The Records Clearing Page: Record Clearance for Persons Who Have Been Granted Probation FAQ
Who Is Eligible?
California law has a number of provisions by which someone arrested for, or convicted of (sentenced by a court) a criminal offense may improve upon or correct the record of his police arrest or court conviction. One of these provisions, California Penal Code Section 1203.4, makes a special form of record clearing relief available to persons who have been granted probation after being convicted by a court of either a felony or misdemeanor. The probationer (the person who has been granted probation) may apply for this relief if he or she has fulfilled all the conditions of probation, or has been discharged before the termination of probation, or in any other case in which the court, in its discretion determines that the probationer should be granted this type of relief.
If the probationer meets certain conditions of eligibility, he or she may be permitted to withdraw a plea of guilty or no contest, or if convicted after a plea of not guilty (as in a jury trial or court trial), to set aside a verdict of guilty. In either case, the court will then dismiss the formal accusation against the defendant, and, with certain exceptions, the defendant is then released from many of the legal consequences (called "penalties and disabilities") of the criminal conviction.
Who Is Not Eligible?
A person is not eligible for a record clearance of this type if any of the following conditions exist:
The Record of Conviction Continues to Exist and Continues to Have Certain Effects.
- The person is serving a sentence for any offense, is still on formal or informal probation for any offense, or is charged with the commission of any offense;
- The person was arrested and convicted of a new crime within one year of the pronouncement of judgment;
- Probation for the current application was revoked and not later reinstated;
- There is an outstanding warrant for the arrest of the person;
- The person has failed to appear or failed to pay fees or fines to the Department of Motor Vehicles;
- The conviction is for an infraction (an infraction is defined as a criminal offense for which a jail sentence may not be imposed, whether traffic or otherwise), or for a violation of Sections 2800, 2801, or 2803 of the California Vehicle Code.
A record clearance of this type does not eliminate all possible adverse consequences or release a person from all "penalties and disabilities" resulting from the charges in the case.
Information relating to the case may be made available and therefore used against the interest of a person where the release of such information is authorized by law. Further, an order of dismissal pursuant to Section 1203.4 of the Penal Code does not relieve a person of the obligation to disclose the conviction in response to direct questions contained in any questionnaire or application for public office or for licensure by any state or local agency, or for contracting with the California State Lottery.
Additionally, this type of record clearance will not keep the conviction from being used against a person as a prior conviction in any future criminal proceedings, such as for enhancing a prison sentence. It also will not serve to avoid suspension of one's driving privilege as set forth in Section 13555 of the Vehicle Code, nor will it permit the person convicted to own, possess, or have in his or her custody or control any firearm capable of being concealed upon the person. Furthermore, it will not prevent a person from being convicted under Section 12021 of the California Penal Code (possession of a firearm by a felon or person addicted to a narcotic drug).
Anyone interested in obtaining this type of record-clearing relief should contact the Adult Probation Department of that particular county (of the 58 counties in California) in which the conviction occurred. Questions about a conviction which occurred in any of the municipal courts or the Superior Court of Santa Clara County, for example, should be directed to:
Record Clearance Desk
Adult Probation Department
of Santa Clara County
2600 North First Street
San Jose, California
(408) 435-2073
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Copyright 1995-1996, Jerome P. Mullins, Attorney at Law, alawyer@silicon-valley.com, all rights reserved.
Please note that the materials included in this page and all of its subpages are intended to be general information only and are not provided in the course of an attorney-client relationship nor do they constitute legal advice. They are not intended to be a substitute for obtaining legal advice from your own legal counsel.
