California drug offenses come in many forms, such as simple possession, possession with intent to sell, and drug distribution or trafficking. The severity of these charges can range from minor infractions to serious felonies, which could lead to long prison sentences. Regardless of the charge, having any drug conviction on your record can make it hard to find a job, housing, or professional licenses. The good news is that California allows you to have certain drug charges expunged from your record when you meet certain criteria set by the state. This blog will explain everything you need to know about expunging your drug charges.
What is an Expungement in California?
An expungement under California Penal Code 1203.4 is a post-conviction process that lets you withdraw a guilty or no contest plea and dismiss your criminal conviction. It’s a way of getting some relief after a conviction, helping you remove most of the impacts of your misdemeanor or felony record. This process can give you a chance for a fresh start, which can be really important for finding or keeping a job and getting professional licenses.
What an Expungement Can and Cannot Do in California
Getting an expungement has lots of benefits. For example:
- Expunged convictions can’t be used to challenge your credibility as a witness in court, unless you’re the defendant in a new case
- Employers can’t discriminate against you based on your expunged convictions when you apply for jobs
- Traveling to Canada should be easier
- It can help you avoid some immigration issues, like deportation
- It’s generally easier to get a state professional license after an expungement
However, there are some things an expungement can’t do in California. For example, it won’t:
- Reverse a driver’s license suspension or revocation
- Stop the requirement to register as a sex offender under PC 290
- Restore your gun rights under PC 29800
- Prevent the expunged conviction from being counted as a “strike” under California’s three-strikes law
Also, even with an expungement, those convictions can still be used to increase your sentence. For example, if you get an expunged record for possession of a drug, it still counts as a prior if you are arrested for another drug possession charge.
Eligibility For the Expungement of a Drug Charge
In California, you can clear a misdemeanor or felony drug charge under Penal Code 1203.4 if you meet these conditions:
- You’ve completed your felony or misdemeanor probation successfully
- You are not serving a sentence for another crime.
- You are not on probation
- You’re not facing any current charges,
However, some felony offenses can’t be cleared. These offenses include serious or violent felonies and any crimes that require you to register as a sex offender.
If you served time in California State Prison, either after your sentencing or due to a probation violation, you can’t qualify for an expungement. But there’s an exception for those who would have served time in county jail under “realignment” laws.
Also, if you worked as a firefighter while in a prison fire camp, you might be eligible for an expungement and a parole waiver under Assembly Bill 2147.
What are the Differences Between Misdemeanor and Felony Drug Charges?
Felony and misdemeanor drug charges have some key differences. When it comes to clearing a criminal drug record, it’s much harder to erase a felony charge compared to a misdemeanor charge.
Felony drug offenses can sometimes be sealed or expunged, but only under very specific circumstances. Courts usually find it easier to approve expungement requests for misdemeanor charges. The reason for this is that felonies are generally seen as more serious than misdemeanors.
For instance, serious drug crimes like trafficking and manufacturing typically don’t qualify for expungement. In contrast, a misdemeanor drug offense—like possessing less than an ounce of marijuana or using drugs—has a better chance of being expunged. That’s because the law views trafficking and manufacturing as more detrimental to society, while personal use or possession mainly affects the individual.
Another important point is that courts are more likely to grant expungement or sealing if the record is from an arrest rather than a charge or conviction. If someone was arrested but not charged or convicted, they have a stronger chance of getting their record expunged.
The Procedure for Expunging Drug Charges
Below is the process for expunging drug-related convictions in California:
Seek Legal Help
The expungement process can be tricky and involves a lot of paperwork. If you make mistakes, it can lead to your application being turned down. An experienced criminal defense attorney can make this process smoother and help you get it right the first time.
Complete the Right Forms
Your attorney will know which forms to use for your specific situation. If you’re handling this process yourself, you can find most application forms at your local courthouse or online.
For example, if you’ve completed misdemeanor probation, you’ll fill out a petition to dismiss a misdemeanor under 1203.4 PC. If you haven’t completed probation yet, you’ll need to file a motion to terminate probation. If the court denies that, you can submit a petition for dismissal.
You can’t expunge felonies until they’re reduced to misdemeanors. Courts typically allow requests to lower wobblers to misdemeanors. Non-wobbler felonies can only be lowered to misdemeanors through a specific form under PC 17(b)(3). Once you have done that, you can then file a petition to dismiss a misdemeanor under PC 1203.4.
Lastly, fill out a separate form for each conviction you’re looking to expunge. You can also add character references with your petition.
Filing for Expungement
After you fill out the necessary forms, you need to submit them to the court where your case was heard. Usually, the court will get back to you within five months. Each court has its own rules and fees. Sometimes, you might need to drop off the expungement forms in person or send them by mail.
You should file your paperwork on time. For example, you should give the prosecutor at least 15 days’ notice before the hearing so they have time to review your case and raise any objections.
