New Law To Expand The Ability to Reduce A Felony To Misdemeanor Forthcoming?

Quick Note / Teaser - Spoke with attorney Mathew Higbee of RecordGone.com tonight and he said he is working with California law makers on a bill that will allow people convicted of non-violent felonies to reduce the felony to a misdemeanor if they do not serve a prison sentence.

To be eligible a person must be law abiding for five years after their sentence (DUI's may be excluded as disqualifying offenses) and they must convince a judge they are rehabilitated and deserving of the reduction.

 This would be a very positive thing for tens of thousands of Californians. There are countless people who are practically handicapped by the felony label that was applied to them many years ago. This law would be very welcome news for those looking to have their firearm rights restored.

The bill would would add a new chapter to Penal Code section 17.  It would not affect California expungement law (Penal Code 1203.4). 

Higbee had success in Sacramento with SB 530 last year. Hopefully, this bill, which packs more benefits will be just as successful. He said he will be tweeting about it soon and should have an article written about it in early January. Of course, I will write more if I hear more on this exciting news.

How to Expunge a Felony in Orange County, California

If you have a felony conviction on your criminal record in Orange County, California, you may be eligible to have your felony expunged. Before entering this complicated process, there are a few facts that you need to keep in mind about how to file the petition for the expungement such as where to file the petition, how long the process takes, the cost of filing fees, and what type of representation you will need.
Typically, a felony expungement takes two to four months from the time that the expungement petition is submitted to the court. The length of the expungement process, however, often varies depending on the time of the year and other factors such as the age of your case, the number of counts with which you have been charged, and if the District Attorney objects to your petition for the expungement. In Orange County, the expungement process can be expedited by utilizing different filing procedures.
How to File a Petition for Expungement
When you file the petition for the expungement, you will have to pay a filing fee, which for a felony expungement is usually $120.00; however, cost may vary depending on how many charges are being filed. Generally, you will file the petition for your expungement in the same court that oversaw the criminal case for your felony. You can call the court clerk for information regarding your case, or you can speak to an attorney who can research and access your case information. The information that you will need for your case is the name of your arresting agency, the date that you were arrested, your case number, and the date that the disposition was given.
Call the courthouse that has jurisdiction over your expungement. Here is a list of Superior courts in Orange County that you can call with questions regarding your case:

1. Harbor Justice Center
   4601 Jamboree Rd
   Newport Beach
   (657) 622-5400
2. North Justice Center
   1275 N Berkeley Ave
   Fullerton
   (714) 834-5400
3. Lamoreaux Justice Center
   341 The City Dr. S
   Orange
   (657) 622-6069
4. Central Justice Center
   700 Civic Center Drive West*
   Santa Ana
   (714) 449-8100

*The Superior Court of Santa Ana is the only court that oversees cases with felonies in Orange County.
It is highly advisable that you have an attorney represent you. By hiring an expungement attorney, you are making sure that someone who is knowledgeable in the Orange County expungement process guides you through the complicated felony expungement process from filing court documents accurately and on time, to representing you in court. While you always have the option to represent yourself, in doing so you may run the risk of not filing your documents accurately, which can causes your case to be prolonged or, even worse, result in a failed felony expungement petition.

Interesting Idea On Shutting Down Mugshot Extortion Sites

Websites that publish mugshots in hopes of having people to pay to remove their mugshot have garnered a lot of attention lately— all of it bad, and rightfully so.  The good news is that the operators of these sites are feeling the squeeze.

It started with a New York Times article by on October 5.  The article drew the attention of Google, who responded by taking the extraordinary step of adjusting its search engine algorithm to specifically punish these parasitic sites.   As a result, traffic supplied to these sites by Google dropped an estimated 90%.  Search results that used to produce a mugshot page for a person on page one are now putting mugshot pages in search engine oblivion— page 10 or higher.  If the pages are not seen, well, then why would someone pay to have the page removed.  Good question.  I hope the answer is that they don't.

