The question of how to restore firearm rights after a domestic violence conviction is easily one of the top five questions received by any attorney who practices post-conviction relief.
I published a comprehensive memo on analyzing a misdemeanor DV case under the federal law at the domestic violence expungement web site http://www.expungedomesticviolence.com
Please feel free to email me any questions or post them here.
Wednesday, January 28, 2009
Monday, January 26, 2009
Oklahoma May Expand Expungement Law
Sen. Connie Johnson, D-Oklahoma City is sponsoring the expungement bill that would make some violent felons eligible to have their convictions expunged from court records. More on this soon. Please comment if you know anything about it.
Common Question: Should I Expunge All My UT Convictions Now
Background: The state of Utah has a powerful expungement law that provides more benefits than the expungement laws of most other states. However, the Utah law was poorly written, is contradictory, and is not interpreted consistently by the courts or the agency in charge of making the preliminary determination of eligibility (Bureau of Criminal Identification - BCI).
For example, the law makes the waiting period for someone with a two class A misdemeanor cases longer than for someone with a felony case and class A misdemeanor. Also, if you expunge a felony conviction, you cannot later expunge misdemeanor convictions.
The question above often arises when someone is eligible to have a case expunged but is confronted with the choice of waiting to expunge cases for which they are not yet eligible or cannot afford to pay for at the time.
Here is a hpyothetical for illustration purposes:
Bill Gore was convicted of a class 3 felony violation in Utah in 1983. Mr. Gore is eligible to have this conviction expunged.
Bill Gore was also convicted of a Class B misdemeanor in 2007. Mr. Gore will is not eligible to have this conviction expunged.
Mr. Gore has the following options:
Option 1. Expunge the felony now. Pros: Felony is off of the record. Cons: Never be able to expunge another offense in Utah because 77-18-12 (c) says "the petitioner has previously obtained expungement in any jurisdiction of a crime which would be classified as a felony in Utah;"
Option 2. Wait 3 years from the date of completion on the class B misdemeanor and expunge both convictions. Pros. Mr. Gore will have a totally clean record. Cons: Mr. Gore will have to be a felon for at least 3 more years (assuming the law does not change and make it longer).
Option 3. Reduce the felony to a class A misdemeanor and reduce the class B misdemeanor to a class C misdemeanor and expunge the entire record 3 years after completing the sentence on the 2007 case. Pros: Will leave Mr. Gore with a completely clean record and allows him to get the felony off of his record immediately. Cons: Reducing the two cases will cost more time or money and he will have two convictions on his record until he becomes eligible for expungement on the 2007.
Though not addressed in this hypothetical further complications can arise if the client has already received misdemeanor expungements. 77-18-12.(d) renders a person ineligible for expungement if "the petitioner has previously obtained expungement in any jurisdiction of two or more convictions which would be classified as misdemeanors in Utah unless the convictions would be classified as class B or class C misdemeanors in Utah and 15 years have passed since these misdemeanor convictions."
The best option will really depend on the needs of Mr. Gore, and possibly predictions about the the future of Utah's expungement law, which should be changed to fix the inconsistencies and contradictory policies.
So, while this answer is not really an answer, it should make one thing clear: anyone with multiple convictions who is considering expungement in Utah should work with an attorney who is experienced in expungement law.
-Mathew Higbee
For example, the law makes the waiting period for someone with a two class A misdemeanor cases longer than for someone with a felony case and class A misdemeanor. Also, if you expunge a felony conviction, you cannot later expunge misdemeanor convictions.
The question above often arises when someone is eligible to have a case expunged but is confronted with the choice of waiting to expunge cases for which they are not yet eligible or cannot afford to pay for at the time.
Here is a hpyothetical for illustration purposes:
Bill Gore was convicted of a class 3 felony violation in Utah in 1983. Mr. Gore is eligible to have this conviction expunged.
Bill Gore was also convicted of a Class B misdemeanor in 2007. Mr. Gore will is not eligible to have this conviction expunged.
Mr. Gore has the following options:
Option 1. Expunge the felony now. Pros: Felony is off of the record. Cons: Never be able to expunge another offense in Utah because 77-18-12 (c) says "the petitioner has previously obtained expungement in any jurisdiction of a crime which would be classified as a felony in Utah;"
Option 2. Wait 3 years from the date of completion on the class B misdemeanor and expunge both convictions. Pros. Mr. Gore will have a totally clean record. Cons: Mr. Gore will have to be a felon for at least 3 more years (assuming the law does not change and make it longer).
Option 3. Reduce the felony to a class A misdemeanor and reduce the class B misdemeanor to a class C misdemeanor and expunge the entire record 3 years after completing the sentence on the 2007 case. Pros: Will leave Mr. Gore with a completely clean record and allows him to get the felony off of his record immediately. Cons: Reducing the two cases will cost more time or money and he will have two convictions on his record until he becomes eligible for expungement on the 2007.
