Petition for Dismissal
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Summary: A Petition for Dismissal, also known as a Petition to Expunge Conviction, may be used to ask the court to dismiss an old conviction. It is available to defendants who were convicted of a misdemeanor or who were convicted of a felony and received a probationary sentence.
Attorney: An attorney is generally not required for a Petition for Dismissal. It is a fairly simple and straightforward procedure, and many counties have programs to help defendants prepare the petition. Check with the local probation department, public defender’s office, or court clerk for available free or low cost assistance programs.
Danger: A dismissed or expunged conviction still exists. It is not really “erased.” The defendant will generally still have most of the consequences of the original conviction, including any requirement to register as a sex offender and any gun prohibition. Also, if a conviction is dismissed, the court may consider that the defendant is no longer in custody for purposes of bringing a habeas corpus petition. In other words, a successful Petition for Dismissal could bar defendant from using other methods to challenge the conviction and the consequences of conviction.
Lead Statutes: Penal Code §§17, 1203.4, 1203.4a
Criminal Conviction: Not Challenged
A defendant who is suffering from sexual trauma, traumatic brain injury, posttraumatic stress disorder, substance abuse, or mental health problems as a result of serving in the United States military may use forms that allow the court to grant further relief, such as sealing police records.
Where to File: In the Superior Court that sentenced the defendant.
Who to Serve: The district attorney must be served a copy of the petition, and proof of service must be filed with the court. The court may also look to the probation department for guidance on the petition, so it is best to also serve them.
Appearance Required: Yes. In misdemeanor cases, an attorney may be allowed to appear in place of the defendant if the defendant files a waiver of personal appearance.
Time Limit: None. May be filed anytime after the defendant has completed
Effect if Granted: The court records will be updated to indicate that the defendant was convicted, but that a Petition for Dismissal was granted.
It is valuable to have an old conviction dismissed using this method, but a person with an “expunged” conviction still has a criminal record. The conviction is not truly “erased.” The conviction can still be used to deny the defendant public employment, and it can be used to deny the defendant some government issued licenses and commissions. It is theoretically illegal to discriminate against a person based on a conviction that has been dismissed, but there are so many exceptions and loopholes that it is unrealistic to expect enforcement of the law. The petition will not fully restore gun rights and will not relieve a defendant of any obligation to register as a sex offender.
Can the Judge Deny My Request to Expunge My Record?