The next result from the article was a crackdown by the credit card companies.  Mastercard led the charge by revoking the right to accept Mastercard from anyone who they found charging people to remove mugshots.  A representative at Wells Fargo's fraud division said that they were taking swift action to revoke merchant card services agreements with anyone who had a business model centered on mugshot publishing or removal. 

Web sites like Mugshots.com started to squeal.   First, they claimed that they were doing a public service designed to protect society.   A claim that rang totally hollow in light of the fact that mugshots.com still charges a person to remove a mugshot when the case has been dismissed or expunged.   Then Mugshots.com wined about "search neutrality"— a term that implies that search engines like Google should not let their values be reflected in search results.  Well, Google and any other free thinker did not buy the argument— after all, Google is a private company whose business is centered on providing search results that they think are relevant to its user. What Google does with its algorithm is its own business.

Another interesting article that followed was published by the Santa Ana, CA based law firm of Higbee & Associates.  The article labeled these sites as mugshot extortion sites and made a good case for it based on state law in Florida and Arizona.   The article then went on to make a good case as to why the sites are vulnerable to prosecution, both in civil and criminal court, for violations of RICO, the Racketeer Influenced and Corrupt Organizations Act.  Already ongoing legal actions against mugshot sites has been in civil court and centered on privacy and rights of publicity.   However, RICO carries more teeth as a civil case and easily be converted to a criminal case by any enterprising or ambitious attorney general.

 

Expunging Criminal Records And Driving Records

In the United States, criminal records can be expunged or sealed, but laws vary by state. Many different types of offenses, anything ranging from parking fines to felonies, may be eligible to be expunged.  Each state sets its own guidelines for what records are eligible for record clearing relief or for whether any such relief is available at all.

In general, once sealed or expunged, all records of an arrest and the subsequent court case are removed from the public record.  Most laws allow for the individual to legally deny ever having been arrested for or charged with any crime that has been expunged.  Some jurisdictions allow for records to be expunged, which means the record is completely destroyed, and some states provide for a record sealing, which just seals the record from the public view but does not completely destroy the records.

Each state sets its own requirements that an individual must meet in order to have their criminal record expunged or sealed. The petitioner will have to complete the forms and follow all the other instructions when submitting the petition to the appropriate authority, often a county court. The petitioner may choose to hire an attorney to guide him or her through the process, or he or she can decide to represent him or herself.

One of the major ways that expungement laws differ among states is in the way that driving offenses are handled.  Driving related offenses are quite often considered very minor, and in many instances driving violations are not even considered a criminal offense. Because of this, many states do not allocate resources to the processing and deciding of record clearing relief for traffic offenses; in these states driving offenses are simply ineligible to be sealed or expunged.

Some states, such as NewJersey and Michigan, do not offer the option to expunge or seal any traffic or driving offense. Sometimes they are simply not provided for in the expungement law, because the offenses are not included in the criminal code but rather are contained within a separate vehicle code. 

In other states, certain driving violations are considered criminal offenses, and these offenses are graded like all other crimes, such as being classified as either a misdemeanor or felony.  These more serious driving offenses can result in the same collateral consequences as any other criminal prosecution or conviction, such as difficulties in securing employment and housing.  And while some jurisdictions still do not provide for expungement or sealing, in many states, these misdemeanor or felony convictions for driving offenses are eligible to be sealed or expunged just like any other criminal record. 

Some serious driving offenses are “Driving Under the Influence” (DUI) or “Hit and Run” violations.  These serious driving offenses are often considered criminal in nature, and therefore, in many states, assuming other eligibility criteria are met, the arrest or conviction of these offenses can be expunged or sealed by the court like any other criminal offense.  

Expungement Benefits and Requirements Vary By State

Typically, when an expungement is granted, all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency relating to a person's detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system will be destroyed.  However, for driving offenses, the former offender cannot necessarily be fully confident moving forward, because the offense will not have been removed from every place that records are maintained.  

