diversion agency records will be sealed and destroyed.

Employers generally cannot ask job applicants about arrests or detentions that did not result in conviction; convictions for which the record has been ordered sealed or expunged; expungements or as noted above, or participation in a diversion program.

Applicants for peace officer and healthcare positions are exempted from this rule, and applicants can be asked about arrests for sex or drug offenses. Professions involving young children have also been found to require disclosure for arrests involving sex or drug offenses.

Sealing and destruction of records is a viable option after many California criminal convictions. The experienced California criminal defense attorneys of The Kavinoky Law Firm can determine whether an arrest or conviction can be sealed and destroyed. Contact them today for a free consultation.

Many individuals convicted of California criminal offenses want to clean up their criminal records and make a fresh start. This is particularly important when it comes to juvenile criminal records. There’s no reason why a mistake made before age 18 should haunt someone throughout their lives and hamper future opportunities for employment, education, military service or other options. The caring attorneys of The Kavinoky Law Firm are skilled in every aspect of sealing and destroying California juvenile criminal records.

Many people believe that juvenile criminal records are automatically sealed, but that’s not the case. Individuals must petition the court to seal the records once they have turned 18. The petition to seal California juvenile criminal records must be made in the county where the conviction occurred. If the court approves the request – which is often the case with juvenile records – the files will immediately be sealed, and the records will be completely destroyed in five years.

Individuals who graduated from the Department of Corrections and Rehabilitation, Division of Juvenile Justice have their convictions dismissed after completing the program, but still must petition to have the records sealed. If not, they will remain visible until the individual’s 38th birthday.

Unfortunately, certain juvenile records cannot be sealed. Typically, only misdemeanor records can be sealed, not felonies. The types of crimes that cannot be removed from the record include sex, drug, and traffic offenses. However, other types of juvenile records can typically be sealed if the proper procedures are followed. While it’s rare for California minors to be convicted of misdemeanors in adult court, those records also can likely be sealed and destroyed.

Whenever possible, it’s essential to petition to have California juvenile records sealed and destroyed so that mistakes made as a minor don’t follow an individual into adult life. A criminal record can be a hurdle to employment, education, housing, and other opportunities, and in today’s information age, it’s easy for anyone to locate criminal records. The experienced lawyers of The Kavinoky Law Firm are skilled in every aspect of petitioning to have juvenile records sealed and destroyed. Contact them today for a free consultation.

Once you’ve paid your debt to society with fines, a jail sentence, or successfully completing probation, it is time to clean up your criminal record. Expungement of your criminal record can help you in many areas of your life, such as getting jobs, achieving an education, obtaining professional licensure and perhaps most importantly, gaining peace of mind.

California has made big changes in its expungement laws as of January 1, 2008. In the past, you could have a criminal conviction such as DUI, hit-and-run, vehicular manslaughter or evading a police officer expunged merely by fulfilling the requirements of your sentence and probation.

However, California’s new law requires that you have a formal court hearing regarding your expungement, and the presiding judge has complete discretion over whether your criminal conviction is removed from your record or remains as written.

Therefore, the hearing may require calling witnesses, filing legal declarations, preparing additional information for the court about you and your particular circumstances, and outlining how your good conduct and reform justify expunging your conviction.

However, despite the new requirements, it is still entirely possible to have your California criminal conviction expunged. Once you do so, you can truthfully assert that you were never convicted of that offense.

There are a few exceptions: You still must 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. However, the benefits of obtaining this relief far outweigh the exceptions.

A juvenile record can be sealed through the juvenile court after a successful hearing. Once this has been done, the offense shall be deemed never to have occurred. There are no exceptions to this type of sealing; it is as if the offense never happened and cannot be revisited.

If you were convicted of a felony, it’s often possible to have the offense reduced to a misdemeanor and then expunged. Other types of record-cleansing include obtaining a Certificate of Rehabilitation and Pardon.

Although California lawmakers have made expungement more difficult, it’s still entirely possible to clear your criminal record and move forward with your life. To learn more about expunging your California criminal conviction, contact an experienced attorney from The Kavinoky Law Firm today for a free consultation.

Alternative Sentencing

Even in the case of a conviction, it is possible for a skilled defense attorney to obtain alternatives to jail for their clients. Alternatives to jail include:

• Electronic Monitoring
• Work Release or Work Furlough
• City Jail
• Alcohol or Drug Rehabilitation
• Sober Living

Each of these options should be fully explored, and a decision reached based upon the individual facts in each case.

Electronic Monitoring: This is also known as “House Arrest” and involves wearing an ankle bracelet that electronically monitors the whereabouts of the wearer. Usually, arrangements can be made for the wearer to go to work or school, so long as they are home by an appointed time.

Work Release: This involves working at a site determined by the Probation Department. The participant works there during the day, and gets to go home at night to sleep.

Work Furlough: This option allows the participant to keep their own job; however, they return to a dormitory-style facility to sleep at night. They are released to go to work during the day.

City Jail: Also known as “private jail” or “weekend jail.” Many local police departments operate a City Jail program. Participants check themselves in to the police station, and usually spend the night there, to be released sometime the following day.

Alcohol or Drug Rehabilitation: Sometimes a DUI or drug-related arrest is merely the unfortunate symptom of an underlying addiction issue. While this is certainly not the case in every instance, some people who are arrested for these types of cases can best address this as an alternative to jail. A skilled defense attorney will know how to obtain this type of relief for their clients, and prevail upon a judge to allow Alcohol or Drug Rehabilitation as an alternative to custody and fines.

Sober Living: For those that are multiple offenders, or have a drug or alcohol problem that has not responded to past attempts at treatment, sober living is sometimes the best alternative. These are houses, both for men and women, where all of the residents are sober. The structure of each house will vary, but residents are usually required to attend a 12-Step meeting daily, participate in house groups and functions, and perform a household chore. In addition to allowing the participant to avoid a lengthy jail stay, sober living environments have helped many improve the quality of their lives.

If you, or someone you care about, have been arrested as the result of a problem with alcohol or drugs, please contact California DUI Lawyers at the Kavinoky Law Firm. We’d be delighted to help.