options for getting convictions dismissed
Did you know there are several ways to have convictions completely dismissed from your record? What are dismissal options and the methods to accomplish this?
There are several ways to have convictions dismissed from your record including reducing your felony to a misdemeanor, expungement, diversion, and marijuana charge erasure. These methods are explained below.
1. Reducing a felony to a misdemeanor
A conviction can be reduced from a felony to a misdemeanor. (Penal Code § 17(b).) Only violations known as “wobblers” (offenses that can be originally charged as either a felony or misdemeanor) may be reduced to misdemeanors. An offense is a “wobbler” if the punishment statute allows a sentence of state prison or county jail.
If the court grants reduction under § 17(b), the offense is considered a “misdemeanor for all purposes” which means rights to own a gun are reinstated and immigration consequences associated with the felony are removed. Note however, that a felony reduced to a misdemeanor under § 17(b) can still be considered as a “strike” offense for punishment purposes. (See People v. Franklin (1997) 57 Cal.App.4th 68.)
2. Expungement
Expungement is a procedure used to have convictions dismissed from your record. You must satisfy the following elements to be eligible for an expungement: (1) not be on probation or parole when the court hears your motion to expunge your conviction; (2) not be serving a sentence; and (3) not be charged with committing any offense. (Penal Code § 1203.4.) Since “offense” includes all crimes (felony, misdemeanor and infraction) outstanding warrants and traffic infractions would disqualify you from expungement. The court is required to grant expungement motions as a matter of law if probation is successfully completed. In all other cases, the court has discretion to grant or deny the petition. If the court grants expungement, the accusation against you will be dismissed and you will be released from all penalties and disabilities resulting from the offenses. The effects of expungement on obtaining employment or a license are discussed later.
Expungement is prohibited in the following cases: infractions, convictions resulting in state prison sentences, misdemeanor convictions under Vehicle Code § 42001, the following Penal Code Sections: 286(c), 288, 288a(c), 288.5, 289(j), felony 261.5(b), and in all cases in which probation was not granted. (Penal Code § 1203.4(b); People v. Borja (1978) 110 Cal.App.3d 378.)
3. Diversion
Diversion is another conviction dismissal mechanism. This is routinely offered for minor, non-violent offenses such as petty theft. In diversion cases, the charge against you will be dismissed if you successfully complete all of the diversion program requirements.
If you are charged with being in possession of drugs or under the influence of controlled substances, drug diversion programs (often referred to as deferred entry of judgment or (DEJ)) allow you to have the charges against you dismissed if you successfully complete the program and stay out of trouble for 18 months. (Penal Code § 1000.) A huge benefit of the DEJ program is that employers and state licensing agencies cannot use the arrest against you if you complete the program successfully, unless you are applying for a peace officer position. (Penal Code § 1000.4(a).)
Proposition 36 is another drug diversion program that allows drug charges to be dismissed upon successful completion of the program. (Penal Code § 1210.1.) If available however, DEJ is the preferred program because the restrictions of the use of the arrest information by employers and state licensing agencies does not apply to Proposition 36 diversion.
4. Marijuana possession erasure
All possession of marijuana for personal use convictions, after January 1, 1976, are automatically erased from your record after two years. (Health & Safety Code §§ 11361.5, 11361.7.) Therefore, you need not seek dismissal of these simple possession cases unless your marijuana charge still appears on your record. Note, convictions for cultivation, sale or transportation are not eligible for automatic dismissal.
Check back for more blog posts on this subject and others.
If you are in need of help through any dismissal process, please contact me for a free consultation.
~ Dan Koukol, Criminal Defense Attorney
Tags: attorney, criminal, defense, expungement, federal, misdemeanor