Even in jurisdictions that permit driving offenses to be sealed or expunged, the defendant is not able to completely remove all traces of the case, because a criminal record expungement or record sealing does not affect the defendant’s driving record. The expungement process is handled through the court, and it only seals or expunges the records held by the court and other criminal justice agencies; the state DMV or equivalent state agency is generally not required to comply with an expungement or sealing order from the court.

Driving offenses will remain on an individual’s driving record, which is maintained through the state’s Department of Motor Vehicles (DMV) or the equivalent division in each state. A violation on the driving record, unlike on the criminal record, cannot typically be expunged or sealed.  However, unlike your criminal record that does not disappear automatically, a driving offense will usually come off of the driving record after a specified number of years.  Generally entries will be removed after 5 or 10 years; however very serious violations can remain on the driving record for even longer.

Trends In Expungement Laws

The broadening of the availability of expungement in states all a cross the country during the past 4 years has revealed interesting things about the politics of expungement and laws that pertain to the maintenance and distribution of criminal records.   Examining the trends reveals positive news for those who favor the expansion of expungement laws.

There have been about 20 expansions of expungement related laws during the past 4 years.  Geographically, the changes have been spread almost equally throughout each region (the Pacific Time Zone has had the fewest laws enacted).

Expungement has typically been championed by groups that work with former offenders and liberal coalitions.  When expungement laws are opposed, they are typically opposed by law enforcement.   Accordingly, one would think that Democrat lawmakers would be the ones sponsoring and enacting expungement laws and that Republicans would be the ones opposing expungement laws.  

It turns out that the opposite is true.

What is most notable is that most of the states that have expanded expungment laws were states that were governed by Republican legislators and governors.  Even more notable is that states with what some would call the most liberal expungement laws are typically considered very conservative states, such as Utah.

According to the Foundation for Continuing Justice, a non-profit foundation that tracks expungement related laws, 19 states have passed expungement laws in the past 4 years, and 10 of them were passed and enacted in states that had Republican controlled legislatures and Republican governors.  In contrast, there were only five bills passed in enacted in states with Democrat controlled legislatures and governors.  The other four laws were enacted in states where there was a split in political power between the party controlling the legislature and the party of the governor. 

So why are Republican lawmakers passing bills that are supported by liberal coalitions?  The answer is simple said a legislative assistant (who asked to be nameless) Salt Lake City, Utah.  “Democrats have deathly fear of appearing soft on crime and they think that supporting expungement laws will make the susceptible attacks of helping criminals,” she said.  “They are quick to vote for the laws, but they are slow to sponsor them.”

That is not always the case.  Some Democrats are fighting for criminal record expungement laws in states where Democrats are in the minority.   The Pennsylvania just passed an expungement bill that greatly expands expungement.  It was sponsored by Senator Tim Solobay and passed in committee and the full Senate without a single vote against it. The bill even had support from law enforcement leaders.

The good news is that the one trend that is dominating is that access to expungement is increasing.  There hasn’t been a bill that reduces expungement in at least the past 6 years.  

Interview with Record Clearing Activist Sarah Stein

Sarah Stein is well known in the community of people who work with former offenders. While she is based in Las Vegas, Nevada she can been all over the western United States and her impact is felt all over the country.   Ms. Stein has written extensively about expungement and other forms of post-conviction relief.  She recently provided behind the scenes guidance on expungement reform in California.

JA - Thank you for answering a few questions and sharing your insight with me and my readers.   Tell me about the research you are working on right now.

SS - You are very welcome.  It is always a pleasure to talk with you.  A big part of what I do is advocate for changes in the area of post-conviction relief.   I have never had a problem making arguments in favor of reform.  However, those arguments were always based on common-sense or basic notions of fairness.  I really wanted statistical evidence to validate our assertions that good expungement laws reduce crime and save taxpayers money by reducing the costs of the criminal justice system and other social welfare programs.

JA - Let me interrupt you there.  Has anyone every questioned the validity of the assertion that expungement laws can save taxpayer's money and reduce crime?