If you’re facing financial difficulties, you might qualify for help with your filing fees.
Get Ready for Your Expungement Hearing
Whether you need to show up for your expungement hearing depends on your specific case. The judge will make the final decision on whether to grant the expungement, and there won’t be a jury involved. You have a better chance of success if you:
- Have a stable job
- Complete all the mandatory community service
- Don’t have any new convictions
Refile If Your Petition Has Been Denied
When the court denies your expungement, you can submit a new petition with any necessary changes after six months. If the judge approves your expungement, your case will be sealed from public access.
Types of Drug Charges That the Court Can Expunge
There are various offenses related to illegal substances that carry serious penalties. These include possessing drugs or using controlled substances, drug paraphernalia, having controlled substances for sale, transporting illegal drugs, and growing marijuana.
Laws about these crimes vary across the country, and so do expungement laws. In California, you can only expunge minor drug charges like simple possession. While many drug charges lead to convictions that can’t be expunged, you might still be able to clear your record if you meet specific conditions for each case.
Sale, Possession, and Distribution of Drugs With the Intention of Selling
In California, if you’re caught with less than one ounce of marijuana, you might be able to expunge your drug possession charges. You just need to prove to the court that you had less than the legal amount at the time.
Also, it's harder to expunge a first or second drug charge from your record. However, if you face third or fourth-degree drug charges, those can potentially be erased if the court believes it’s in the best interest of the public. They’ll look at your character, behavior, and the specifics of the drug charge when making their decision.
Frequently Asked Questions on Expunging Drug Charges in California
Below are the most commonly asked questions on expunging drug charges:
What are the Odds of Expunging a Drug Charge?
It’s difficult to know how likely it is for someone to have their drug charge expunged. Expungement often depends on:
- The offense committed
- The penalties imposed
- When it happened
- The laws governing expungement in California
In California, you might be able to clear your record if you finished a drug diversion program or something similar before your trial. The best way to see if you qualify is to take an eligibility test.
If you meet the basic requirements but have questions about your case, speaking with a lawyer is advisable. They can help you understand what kind of evidence could be useful, especially if there’s some flexibility with your drug charges in court.
Does an Expungement Really Erase the Drug Charge Records?
In California, when your records are expunged, they are not completely erased; they’re modified so you’re not impacted by them as much. When the court expunges your criminal record under PC 1203.4, it releases you from many negative effects of that conviction. It can help you improve your quality of life and open up more job opportunities and housing options.
However, they can still show up in certain situations. For example, prosecutors, law enforcement, and certain government entities can access these records. Prosecutors can also use these records to influence future sentences if you face new charges.
Can I Qualify For an Expungement If I Did Not Complete Or Violate My Probation?
You have to satisfy all the conditions of probation to get an expungement in California. However, if you’ve violated probation, the court will have to decide whether to grant you the expungement based on the factors of your case.
During your court hearing, the judge will look at several things, including:
- The seriousness of the crime you were convicted of
- How well you carried yourself while on probation
- Your past criminal record
- Any extra evidence that shows why you deserve the expungement, such as strong connections in your community
Can I Expunge My Drug Record If I Was Eligible For a County Jail Sentence Under Proposition 47 Realignment?
You might be able to clear your drug record if you had been sentenced to county jail instead of state prison under Prop 47.
According to California Penal Code 1203.42, judges can grant an expungement if:
- They think it’s in the interests of justice
- At least two years have passed since you finished your sentence
- Your offense carries a county jail term
- You’re not on supervised release, serving your sentence, on probation, or facing new charges.
To request an expungement under this code, you can file a petition with the court either in person, through a lawyer, or through a probation officer with written authorization. The court can either let you change your guilty or no contest plea to not guilty, or if you were found guilty after pleading not guilty, they can set aside that verdict.
In either scenario, the court will dismiss the charges against you, similar to a typical expungement under PC 1203.4.
Should I Hire an Attorney to Help Me With My Criminal Drug Record?
If you want to get a drug charge expunged from your record, you should talk to a local attorney who specializes in drug charge expungement.
An experienced criminal defense attorney can help you understand how to clear or expunge your drug record. They can evaluate your situation to see if your request is likely to be accepted.
Your lawyer will also explain your rights and protections according to California’s laws. If clearing your record isn’t possible, they can suggest other options for post-conviction relief. Also, your lawyer can represent you in court and help correct any mistakes.
Find a Criminal Defense Attorney Near You
Expunging your drug charges can take time, and the process can be a bit complicated. If you want to expunge your drug charges, you’ll need to gather all the necessary paperwork, request an expungement, and fill out the required forms to get the charges removed. If you’re unsure about doing it all by yourself, you should hire an experienced criminal defense attorney to assist you in clearing your drug offenses from your record. Our team at the Long Beach Criminal Attorney is here to help you navigate this complex legal process. Give us a call today at 562-308-7807.