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Expungement With Probation



Expungement when probation was granted – Penal Code 1203.4

In order for a charge to be expunged when probation was granted certain requirements have to be fulfilled:

–  The defendant has to have completed probation successfully.

–  The defendant cannot be currently serving a sentence for any offense.

–  The defendant cannot currently be on probation for any offense.

–  The defendant cannot currently be charged with any offense.

If all of these conditions are met, the court must grant the motion. People v Hawley (1991) 228 CA 3d 247, 249, 278    

The rule stated above does not apply to certain types of charges:

–  Any Misdemeanor that is within the provisions of Section 42002.1 of the Vehicle Code, misdemeanor convictions relating to failure to stop and submit to inspection of equipment or an unsafe condition endangering a person.

–  Certain sex offense – Penal Code 286(c), 288, 288a(c), 288.5, 289(j) or any felony conviction relating to 261.5.

–  Offenses listed in section 12810(a)-(e) of the Vehicle Code. This section deals with DUI offenses, as well as other moving violations of the Vehicle Code. These charges are now not given the benefit of section (a) of 1203.4.  These charges can still be expunged though, but it is no longer mandatory for the court, instead it is in the interest of justice. Basically, the court has discretion.

Even if probation has not been successfully completed, the Court can still expunge the charges, if the Court feels it is in the interest of justice. The Court can look at the conduct of the defendant since the conviction occurred. Even if the motion is denied, it does not bar a future motion to be heard, if new circumstances arise, and the court can once again analyze the conduct of the defendant since the conviction.


What a successful expungement does not do (this list is not inclusive):

–  It does not mean the conviction cannot be used as a prior in court.

–  Does not relieve the defendant the duty of revealing the conviction if the individual applies for public office, or licensure form any state or local agency, or for contracting with California State Lottery.

  • 2 Cal Code Regs §7287(d) states that a private employer may not ask any job applicant about any misdemeanor conviction dismissed under §1203.4.

–  Does not restore gun rights.

–  Does not mean that the individual cannot be convicted as an ex-offender in possession of a weapon, although this can be handled through a Penal Code §17(b) motion.

–  Does not remove conviction from the individuals DMV record.

DUI Expungement Attorney Michael Rehm - (800) 978-0754

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