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Marijuana Arrest (CRIMINAL LAW & PROCEDURE)

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• Tue, 06 Jun 2000 18:34:00 GMT(1)

• quote:

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  Originally posted by zolf:
  I was apprehended about a year and a half ago in NJ for possession of a small amount of weed. I was ordered to pay a fine, costs and one year probation. Since I have no other criminal record, can I get this expunged?

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  My response:
  The following is California law, which may be very similar to New Jersey law. Read the following for educational purposes only, and then see an attorney for specific rules, laws, and procedures in your State.
  What is Criminal Record Expungement?
  Expungement encompasses a number of processes that provide varying degrees of relief from the adverse effects of an arrest or conviction, including relief from inaccurate or incomplete arrest records or the dissemination and use of arrest records outside the criminal justice system to deny the former arrestee business or professional licensing, employment, or similar opportunities for personal advancement. The relief sought may include a general release from penalties and disabilities resulting from the criminal record, sealing the record from public view, or the actual destruction of the record.
  Some statutes governing expungement result in dismissal of the accusatory pleading against the defendant and release him or her from all penalties and disabilities resulting from the criminal record. However, in actual practice, the effects of a dismissal and release are often severely restricted. Often, they are limited to reinstitution of voting rights, relief from criminal registration statutes, or relief from impeachment, except when testifying as a criminal defendant.
  Many expungement statutes offer a broader scope of relief for a relatively narrow class of people. They provide for the sealing of a person's criminal records from the public and, in two cases, provide for both the sealing and the later destruction of the records. In addition, under the California Criminal Record Purge Program, the California Department of Justice voluntarily destroys criminal records in its files after they have been retained for requisite periods of time.
  Qualification for Expungement
  Under Penal Code Section 1203.4, a person must be released from penalties and disabilities resulting from conviction in any case in which the person has been granted and successfully completed probation, by either fulfilling the conditions of probation for the entire period, which includes specifically the full payment of restitution or fines imposed as a condition of probation, or being discharged before the end of the probation period. The court has discretion to do so in the interests of justice in other probation cases. The court does not have discretion to do so if the defendant served a sentence in prison on a felony conviction, or if the defendant was found not guilty by reason of insanity.
  An applicant is not eligible for expungement if he or she is serving a sentence or is on probation for any offense, or if he or she is charged with the commission of a crime. Certain sex offenses, certain misdemeanor provisions of the Vehicle Code, and infractions are exempt from this rule. The burden is on the applicant to prove that the probation requirements have been fulfilled, unless he or she has previously been relieved from probation restrictions.
  Procedure
  The person must be informed in his or her probation papers of the right of release, and of the right to petition for a certificate of rehabilitation and pardon. . . . The petitioner must be allowed to withdraw any plea of guilty or nolo contendere, or a guilty verdict must be set aside at any time after probation ends. The court must dismiss the accusations or information against the petitioner and release him or her from all but certain penalties or disabilities resulting from the underlying offense.
  The petitioner may be required to reimburse the county and city for the actual cost of services rendered, whether or not the petition is granted and the records sealed or expunged, up to $120. Ability to pay will be determined by the court using the standards of Penal Code Section 987.8(g)(2), and is not a prerequisite to eligibility for the requested relief.
  Effect of Release From Penalties and Disabilities
  The relief offered by a release from penalties and disabilities is limited to immunity from impeachment in a subsequent action, and the reinstitution of voting rights, the right to inform people that the conviction was dismissed, and probably the right to avoid impeachment in court as a witness (except a defendant-witness). Other consequences of conviction are not avoided when the person is released from penalties and disabilities of the offense. The person:
  (1) Cannot have his or her record sealed nor make it unavailable to the public; (2) May have a prior conviction pleaded and proved if he or she subsequently is prosecuted for another crime, including in a subsequent "Three Strikes" prosecution; (3) May not possess or own or have under his or her custody or control any firearm; (4) Must disclose the conviction in response to any direct question in a questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery; (5) May be subject to:
  (a) Disbarment;
  (b) Revocation of business and professional licenses;
  (c) Suspension of a medical license by the Board of Medical Examiners;
  (d) Suspension of a teaching credential by the State Board of Education;
  (e) Registration requirements;
  (f) Deportation; and
  (g) Revocation, suspension, or limitation on the use of the person's driver's license after two or more Vehicle Code convictions.
  Misdemeanants Not Granted Probation
  Under Penal Code Section 1203.4a, every misdemeanant must be released from penalties and disabilities of an offense when, for one year from the date judgment is pronounced, he or she has fully complied with and performed the sentence, lived an honest and upright life, and conformed to and obeyed the law. The court must release the person even if he or she has committed a new crime after the one-year period. However, the person may not be serving a sentence for any other offense nor be charged with a new offense. Although no specific case law has arisen on the issue, it is probable that the petitioner has the burden of proving the required qualifications for expungement.
  The defendant must be informed of the provisions allowing release at the time of sentence, either orally or in writing. The procedure is the same as that under Penal Code Section 1203.4: the plea or verdict is set aside, the case is dismissed, and the defendant is released from all penalties and disabilities of the offense.
  Under Penal Code Section 1203.4a, a misdemeanant is not allowed to petition for a certificate of rehabilitation as is allowed under Penal Code Section 1203.4. Although this prohibition has been found to deny misdemeanants equal protection of the law, the statute has not been directly invalidated.
  The effect of a release from the penalties and disabilities of a misdemeanor conviction is not entirely clear. Arguably, the effects are similar to those that occur with a release from conviction when the person has been granted probation because the two statutes are similarly worded. Furthermore, courts have made no attempt to distinguish the Penal Code statutes as they have Welfare and Institutions Code Sections 1179 and 1772, and instead have interpreted the statutes together. However, one apparent difference between the two Penal Code statutes is that a misdemeanant whose record has been expunged under Penal Code Section 1203.4 is prohibited from thereafter possessing or owning a firearm, 41 while a misdemeanant whose record has been expunged under Penal Code Section 1203.4a may possess or own a firearm except if the expungement is of a conviction for a violent offense.
  IAAL
  
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