Quincy Hoang, x-Attorney

This article briefly discusses record clearances (also known as expungements) in Santa Clara County, California and provides links to an application and other valuable resources.

Discussion

Your criminal history is a record of your arrests and convictions.  Often, a criminal history may prevent you from obtaining a desirable job, voting rights, rights to own or possess firearms, or even prevent obtaining U.S. citizenship.  Therefore, it may be wise to clear your record whenever possible to obtain relieve from the negative effects of a criminal record.

Can my employer ask me about arrests or use information about past arrests to fire me (or to not hire me)?

Generally not. Under California Labor Code § 432.7, if you are applying for a job, or being considered for promotion, termination, or placement in a job training program, your employer cannot ask about any arrests that don’t result in a conviction, or any arrests that led to participation in a diversion program (such as drug rehabilitation). Your employer is also prohibited from trying to find out from other sources whether you have been arrested. If your employer somehow learns of your arrest record, § 432.7 prohibits him or her from considering any arrest that did not lead to a conviction, or any arrest that led to a diversion program, in making decisions regarding your hiring, firing or promotion. There are some important exceptions to this general rule regarding: arrests pending trial, law enforcement positions and health facility positions.

Resources regarding Record Clearances

1. Criminal Court Record Clearance: guide to record clearance from Santa Clara County’s Superior Court.  This is where you need to go to find instructions to clear your record.
2. Record Clearance – Probation Department: for those who want to clear their records without hiring an attorney, this is where you’ll find an application to do so: (Application for Record Clearance).
   1. FOR MOST CASES (I’d say 4 out of 5 cases) – you do not need to hire an attorney to clear your record.  You can generally clear your record by filling out an application and paying the fee of $120.00.
   2. FOR THOSE of you who didn’t save any of your paperwork regarding the case you want cleared, you can get a complete rap sheet of your criminal history from the Sheriff’s Department or if you need information for just one case, you can get that from the Court Clerk’s Office where the case was adjudicated.
3. Clearing Your Records (Expungement):  good summary of requirements for record clearance  from the Santa Clara County Public Portal.

Curious What the Law States?

For those of you who are interested, California Penal Code § 1203.4 states

(a) Every defendant convicted of a misdemeanor and not granted probation shall, at any time after the lapse of one year from the date of pronouncement of judgment, if he or she has fully complied with and performed the sentence of the court, is not then serving a sentence for any offense and is not under charge of commission of any crime and has, since the pronouncement of judgment, lived an honest and upright life and has conformed to and obeyed the laws of the land, be permitted by the court to withdraw his or her plea of guilty or nolo contendere and enter a plea of not guilty; or if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and in either case the court shall thereupon dismiss the accusatory pleading against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 12021.1 of this code or Section 13555 of the Vehicle Code. The defendant shall be informed of the provisions of this section, either orally or in writing, at the time he or she is sentenced. The defendant may make an application and change of plea in person or by attorney, or by the probation officer authorized in writing; provided, that in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if relief had not been granted pursuant to this section. This subdivision applies to convictions which occurred before as well as those occurring after, the effective date of this section.

(b) Subdivision (a) does not apply to any misdemeanor falling within the provisions of subdivision (b) of Section 42001 of the Vehicle Code, or to any infraction.

(c) A person who petitions for a dismissal of a charge under this section may be required to reimburse the county and the court for the cost of services rendered at a rate to be determined by the county board of supervisors for the county and by the court for the court, not to exceed sixty dollars ($60), and to reimburse any city for the cost of services rendered at a rate to be determined by the city council not to exceed sixty dollars ($60). Ability to make this reimbursement shall be determined by the court using the standards set forth in paragraph (2) of subdivision (g) of Section 987.8 and shall not be a prerequisite to a person’s eligibility under this section. The court may order reimbursement in any case in which the petitioner appears to have the ability to pay, without undue hardship, all or any portion of the cost for services established pursuant to this subdivision.

(d) Any determination of amount made by a court under this section shall be valid only if either (1) made under procedures adopted by the Judicial Council or (2) approved by the Judicial Council.