SS - Nobody has ever posed the question with skepticism that it achives those goals, but I have had plenty of people ask about the extent of potential savings.  Which is a fair question and one that I want to be able to answer.  That is why we are starting this research project.

JA - What do you hope to do with the research?

SS - Well, I am sure we will write about it like crazy, no matter what the outcome is.  My goal is, first and foremost, is to conduct a good study.  I am not setting out to prove a hypothesis.  I want this to be as scientific as possible and a valid as possible.  If the data shows, what I suspect it will show, I think it will help lawmakers make decisions about how many resources to allocate towards providing expungement programs.  It would help them make good decisions if they can see the return on investment.

JA - From what I hear, you helped behind the scenes with recent changes to California's laws that were made by SB 530.

SS - Yes, but it was a very small role.  Mat Higbee came to me a few times and sought-out advise on lobbying for passage of the bill and for feedback on some of the language he was drafting.  But, I know that I am just one of many that he worked with.  In the end, it is Senator Wright and his staff that really deserve the credit.  I am sure Mat can tell you more about the process and what is going to happen next.  I know they are still fighting and that there is much more that he wants to do in California. I think expanding felony reduction is the priority right now.

JA - Are you active in the legislative process in other states?

SS - I haven't been for the past couple of years.  Lobbying is best done face-to-face and I haven't been able to travel much the past two years because of my commitments in Las Vegas.  However, I miss it, and it is an exciting time with so many states expanding their expungement laws.  There are some good opportunities to make excellent public policy.  Even Florida is considering expanding it's Florida expungement law.   I am enjoying see the positive changes all across the country.

JA - Thank you again Sarah. Where can people read you study when it is done?

SS - I am hoping the New York Times.   But I am not holding my breath.  Either way, it can be found on my site Nevada-Expungement.com

Expungement Videos Coming Soon

Well, I just received something akin to a grant to produce videos about expungement laws in several states.  This is very exciting.  Not only to get I get to buy a bunch of fun gadgets and gizmos, I get to learn about making videos.  

Not just video, helpful videos that are designed to educate people on a wide range of topics about clearing felony and misdemeanor criminal records.   So, not only do I have to learn about video production, I have to make sure that my scripts and graphics are legally relevant.  I will be expanding out of my expertise, which really is California, and Los Angeles in particular.

I am interested to hear what topics people are interested in learning about.  Here is the list I have received from people at the center and on some of my other sites and boards.  I have broken down the topic by state.

ARIZONA EXPUNGEMENT TOPICS

Does Arizona Allow For Expungement of Criminal Records -  This is a great topic because of all of the confusion that centers around the terms vacate, set-aside and expunge, not to mention the bad advise given by the well meaning employees at the courts.  I imagine this video will be about 8 minutes.  I might do one especially for Phoenix or Maricopa County.

Can Arizona Restore Firearm Rights from Federal Conviction – This topic will take some research.  I have been getting conflicting information.  My friends at RecordGone.com say it is possible, but I have had a few people who disagree.  The last thing I want to do is make a video with bad information.

TEXAS EXPUNGEMENT TOPICS

Can I Expunge My Arrest Record – This is a pretty straightforward topic, but from what I am hearing, nothing is too straight forward with Texas expungement (or expunction as they call it) law.   It is ironic that such straight shooting people can make something like expungement complicated.    This should be about 10 minutes.   Supposedly the procedures really differ by county so an expungement in Dallas Texas video or other regions, like Houston and San Antonio might be need. 

What Is An Order of Non-Disclosure – This is another one designed to clarify the mud.   The people call it record sealing, the statute calls it an order of non-disclosure, and the courts call it both.   Either way, it is a powerful option for people with a felony or misdemeanor that resulted in deferred adjudication.   Not all offenses are eligible, but most are.  

This is just a small is of criminal record clearing topics.  I have budget to do about 40 and cover about 8 states— maybe 10.  Please feel free to post suggested topics here or on any of my other sites or my Google plus sites.  Here is a classic California expungement video.