Understanding the Differences Between Expungement and Sealing

Are you wondering what the distinction is between expungement and sealing of your record? These terms can be confusing, but reading this guide and finding an expungement lawyer will help.

The terms “expungement” and “sealing” are often used synonymously, but they’re far from interchangeable. Expungement and sealing refer to two separate legal processes, and people aiming to clean their records need to understand what sets these processes apart.

Are you planning to work with an expungement/sealing lawyer? Before you do, here’s everything you need to know about the factors separating this process from sealing a record.

What’s the Difference Between Expungement and Sealing Records?

Though expungement and sealing have some similarities, there are important differences between them. Here’s what you should know about the difference between expunging and sealing records:

Expungement (PC §1203.4 “Dismissal”)

Expungement in California most commonly refers to a dismissal under Penal Code §1203.4, not the complete physical destruction of a record.

With this process:

• A person may withdraw a guilty or no contest plea and enter a not-guilty plea.
• The court sets aside the conviction and dismisses the case.
• You are released from many (but not all) penalties associated with the conviction.

If your record is successfully dismissed, you usually don’t need to disclose the conviction on most private employment or housing applications. However, certain disclosures are still required for:

• State licensing boards
• Government employment
• Law-enforcement applications
• Federal/immigration matters

Importantly, expungement does not erase the record, and law enforcement and courts can still see it.

Record Sealing

Record sealing in California can apply to more than just arrests. It includes:

• Arrest records with no conviction (PC §851.91)
• Juvenile records
• Certain conviction records that become eligible under California’s Clean Slate laws

Sealed records generally become inaccessible to most employers and background checks, though they remain available to law enforcement and the courts.

Granting a petition to seal is sometimes automatic under the Clean Slate Act. In other cases, the judge has discretion.

Understanding California’s Approach to Court Records

California Penal Code 1203.4 defines the state’s rules for expungement. Under this code, eligible defendants can withdraw a guilty/no contest plea and enter a not guilty plea instead. Then, the court will set its previous verdict aside and the defendant will be freed from any relevant penalties.

Not all offenses are able to be expunged in California. The more serious your offense is, the less likely you are to be eligible for this process.

How the Clean Slate Law Affects Record Sealing

On July 1, 2023, the “Clean Slate Law” (SB 731) took effect in California. This law automates sealing/dismissal for many convictions, depending on offense type, sentence served, and the person’s post-conviction history. 

Automatic relief applies to most misdemeanors and certain non-serious, non-violent felonies once the sentence is complete and the person remains conviction-free for a specific period. These people’s conviction records will normally be sealed:

• The person completes their sentence
• The applicable waiting period is satisfied
• They remain conviction-free during that time
• The offense is not serious/violent and doesn’t require registration

General waiting-period guidelines include:

• About one year after completion of many misdemeanor sentences
• About four years after completion of many non-serious, non-violent felony sentences
• After completion of probation for certain offenses, though exact timing can vary

In cases where charges were not brought, the Clean Slate Law also provides for automatic arrest record sealing. On the other hand, some serious crimes (like child pornography, murder, arson, and sex crimes) cannot be sealed automatically or through a petition.

How Can You Clean Your Record?

Based on your specific circumstances, the steps you’ll follow to clean your criminal record in California will differ. Here’s what you should know about record cleaning for:

Arrests With No Conviction

Did you get arrested but not convicted? If so, you could have an opportunity to seal your case via Penal Code Section 851.91. This code applies in situations such as:

• No charges were filed
• Charges were filed but dismissed
• You were acquitted at trial

In order to request sealing in these scenarios, you can use Form CR-409.

Misdemeanors

If you have a misdemeanor conviction, you can ask the court to dismiss it if you:

• Have no new cases pending, and
• Are not on probation/parole in any case

The status of your probation will affect the court’s next steps:

• If you satisfied the terms/conditions of your probation, the court is required to grant your petition. This also applies if you were granted early termination of probation.
• If you didn’t satisfy the terms/conditions of your probation, the court might or might not grant your petition. You can attempt to convince the court that approving this petition would be “in the interest of justice” by attaching other documents.
• If you were not given probation, you’ll need to wait a year from the date of conviction before starting this process.

Are you still on probation in your case? In that situation, you can still move forward with this process – but you’ll need to take an extra step to do so. Along with your dismissal request, you need to ask for early probation termination under Penal Code Section 1203.3. Since there is no statewide form for this request, you’ll have to write and file your own request.

Felony Convictions

If you have no new cases pending and aren’t on parole or probation in any case, you can request the dismissal of your felony conviction. As is the case for misdemeanors, you must also ask for early probation termination under Penal Code Section 1203.3 if you’re still on probation in the case.

Here’s what you need to do to request dismissal of:

• Felony convictions with probation/county jail sentences. If you met the terms and conditions of your probation (or were granted early probation termination), the court is required to grant your petition. If you didn’t meet these terms, the court can decide whether or not to grant your petition. For “wobblers” (offenses that can be treated as a misdemeanor or a felony), you can also try to get your conviction lowered to a misdemeanor.
• Felony convictions with county jail sentences under Penal Code Section 1170(h)(5). Sentences including mandatory supervision can be dismissed a year after completion, though the court can decide whether or not it will grant these petitions. If your sentence didn’t include mandatory supervision, you’ll need to wait two years to start this process.
• Felony convictions with state prison sentences. Before Jan. 1, 2023, people who were convicted of felony offenses and served time in state prison were only able to request dismissal if a legal change made their offense punishable by county jail time (or if they were involved in an institutional firehouse/fire camp). From that date on, people who served time in state prison for a felony offense (that did not require them to register as a sex offender) can request dismissal two years after completing their sentence. The court will decide whether or not your request should be granted.

People who successfully participated in an institutional firehouse/fire camp program while doing time in county jail or state prison can also ask the court to dismiss some felony convictions under Penal Code Section 1203.4b.

Because each case is unique, eligibility for expungement or sealing can vary based on 

factors such as the offense, sentence type, and compliance with court orders. Consulting a qualified California expungement attorney is the best way to determine your options.

Work With a Top-Rated California Law Firm

The process of requesting expungement or sealing criminal records can get complicated, but you don’t have to do this alone. Working with a qualified expungement lawyer will make things much easier.

If you choose Cyrus Tabibnia from Tabibnia Law Firm for getting your record sealed or expunged, you’ll get 24/7 access to a legal team with 20+ years of experience. To reach out to Tabibnia Law Firm to determine your sealing eligibility, just call (866) 511-2659 or complete our online contact form.