In this series, we’ve defined criminal records and discussed the importance of knowing your criminal record history and destroying criminal records. Today we will discuss options for getting convictions dismissed.
Fortunately, there are several ways to have convictions completely dismissed from your record. These include reducing your felony to a misdemeanor, expungement, diversion, and marijuana charge erasure. These methods are explained below.
Reducing a felony to a misdemeanor
A conviction can sometimes be reduced from a felony to a misdemeanor.1 This is possible for violations of offenses frequently referred to as “wobblers.” Wobblers are are offenses that can be charged as either a felony or misdemeanor.
If the court grants reduction, the offense is considered a “misdemeanor for all purposes” which means gun rights are reinstated and immigration consequences associated with the felony are removed.
Expungement is used to have convictions dismissed from your record. You must satisfy the following elements to be eligible for an expungement:
- Not be on probation or parole when the court hears your motion to expunge your conviction
- Not be serving a sentence
- Not be charged with committing any offense.3
Since “offense” includes all crimes (felony, misdemeanor, and infraction), outstanding warrants and traffic infractions may disqualify you from expungement.
By law, the court is required to grant expungement motions 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.4
Diversion is routinely offered for minor, non-violent offenses such as petty theft. With diversion cases, charge against you will be dismissed if you successfully complete all of the diversion program requirements.
If you are charged with drug possession or being 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 dismissed if you successfully complete the program and stay out of trouble for 18 months.5 A huge benefit of a 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.6
Proposition 36 allows drug charges to be dismissed upon successful completion of the program.7 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.
Marijuana possession erasure
All possession of marijuana for personal use convictions, after January 1, 1976, are automatically erased from your record after two years.8 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.
If you are in need of help through any part of the dismissal process, please contact me at (530) 823-5400 for a free consultation.
- Penal Code § 17(b)
- See People v. Franklin (1997) 57 Cal.App.4th 68.
- Penal Code § 1203.4
- 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.)
- Penal Code § 1000
- Penal Code § 1000.4(a)
- Penal Code § 1210.1
- Health & Safety Code §§ 11361.5, 11361.7.