Category: Post-Conviction

Post-Conviction | NoCuffs

Sealing and Destruction of Records (California Penal Code 851.8)

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.

Sealing Juvenile Records

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.

Expungement of Criminal Record

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.

Certificates of Rehabilitation and Pardon

Many people convicted of felonies in California fear that their criminal records will follow them all of their lives, creating hurdles to employment, housing, education, and other opportunities. However, there are several post-conviction relief options that may be available, including a certificate of rehabilitation and pardon. The experienced post-conviction relief lawyers of The Kavinoky Law Firm will evaluate each case to determine whether a California certificate of rehabilitation and pardon may be obtainable.

Certificates of rehabilitation are first sought from the trial court and are the first step in the pardon process. If a certificate is issued, the trial court will recommend that the governor grant a pardon. The governor has the discretion to grant or deny a pardon, unless the individual has multiple felony convictions. In that case, the pardon will require additional approval from the state Supreme Court.

Certificates of rehabilitation are what they sound like— a formal finding that a person is rehabilitated and should be relieved of the burdens of a prior felony conviction. The process of obtaining a certificate of rehabilitation and/or pardon is lengthy and must be done with the assistance of an experienced criminal defense attorney.

Prior convictions can have impact many aspects of life. Most post-conviction relief is limited and provides only partial relief to cleansing a criminal record. Expungement for example, has several key limitations and will neither restore gun possession rights nor alleviate registration as a sex offender under Penal Code 290. Only a pardon can address these consequences.

A governor’s pardon is granted only to individuals who have demonstrated a high standard of constructive behavior following conviction for a felony, or in some cases, for certain specified misdemeanor sex offenses. Obtaining a pardon is a distinct achievement based upon proof of a useful, productive, and law-abiding life following a conviction. California Penal Code section 4852.05 states, “During the period of rehabilitation, the person shall live an honest and upright life, shall conduct himself or herself with sobriety and industry, shall exhibit a good moral character, and shall conform to and obey the laws of the land.”

In general, pardon applications will not be considered unless an applicant has been discharged from probation or parole for at least 10 years and has not engaged in further criminal activity. While the receipt of a certificate of rehabilitation is persuasive in evaluating a pardon application, it is but one of many factors in the governor’s decision to grant the pardon. The 10-year rule may be waived in truly exceptional circumstances, if the applicant can demonstrate an earlier, specific need for the pardon.

A certificate of rehabilitation and pardon can truly transform the life of an individual convicted of a felony in California. To learn more about California certificates of rehabilitation and pardons and other forms of post-conviction relief, contact The Kavinoky Law Firm today for a free consultation.

Alternative Sentencing

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:

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.

Alternative Sentencing with a Domestic Battery Conviction

Alternative Sentencing with a Domestic Battery Conviction

Domestic battery, more commonly called “spousal abuse” or “spousal battery,” is a California domestic violence crime that applies to intimate partners. Intimate partners may be heterosexual or homosexual and married, divorced, living together, have children in common, dating or were formerly dating.

Battery is what’s known as a “wobbler,” meaning that the offense can be charged as either a misdemeanor or a felony depending on the severity of the individual case. If a person willfully and unlawfully uses force or violence upon an intimate partner, he or she can be charged with battery, which is typically charged as a misdemeanor and carries a maximum penalty of a one year jail sentence and a $2000 fine. This charge can be brought against a defendant even if he or she used the slightest force. Any unwanted physical touching could lead to a battery charge. However, if serious bodily injury results (for example, broken bones, loss of consciousness or a concussion), the battery will likely be charged as a felony, which carries a maximum sentence of four years in state prison.

Even though an individual faces up to four years in prison for committing this crime, an experienced criminal defense lawyer may arrange it so that his or her client never spends a day in a cell. The outstanding attorneys at The Kavinoky Law Firm specialize in California domestic abuse law. They know the intricacies involved in sentencing and, as a result, can effectively fight to keep their clients out of jail or prison.

Alternative sentencing is just that – an alternative to incarceration. When properly utilized, alternative sentencing can be even more effective than jail or prison, as it usually has some rehabilitative element to it, as opposed to straight punishment. When an individual is rehabilitated, it not only benefits that particular person, but his or her family, the courts and society as a whole.

