Can an Expungement Be Denied?
Denied Expungements by Orange County Superior Court judges are common and it oftens get in the way of people clearing their criminal record. This is especially the case for DUIs. A judge may deny an expungement if he feels like it without giving any explnation. A judge may also deny an expungement if the defendant has not finished the terms of his probation or is still owing money. Although this article is specific to Orange County California Superior Court misdemeanor convictions, the same laws apply for the whole state and is applicable. This article will go over the various reasons why a judge will make a ruling of denied expungement
If you are looking to get your criminal conviction expunged and you did your paperwork yourself then there is a good chance that your received back an order from the judge letting you know your expugement is denied. If you were lucky enough during the expungement process the judge would have put two words to at least let you know the reason for the denial.
You will not be able to get your record expunged unless you refile the paperwork again and paying another $150 dollars for the filing fee. Your case probably had an issue with it that gave the judge a reason to issue a denied expungement.
Why Would Expungement Be Denied by a Judge in Orange County?
If you are legally eligible to get an expungement, it may be denied by a judge. Even if you do qualify for an expungement, there could be other reasons why your petition might be denied. These include: Your charged not being eligible, you violated probation, you still had fines, you did your paperwrk wrong, or the prosecutor was pursuassive in their objection. The law is laid out in penal code 1203.4
Not Statutorily Eligible
In California, expungement law falls into two catagories. People are seperated into eligible and not Most cases are eligible however there are a handful of convictions that are not. These include a handful of sex offenses. Howwever, there are still ways to remove the registartion requirement from your criminal record even if you got convicted.
Not Statutorily Eligible Case will Result in a Denied Expungement
Generally, if you spent more than a year in jail, then you are not eligible for an expungement and will result in a Denied Expungement. These usually involve felonies. However, lots of time, people are sentenced to more than a year in jail, but the sentence has been suspended. These are called executed suspended sentence.
For example, you were sentenced to 2 years in jail, but you can stay out of jail if you complete 30 days of community service and never mess up, but upon messing up, you will go back in. These types of felonies with over a year in jail can be expunged. However, it is important to know where you case stands because you if you moved forward on an expungement on a 1203.4 then you will be investing money in the wrong area of law. If you did prison time then you need to invest yourmoney on a certificate of rehab instead.
Technically all courts are supposed to accept the California judicial forms for expungement. However, many will have their local forms they prefer. The local forms make it easier to process. In my experience, it is hit or miss with the petitions. You will want to fill out as much as possible and not leave anything to chance. If you leave out a small detail it can result in a denied expungement. Below are list of mistakes I have seen in my practice that resulted in cases being sent back.
Common mistakes on petition that Result in a Denied Expungement
- Imporper Case number on paper (This can be fixed by going here and looking for your case in Orange County)
- Wrong Driver License
- Ciation Number on paper instead of Case Number
- Wrong Agency Served
- Incorrect Law Section (Penal Code Instead of Vehicle Code for 23152/ab/ (DUI)
Petitions are often denied for improper filing in Orange County because the right agency was not served. This happens when you serve the Orange County District Attorney’s Office, but you were supposed to serve the Anaheim City Prosecutors Office instead. These types of denials happen when an attorney or person doing their own fills out the CR 180 and CR 181 and serve it on the District Attorney instead of the Anaheim City Prosecutors. The bottom line is to know what agency prosecuted your case.
Violations of Probation and Subsequent Conduct Results in Denied Expungement
Violations of probation are reasons to deny expungements in Orange County. The more severe and recent the violation then the more likely your expungement will be rejected.
Common Reasons Violations that Causes Denied Expungements. I have seen reasons to deny expungements such as not completing community service in time, new charges didn’t register in class in time, kicked out of course, and not paying fees. This happens very often when you with people who are truing to expunge a DUI from their history.
