How long does a misdemeanor or felony arrest stay on my record?
Forever or until you do something about it. A misdemeanor or felony arrest remains on your record forever and can be used against you for sentencing purposes on future cases regardless if you were guilty or innocent of that previous charge. Although a DA cannot question you on the stand in regards to past arrests, they can pre-judge you based on arrests and choose not to plea bargain with you or your attorney because they feel you have had too many “police contacts.” Under California Penal Code Section 851.8 you can request to have your arrest record sealed or destroyed if you were arrested within 2 years of that arrest or the filing of the criminal charge against you, whichever came later. You must show reasonable, reliable and material information to prove that you were factually innocent of the charges. If your case was dismissed prior to you being charged with a crime, your case was dismissed after you were charged with a crime or if you were acquitted and found not guilty, then you can have your arrest record sealed or destroyed. Remember, infraction charges cannot be sealed or destroyed. Lastly, if you show good cause or you can get a DA to stipulate to your request, then you can bring your case before the court even if the 2-year statute of limitations has expired.
What is an Expungement?
After someone has pleaded guilty and been placed on probation and has either completed probation or else has been discharged prior to termination of probation, a defendant has the right to withdraw his plea of guilty. The defendant files a motion to request an expungement and it is sent to the probation department. They review the case and serve the DA. Either the DA or probation can oppose the motion. If granted the verdict would be set aside or you plea would be withdrawn and your case dismissed. There are some problems with this process. First, the DA’s office can still use these charges against you if you are charged with a subsequent offense. In order to file an expungement, you cannot presently be on probation for another offense. Although you are not required to disclose the offense in any private employment situation, you must disclose the charge in a direct questionnaire to run for public office, if you are contracting with the State Lottery or if you apply for any state or local license. What this means is if you want your state contracting license or real estate license or want to become a lawyer, doctor or accountant, you must disclose this offense. An expungement does not restore one's right to own a gun or vote and is statutorily denied to many sex offenders.
How do I restore my rights after pleading guilty or being convicted at trial?
Because simply obtaining an expungement does not restore your rights you previously lost, you must file for a Certification of Rehabilitation. A Certificate of Rehabilitation is a process that if granted, indicates to the world that you are officially rehabilitated and thus restore many of your constitutional rights. If the court agrees that you are rehabilitated, then your Certificate becomes an automatic application for a Pardon. After 7, 9, or 10 years have passed since the petitioner was released from custody or sentenced or on his or her release on to probation or parole, then a petitioner can file a “cert.” The process is somewhat elaborate, but the bottom line is that a petition is filed with the Superior Court in the county in which you reside and the DA’s office immediately starts their investigation. In many cases, the DA’s office does little or no investigation at all. A court date is set and a hearing is conducted to determine if the petitioner is rehabilitated? If this hearing is successful, your certificate becomes an application for a pardon. In the meantime, the Department of Justice, FBI, and several other agencies change your records to note that you are rehabilitated. In some cases, you do not have to register as a sexual offender or a drug offender anymore. If your pardon is eventually granted after being sent to the Governor, then you will now be able to vote and own a firearm. The only exception is that you cannot have your pardon granted if you have 2 or more offenses. Likewise, your right to have a firearm cannot be restored if you were convicted of a felony with the use of a dangerous weapon.
What are my chances of getting a misdemeanor case dismissed?
In addition to having a skilled lawyer argue that the case should be dismissed for various reasons, the County of San Bernardino offers a pretrial diversion program called RISE. This program is not guaranteed to all defendants. You must first be charged with an eligible misdemeanor crime and secondly, you must be found suitable by the court to participate in the program. Your attorney is the key factor to argue your suitability for the program. The program last for six months and during that time a defendant must complete educational classes, pay fees and restitution and must complete some community service. Once the program is completed, then the case will dismissed from the defendant’s record.
How can I avoid going to jail?
When an attorney and their client take a proactive role in their defense, there are several ways to help limit your incarceration. Once a legal determination is made that the prosecution can prove the crime, that is when alternative sentencing should be considered. From the beginning, we figure out the causes of this particular offense were and recommend a strategy. In some cases it is drug and alcohol abuse, in others it is anger or mental illness. Our goal is to seek help for our clients seek help so that future crimes are prevented and our client does not have to go through greater stresses or possible imprisonment. Preventative programs are offered in person, online, in the early and late evenings on weekdays or weekends. We have relationships with solid programs or experts who can get to the bottom of the problem and prevent adverse behavior in the future. Remember that punishment is the last line of what a court can impose on a defendant and in most cases, crime prevention is what the court is really seeking.