How long does a conviction show up on a background check?

It really depends on the purpose of the background check:

Private employers – for most jobs, a background check will go back as far as 7 years. If your conviction is older than 7 years, you may not need an expungement to pass an employment related background check.

Professional licenses – a professional license is typically given by the state for various professions such as general contractor, physician, teacher, accountant, lawyer, or real estate agent. If you are applying for a professional license read the rules carefully. Usually you will need to disclose ALL prior convictions, even those which were expunged. It still is important to get an expungement if you are applying for a professional license as it helps to show rehabilitation to the agency reviewing the application.

Schools, hospitals, and similar workplaces – if you are going to work in a hospital or school, you will have a livescan background check. You will need to be cleared for work by the State of California. The person reviewing your background will see everything. It may help to have an expungement in order to pass this background check. Even though the reviewing agency will see all the convictions, in many circumstances a bureaucrat will have a discretionary choice whether to clear you for the job, and the expungement will be viewed favorably.

I have a past conviction and I want to clean up my record. What can I do?

California Penal Code section 1203.4 provides that a convicted defendant who has completed probation may request that the court dismiss the charges. This will allow a person to pass most employment related background checks and it can be an essential step in moving forward a career hobbled by a spotty past.

How do I know if I am eligible for a Penal Code section 1203.4 dismissal (expungement)?

If you have:

1. Paid all fees and fines;

2. Completed probation; and

3. Not had any violations of probation

Then you entitled to have your case dismissed under California Penal Code section 1203.4. Under these circumstances the judge must grant your motion to dismiss the case.

Can I still petition for expungement if I had probation violations?

If you admitted a probation violation while you were on probation, then you may still get a dismissal under California Penal Code section 1203.4, but the motion is discretionary. Basically, this means that the judge will dismiss the case if he feels like you deserve it.

If you aren’t sure whether you violated probation, a probation violation occurs whenever a person messes up something he or she was supposed to do for court. Most common violations are things like having to get reinstated into a DUI or domestic violence class, or getting a reinstatement into house arrest after blowing the enrollment date.

Can I petition for expungement if I had a split-sentence “mandatory supervision” sentence?

Yes. However, this is a discretionary call on the part of the judge and the judges are more hesitant to grant relief in mandatory supervision cases. It is worthwhile to apply, but important to make sure that the documents supporting the petition are thorough.

Is there any way to get probation terminated early so I can get the case expunged and pass a background check?

Yes. A judge has the authority to terminate probation early where there is a good reason for early termination. I have been able to get early terminations many times. However, there really must be a good reason. Some typical examples would be where the probationer needs the expungement to enter the military or where there is a job offer on the table, so long as the California Penal Code section 1203.4 is granted.

Can my felony charge be reduced to a misdemeanor?

Possibly! It depends on whether the charge was a “wobbler”. A Penal Code section wobbles if it can be charged as either a misdemeanor or a felony. If the charge wobbles you can request that the court reduce the felony conviction to a misdemeanor after the fact. Penal Code section 17(b) provides that a judge may reduce certain felonies to misdemeanors after completion of probation.

How can I see if the charge was a wobbler?

One way to find this information is to review the statute you were convicted under – California Penal Code- and look for language like:

“shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.”

This wording indicates that the charge can be punished by prison or by county jail. This charge wobbles. However, if the punishment indicated is only “imprisonment in the state prison . . .” this charge is strictly a felony and cannot be reduced.

Do I need to hire an attorney to get my case expunged?

No. You can attempt to complete the expungement process on your own.

However, I would be careful about doing an expungement on your own if you have probation violations. A person who doesn't spend time in court or work on these with some frequency may not have a good idea of how to present a matter for a discretionary expungement. If you poorly present your case and the expungement is denied a judge is unlikely to reconsider the matter, at least not for some time.

Can expungement restore my 2nd Amendment right to own and use firearms?

You may be able to get gun rights restored. While the expungement cannot restore gun rights, if you were convicted of certain felonies, you may be able to get the charge reduced to a misdemeanor for all purposes (Penal Code section 17(b)). There are many charges which result in a loss of 2nd Amendment rights whether misdemeanor or felony. Most of the common charges where guns are permanently forbidden are assault charges or domestic violence (for example, Penal Code section 245, 273.5, 240, or 243). Drug or theft charges have the best change for restoration rights. Consult with an attorney for details specific to your case.

Can I pass a background check for a job after an expungement?

CALIFORNIA LAW ONLY – IF YOU LIVE IN A DIFFERENT STATE OTHER RULES MAY APPLY After an expungement is granted it is, for the most part, illegal for a background check company to disclose the conviction to a potential employer. Major exceptions apply - an expunged charge will still show if you are applying for a professional license, such as contractor, nurse, accountant, real estate, doctor, or lawyer. Expunged charges will also show if you are applying to work at a hospital or school.

If my expunged charge will still show when I am applying for my professional license, is it worthwhile to apply for an expungement?

Yes. The person reviewing your application will certainly see that the charge has been expunged. If you are attempting to show rehabilitation or good moral character an expungement will be essential.

Can I get a professional license after an expungement?

Yes. Don’t give up on your dream! I have met several attorneys and medical professionals who have significant criminal records. The key will be to show that you are rehabilitated and now have appropriate moral character. An expungement will be an essential part of the process.

Will an expungement help me with immigration?

Maybe, but this is certainly not guaranteed. The Federal Government will still consider the charge a conviction, but as with many other areas, if the call is discretionary, typically it will help you to have the charges expunged.