Outstanding Fines & Restitution will Result in a Denied Expungement Petition
If you owe restitution on your case, then the Court will deny expungement until it is all paid back. I have only seen one exception in my practice, and it had to do with a 30-year-old case. Also. if you owe fines on your case, then the Court will want to see that you paid it all off before considering your expungement. If you case is in Fullerton for an expungement, then the Anaheim City Attorney will oppose your expungement until you pay their fees.
You will want to pay all your fines and make all restitution if you want your expungement granted. The judge will refuse to grant your expungement if you stil have outstanding fines and fees. .If you’re denied because of a subsequent conviction or one of the other listed reasons, you’ll need to start the process again which includes paying the filing fees of $150.00 fee in Orange County Superior Court or 120.00 in Los Angeles Superior Court. It’s best to check with the court clerk and victim witness in Orange County before moving forward on your case. .
Improperly Filed Errors in Petition
The wrong information going into the forms will cause it to bounce back. This happens especially when it comes to the sections where you have to cite your code. Many people do not put the vehicle or penal code or just leave it out. For examplem, when a person is convcted of a DUI many times they are convicted of both Vehicle Code 23152a and 23152b. However, many people will overlook it and put down just one. This will result in th court clerk rejecting this form.
In addition, if a person did this via mail then they will not know about this for weeks and even month until they receieve it in the mail. If your expungement petition is sent back for being improperly filed or you had the wrong information then you will ned to refile it resulting in another trip to the court house or longer waiting period. You will need to redo the paperwork and provide the correct information.
Pending Criminal Charges
Another one of the requirements for expungement is that you can’t have a pending case. If you have other pending criminal cases you will not be eligilbe for an expungement and the Orange County Court Judge will reject your expungement petition but not after collecting your filing fees. You must first resolve your pending criminal offenese and not be on probation for the case. There are no exceptions for this. However once you complete the pending case and done with probation then you can move forward with your request for expugement.
The Prosecutor Makes a Strong Case
There will times where you will just have the bad luck of having yoru case in front of a new District Attorney who’s only goal is winning. A zealous prosecutor may be on the other end of the table and make a case against you just because they can. If you need to get rid of charge such as a DUI or some other crime where the Orange County Dsitrict Attorney finds to be discretionery then they may object jsut because they can and argue against it. It’s best to be fully preprared and know the ins and outs of your case in case this happens.
Can You Refile for Expungement in California After an Application Was Denied?
In California you can apply for the expungemenent of your record after you have being denied. If you do file again then you must prove that there has been a change in circumstances since the last time you filed or at least show that there is information that you failed to include last time for the courts consideration. These changes could include a job offer, marriage, divorce, or any other significant life event.
When the courts reject your expungement it does not give a reason why. The courts do not define what a “change in circumstances” is, but sometimes they may just say they would like to wait for time to pass. Waiting to re-file an expungement application does not create a “change in circumstances”, but waiting to re-filed and showing the court the convictions created financial hardship would create a “change in circumstance”. Some judges will say they will want to wait a year before you refile, while others will be vague about it and say they want to wait for some time to pass before thy reconsider.
I Was Denied an Expungement Can I Appeal?
In California individuals who have completed their sentence may apply for an expungement of the conviction pursuant to Penal Code 1203.4 . If the court grants the application, then they will be free from all disabilities. If it was denied then it can be appealed. Sometimes it is better to get into compliance then appeal.
However, there are times when you should appeal. These include when the court has made a wrong decision. For example, some people are sentenced to prison but the sentence was suspended. Some judges will errernesouly deny the expungement because it was a prison sentence. under People v Parker 158 CAl Rptr. 3d 481 this is stll consider under a year still under 1203.4 which means you can still expunge it. .
Expungement cases are often complicated matters. They often involve highly individual facts which makes a generalized remedy nearly impossible. Please consult with an attorney before acting upon any information contained herein.
Benefits of Having an Experienced Expungement Attorney to Avoid Denial of Expungement
Having an experienced expungement attorney handling your case will speed up your case help you avoid these mistakes. In addition, having an experienced expungement attorney will help you deal with old cases that are no longer in the court system and have been purged by walking you thru a criminal background check. .