Legal Question in Criminal Law in California

There is a lot of disagreement among California attorneys on this issue. I have a lot of respect for the San Francisco Public Defender's Clean Slate program, but I don't agree with their advice on this issue.

Under Penal Code �1203.4, a person who is granted probation can apply to have the case dismissed after probation is complete. This is sometimes called an expungement, but it doesn't really expunge anything or seal your record. The conviction is still a part of the court's public records, which will also show the case was dismissed.

You still must disclose the conviction when applying to be a police officer or for certain other jobs, or if asked on an application for a state license or to run for public office. It will not remove any restrictions on your right to own a firearm or relieve you of the requirement to register as a sex offender, if applicable. The conviction can still be considered a prior offense; for instance, a prior theft conviction could make any future petty theft a felony, or a prior DUI conviction could be used to increase the punishment in subsequent DUI convictions.

California Labor Code �432.7 says employers can't ask about any arrest that didn't result in a conviction, inquire about it from other sources, or use it in a hiring decision.

Some attorneys interpret this Labor Code section to mean you don't have to disclose a conviction that was dismissed under Penal Code �1203.4, but I usually advise clients to disclose it, with an explanation that the conviction was subsequently dismissed.

The issue came up recently when Mel Gibson had his infamous DUI conviction dismissed under 1203.4. The article below has a pretty good overview of the issue; ironically, the title is "'Expungement' is no clean slate."

http://tinyurl.com/expungement-is-no-clean-slate

Generally I would tell someone that if their record or conviction were dismissed under CPC 1203.4, that when applying for any government positions, the application usually states that convictions expunged under 1203.4 still must be disclosed. When someone is applying for a license of any type I have always advised my clients to tell the truth along with a explanation as to what happen and the circumstances under which it occurred. Generally, honesty is what they are looking for unless you are applying for a position that prohibits anyone convicted of any crime from obtaining.

However, San Francisco's Clean Slate Program may change the situation. I do not work in San Francisco. I practice law in Northern California, Sacramento which is two hours northeast of San Francisco. The Clean Slate Program is generally restricted to residents of San Francisco County and I am not familiar with how it applies outside of San Francisco. If you are under the Clean Slate Program, my advice to you is to contact the San Francisco Public Defender's office and start asking questions. Find out how the program works and why they have informed you that it is not necessary to disclose the information.

Good Luck,

Brian McGinity

If successfully expunged, that means the conviction is retroactively withdrawn and the charges dismissed. That does not 'remove' the conviction, but merely changes the record to show 'conviction reversed and dismissed by expungement'. If expunged, you would be able to say 'no' to conviction on most private employment applications. However, the conviction is still a 'prior' for purposes of repeat offense, and must be disclosed on any application for government and professional licensing, bonding, security clearance, etc. However, an employer can demand you allow them to search your record before hiring, where they will find it, and they are not prohibited from denying you employment because of prior convictions.