Ray Hrdlicka – Host – Attorneys.Media
“Well, let’s talk about criminal history. Somebody’s got a prior. Well, how… we’ve obviously just talked about probation, getting arrested again. But let’s change the question a little bit. Somebody has a criminal history, and they’re prevented from getting back into society. I mean, do they have to answer, yes, on an employment application? I’ve been convicted of a misdemeanor; I’ve been convicted of a felony. Isn’t that a charge in and of itself? And, you know, so that’s been a question that’s been bantered about for, gosh, decades. How do you resolve this issue of… somebody’s done the time, great! But now, how do we get them back into society?”
Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA
“Yeah, well, it is a good question. So historically, it’s been through a number of motions that you can file. Right now the California is going into a really good state of clearing those up. Even felonies. You’re… a lot of people able to clear those up, via a motion by a criminal defense attorney. These are all fairly new, and I haven’t even pursued some of them yet.”
Ray Hrdlicka – Host – Attorneys.Media
“Well, when you say, ‘clear them up’, what do you mean?”
Kirk Tarman– Criminal Defense Attorney – San Bernardino County, CA
“And that’s a good question, basically, there’s…there’s a couple, I’m going to put them at three levels. There is what we call the expungement, and it’s not a really good word, it’s Penal Code 1203.4 which is basically, when you’ve done your probation, or you’re at or near probation and you do what’s called a 1203.4, which is a sealing of the conviction. And that sealing of the conviction, it looks like, on your criminal history, it looks like you withdrew your guilty plea, and you entered a plea of not guilty, and the case is dismissed.
That’s what it looks like with a Penal Code 1203.4, and that’s where you’ve basically been arrested and convicted of something, all right? In this case, we’ll call it a misdemeanor. There’s another option with a felony, which is…if it’s a wobbler, meaning it can be charged also as a misdemeanor. You would file what’s called a 17b motion, reduce it to a misdemeanor, which is really more powerful than even the sealing of it. But you reduce it to a misdemeanor, and then you expunge it and I’m just using the expungement as the common term for the 1203.4, 1203.3 aspect, which basically cleans up your criminal history.
And for most intents, and context, you can say you’ve never been convicted of a criminal charge. There are some exceptions to that. Applying for peace officer, office…public office. Some reason, the lottery…working in the lottery, these are some of the exceptions where you have to divulge the conviction. So, those are some of the ones where you’ve actually been convicted. And you go in that route, reducing…and then getting them sealed and expunged.
There’s a couple of other things where you’re just arrested, and you’re never convicted. And it’s interesting, because you can get arrested now. And with all these statutes that we were talking about earlier on, you get diversion, you get the case dismissed. Now these, you can get what are called sealings… sealing your arrest record and destruction of your arrest record. And these are very useful. You can actually say…it basically shows, you can’t even see the arrest. Now, Department of Justice can still see it. Some law enforcement could still see it, but anybody else who looks at these things, you can’t even see what the arrest was and what it was for. So, it’s been sealed and destroyed. And that’s after a conviction. I’m sorry, after you’ve been arrested, and then after this case was dismissed for whatever reason. And sometimes, even if you get a not guilty.
And then there’s a kind of a third option, which is what I call sealing and complete destruction of finding of factual innocence, which is, if you can show that there was no reasonable suspicion that you actually committed the crime in question. And you can show that with evidence, a video, we’re just talking about public intoxication, which is, if you look at Penal Code 647f, you’ve got to be so drunk you can’t take care of yourself, unable to care for yourself or others. And so, you can show that’s complete crap, and there’s no basis for that. The cop just arrested you because you had a bad attitude. And you can show that there is no reasonable suspicion. You get to get a full, what we call a binding of factual innocence, it’s a destruction from top to bottom, literally physical destruction of it. And nobody can see it after that, at all, Department of Justice on down. This is a number…
Now there’s a certificate of rehabilitations and there’s pardons. And these are things, if you go into state prison, but those are a little bit more complicated, for a little bit more egregious charges that probably most people don’t have to deal with.”
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