If I Violated My Probation, Can I Get an Expungement?

Previously, courts generally automatically denied expungement in a case where a probation violation occurred. However, since People v. McLernon, 174 Cal. App. 4Th 569 (2009), courts must now consider all facts, including post probation conduct by a person seeking expungement:

“Indeed, the amendment was requested by the attorney for a defendant who, after a probation violation, completed his probation with no further violations, raised his child alone, and then went to college, worked without pay for the State Parole Board, and was trying to become a social worker. Although the trial court in his case expressed a desire to grant relief under section 1203.4, it concluded it could not do so because of the defendant's ... violation. The amendment to section 1203.4 was designed to give courts the ability to grant relief in these circumstances. Thus, in determining whether to grant relief under the discretionary provision, the trial court may consider any relevant information, including the defendant's post-probation conduct.”

This means that even if you violated your probation (unless you were sent to state prison as a result of the violation), you may still be able to expunge your case. Each case is different and depends upon the facts, and the Judge still has discretion to deny the expungement, but we have been very successful in getting positive results in many cases with probation violations.

Does CA Expungement Reinstate Firearms Rights?

The short answer is "No", but...

Firearms ownership and criminal convictions are intertwined, and complex. An expungement does not reinstate your firearms rights, and PC 1203.4 states: "... does not permit a person to own, possess, or have in his or her custody or control any firearm...".

HOWEVER, you must already be in a prohibited category- there is a lot of confusion regarding this language and a number of my clients have asked about this. To lose your firearms rights in California, there are three categories:

1. Temporary Loss: Be convicted of a section of the Penal Code described in section 29805. This includes a laundry list of misdemeanor offenses such as battery, simple assault, etc. Note this is a 10 year ban, and NOT permanent. It is a highly technical section and needs to be viewed with legal help in most cases.
2. Felony Conviction: If convicted of a felony, you lose the right to possess a firearm for life. HOWEVER, if the felony is a wobbler, and can be reduced to a misdemeanor, such reduction then allows firearms possession, as the conviction status becomes a misdemeanor "for all purposes" under 17b PC.
3. Misdemeanor Domestic Violence: If convicted of misdemeanor domestic violence, you are prohibited from firearms possession for life under Federal law. This is the The Lautenberg Act, added several years ago by the US Congress to attempt to stem domestic violence cases.

Please be aware this area of the law is highly complex and technical, and anyone questioning their legal right to own or possess a firearm must consult a knowledgeable attorney. The good news is that there are some was to reinstate firearms rights, even in California- not known to be particularly friendly to 2nd Amendment issues.

Ban the Box in California

Commonly called "Ban the Box" is the Fair Chance Act in California:

The Fair Chance Act, which went into effect on January 1, 2018, is a California law that generally prohibits employers of more than 5 employees from asking about your conviction history before making you a job offer. This type of law is also known as a “Ban the Box” law.

The law generally prohibits employers from:

• Including on a job application any questions about conviction history before a conditional job offer has been made
• Asking about or considering your criminal history before a conditional job offer has been made
• Considering information about arrests not followed by conviction, participation in pretrial or post-trial diversion programs, or convictions that have been sealed, dismissed, expunged, or statutorily eradicated
• After offering you a job, employers are allowed to conduct a criminal history check, but the law requires an individualized assessment about your conviction history. That means that an employer can't take back the job offer without considering the nature and gravity of the criminal history, the time that has passed since the conviction, and the nature of the job you are seeking. If the employer decides to take back the job offer based on your criminal history, they must tell you so in writing, provide a copy of any conviction history report they relied on, and give you at least five business days to respond.

Please note the part about "convictions that have been sealed, dismissed, expunged, or statutorily eradicated". A California expungement under 1203.4 of the Penal Code meets the test- the case Cannot be used against you if expunged. If NOT expunged, you can still be denied the job. 


A very good reason to expunge even a minor criminal offense.