There are several factors that a judge may consider when hearing a defense attorney’s recommendation for alternative sentencing. An attorney will usually address any mitigating or extenuating circumstances that were involved in the defendant’s case, whether alcohol or drugs played a role in the charged incident and whether the accused suffers from mental illness. Because every person and every case is different, an experienced lawyer will know what facts and circumstances are relevant to his or her client’s case and which are likely to persuade a judge that alternative sentencing is appropriate.

In a battery case, there are several options that may be imposed as an alternative to jail or prison time. The attorneys at The Kavinoky Law Firm will aggressively advocate on behalf of their clients to ensure that alternative sentencing is imposed when appropriate. These options include probation, either formal or informal, house arrest, electronic monitoring, community service or labor, individual or group therapy for issues dealing with drugs, alcohol and/or other addictive behaviors, and making restitution to the victim when possible. Although this list is not exhaustive, it includes the most popular alternatives to serving time.

When arrested on a domestic battery charge, the defendant faces life-changing consequences. His or her family, reputation, career and freedom are all in jeopardy, especially if sentenced to a significant jail or prison term. Unfortunately, many attorneys don’t know that alternative sentencing is available. Speaking with a qualified criminal defense lawyer is the safest way to ensure that the possibility of losing it all doesn’t become a reality. The attorneys at The Kavinoky Law Firm receive ongoing education and training in intimate partner abuse law and its penalties, keeping them ahead of the competition. Their reputation for treating their clients with compassion and respect is only surpassed by their success rate. One’s freedom is too important to trust to an inexperienced attorney. Click here for a free consultation and for the best representation.

Benefits of Cleaning Up Criminal Records Through Post-conviction Relief

Benefits of Cleaning Up Criminal Records Through Post-conviction Relief

If you’ve paid your debt to society after a California criminal conviction with fines, jail time, or the successful completion of probation, clearing your criminal record with post-conviction relief can open doors to employment, professional licenses, education, and perhaps most importantly, achieving peace of mind. The knowledgeable California defense lawyers of The Kavinoky Law Firm will explore every option to clean up your criminal record and help you to make a fresh start.

California passed new legislation that impacts expungement of criminal cases. As of Jan. 1, 2008, you must have a formal hearing to let a judge decide whether expunging your conviction serves the best interests of society and justice. In the past, you could have certain convictions expunged simply by meeting certain requirements, but that’s no longer the case.

However, expunging your California criminal conviction is still entirely possible. Depending on the case and the circumstances, post-conviction relief can result in having your case dismissed even if you were convicted by a jury or pled guilty. If the case is dismissed, then it is treated as though it never occurred. However, post-conviction relief options are not an eraser – the law provides specific circumstances in which the offense must be disclosed, even after the judge grants relief.

Still, disclosing a prior offense that has since been expunged or otherwise forgiven by a judge is extremely beneficial from both a practical and psychological point of view. Practically speaking, if a judge ruled in your favor, it’s going to hold a lot of weight. Psychologically, you have the confidence that your prior offense was dismissed, so you won’t be embarrassed to discuss your past. Effectively, in situations requiring disclosure, post-conviction relief distances one from the negative implications of the prior offense.

If you or someone you know has a California criminal conviction and is applying for a job, educational institution or professional license, it’s important to talk with an experienced criminal defense attorney. Even if the circumstances require disclosure, a skilled criminal defense attorney may be able to help you turn a potentially negative experience into a positive learning experience.

In some ways, criminal records are like a credit report – certain marks such as some drug offenses will automatically be purged after a period of time. Others require approval by a judge.

The benefits of cleaning up your criminal record can alleviate many negative consequences associated with the offense. Post-conviction relief can limit the impact prior convictions have on current and future employment. For example, there are specific instances where an individual may lawfully state that they were not convicted of a prior offense if the offense was later expunged.

Similarly, post-conviction relief can also provide important access to California professional licenses and/or certifications. Professional licensure programs are regulated by the state and require disclosure of any prior conviction. But many state professional licensing boards will grant professional licensures for expunged offenses. The same is true of certain educational or advanced career training programs. Some programs will refuse admittance until prior offenses are dismissed or vacated.

If you or someone you care about is interested in cleaning up a criminal history, please contact an experienced California criminal defense attorney from The Kavinoky Law Firm. We are skilled in post-conviction relief and can provide detailed information on this process.