Many people believe that once a criminal record is expunged, it completely disappears from all background checks. However, while expungement offers significant relief from the consequences of a conviction, it is essential to understand the limitations and instances where expunged records can still appear in certain background checks. This article will discuss when and how an expunged record might show up, the limitations of expungement, and how the law protects individuals with expunged records in California.

What is Expungement?

Expungement, as outlined in California Penal Code § 1203.4, is a legal process by which a criminal conviction is either dismissed or set aside after an individual has successfully completed probation or served their sentence. Expungement allows individuals to legally state that they have not been convicted in most instances, such as job applications, housing applications, and public-facing background checks.

However, expungement does not entirely erase the conviction from all records, and it does not offer total anonymity from all types of background checks. Understanding where expunged records might still be accessible is crucial to avoid surprises when undergoing thorough background checks.

Does Expungement Remove All Traces of a Criminal Record?

While expungement in California provides substantial relief, it does not completely eliminate all traces of the criminal record. Expunged records are essentially updated to reflect that the case has been dismissed or set aside. This means that in some situations, the conviction will still be visible, but it will show as dismissed rather than active.

The dismissal removes the legal penalties associated with the conviction, but it does not completely erase the record of the arrest or charge. Furthermore, certain entities may still have access to the original conviction information, even after expungement.

When Can an Expunged Record Still Show Up on a Background Check?

Expunged records may still appear in some specific background checks, depending on the type of check being conducted and the entity performing it. Here are the most common circumstances where an expunged record might still be accessible:

1. Government Jobs or Licensing Boards: If you are applying for a government job, law enforcement position, or professional license (such as a nursing license, legal practice, or real estate license), the expunged conviction will still be visible. You are required to disclose the expunged conviction when applying for these roles, as background checks performed by government agencies and professional licensing boards are more thorough and have access to sealed and expunged records.
2. Immigration Applications: Expunged records can still be considered by federal agencies during immigration-related background checks. This includes applying for visas, green cards, or naturalization. Expungement under California law does not prevent federal immigration authorities from accessing the original conviction information, as federal law often takes precedence over state law in immigration matters.
3. Certain Federal Background Checks: Federal background checks, such as those conducted for security clearances, can also reveal expunged records. These checks typically involve deep investigation, and federal agencies retain access to criminal records, even if expunged at the state level.
4. Repeat Offender Situations: If you are arrested or convicted of another crime, the court can access your expunged record to consider it for sentencing purposes. For example, in cases of subsequent DUI arrests or convictions, an expunged DUI can still be counted as a prior conviction, which can result in enhanced penalties.
5. DMV and Driving Records: Expungement does not affect your DMV record. If your conviction was related to a driving offense, such as DUI, the conviction remains on your driving record, which may be accessed by insurance companies or other entities that request your driving history.

Who Cannot Access Expunged Records?

While certain entities can still access expunged records, many private employers and companies conducting routine background checks cannot see or consider expunged convictions. Under California law, once a record is expunged, it is illegal for most private employers to ask about or deny employment based on the expunged conviction. The same protections generally apply to housing applications and other non-government background checks.

Additionally, companies that perform background checks using public databases will typically not find expunged records. Once a record is expunged, it is removed from most public databases, ensuring that it won’t show up during standard employment or rental background screenings.

Legal Protections for Individuals with Expunged Records

In California, California Labor Code § 432.7 provides significant protection for individuals with expunged records. This statute prohibits employers from asking about or considering arrests or detentions that did not result in a conviction, as well as convictions that have been expunged. If an employer asks about an expunged record, you are not legally required to disclose it, and they cannot legally deny you employment based on an expunged conviction.

Violating this law can result in serious consequences for employers, including civil penalties, and can provide grounds for a discrimination lawsuit if you are denied a job because of an expunged conviction.

The Process of Expunging a Record

To ensure that your conviction is expunged properly, it is critical to go through the formal legal process under California Penal Code § 1203.4. Here are the basic steps involved:

1. Eligibility: Determine whether you are eligible for expungement by reviewing your conviction, probation status, and completion of all sentence requirements.
2. Filing a Petition: A petition must be filed in the court where the conviction occurred, requesting the expungement. The court will review whether you have fulfilled the necessary conditions, such as completing probation or paying fines.
3. Court Hearing: In some cases, the court may schedule a hearing to determine whether to grant the expungement. If the petition is uncontested, the court may grant it without a hearing.
4. Judge’s Decision: If the court grants the expungement, the record is updated to reflect the dismissal of the conviction. From this point forward, you can legally state that you have not been convicted in most situations.

Conclusion

While expungement offers a valuable path toward clearing your criminal record, it’s essential to recognize its limitations. Expunged records can still appear in certain background checks, particularly those conducted by government agencies, professional licensing boards, and federal authorities. For most private employment and housing situations, however, expunged records are not accessible and do not need to be disclosed.

Understanding when and how your expunged record may still be visible can help you navigate your rights and obligations when applying for jobs, licenses, or other opportunities. Consulting with an experienced expungement attorney ensures that the process is handled correctly and that you can make the most of the legal protections available to you.

Citations

• California Penal Code § 1203.4
• California Labor Code § 432.7
• California DMV Code (pertaining to driving records)