Though not addressed in this hypothetical further complications can arise if the client has already received misdemeanor expungements. 77-18-12.(d) renders a person ineligible for expungement if "the petitioner has previously obtained expungement in any jurisdiction of two or more convictions which would be classified as misdemeanors in Utah unless the convictions would be classified as class B or class C misdemeanors in Utah and 15 years have passed since these misdemeanor convictions."
The best option will really depend on the needs of Mr. Gore, and possibly predictions about the the future of Utah's expungement law, which should be changed to fix the inconsistencies and contradictory policies.
So, while this answer is not really an answer, it should make one thing clear: anyone with multiple convictions who is considering expungement in Utah should work with an attorney who is experienced in expungement law.
-Mathew Higbee
Wednesday, January 14, 2009
Common Question: Can I Expunge An Infraction In California?
IMPORTANT UPDATE:
Effective on January 1, 2011, California will allow expungement of infractions 1 year after the person was sentenced. To have you infraction expunged, please The Law Firm of Higbee & Associates (RecordGone.com) at 877-573-7273. Higbee & Associates charges $595 for infraction expungement and offers a money back guarantee.
Common Question: Can I Expunge An Infraction In California?
Answer: No, unless it is an exceptionally rare case where the court charges an offense as an infraction in a case that also contains a misdemeanor or felony conviction that is eligible for expungement.
Analysis: California's expungement law is Penal Code section 1203.4. Subsection (b) states that an infraction is not eligible for relief under 1203.4. However, if the conviction contains a conviction that is eligible, the infraction can be dismissed (expunged) along with the rest of the case. Otherwise, if the conviction is just for an infraction, it can never be expunged under existing law. This is a rule of judicial economy. The legislature has continued to take the position that infraction is such an insignificant class of offense that it is not worth court resources to expunge the offense.
IMPORTANT UPDATE:
Effective on January 1, 2011, California will allow expungement of infractions 1 year after the person was sentenced. To have you infraction expunged, please The Law Firm of Higbee & Associates (RecordGone.com) at 877-573-7273. Higbee & Associates charges $595 for infraction expungement and offers a money back guarantee.
Effective on January 1, 2011, California will allow expungement of infractions 1 year after the person was sentenced. To have you infraction expunged, please The Law Firm of Higbee & Associates (RecordGone.com) at 877-573-7273. Higbee & Associates charges $595 for infraction expungement and offers a money back guarantee.
Common Question: Can I Expunge An Infraction In California?
Answer: No, unless it is an exceptionally rare case where the court charges an offense as an infraction in a case that also contains a misdemeanor or felony conviction that is eligible for expungement.
Analysis: California's expungement law is Penal Code section 1203.4. Subsection (b) states that an infraction is not eligible for relief under 1203.4. However, if the conviction contains a conviction that is eligible, the infraction can be dismissed (expunged) along with the rest of the case. Otherwise, if the conviction is just for an infraction, it can never be expunged under existing law. This is a rule of judicial economy. The legislature has continued to take the position that infraction is such an insignificant class of offense that it is not worth court resources to expunge the offense.
IMPORTANT UPDATE:
Effective on January 1, 2011, California will allow expungement of infractions 1 year after the person was sentenced. To have you infraction expunged, please The Law Firm of Higbee & Associates (RecordGone.com) at 877-573-7273. Higbee & Associates charges $595 for infraction expungement and offers a money back guarantee.
Monday, January 12, 2009
Common Question: Can I Expunge A Texas Conviction After I Have It Set Aside
Common Question: Can I Expunge A Texas Felony Conviction After I Have It Set Aside
Quick Answer: No (However, we MAY be able to expunge a class C misdemeanor that has been set aside.)
Background: Many people who do not qualify for expungement or an order of non-disclosure in Texas seek relief through Tex. Code Crim. Pro. Art. 42.12 § 20. This section allows people who were convicted and successfully complete their probation to have their conviction set-aside. The law says a judge "the judge may set aside the verdict or permit the defendant to withdraw the defendant's plea, and shall dismiss the accusation, complaint, information or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which the defendant has been convicted or to which the defendant has pleaded guilty."
This remedy is a great benefit, but it, in many cases, still leaves a record of the arrest and the court case. Many people who have had their felony case set-aside wish to take it a step further and have the case expunged through Code of Criminal Procedure chapter 55.
Chapter 55 allows "a person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged." The first prong of the eligibility test for Chapter 55 requires that: "an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed." Setting aside the conviction arguably meets this requirement.
However, the setting aside fails to meet a later requirement in Chapter 55 that says "the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor.
The requirement that it be a Class C misdemeanor severely limits the ability to expunge convictions that have been set-aside.
The good news is that setting aside a conviction restores all rights and allows a person to say they do not have a conviction as a result of the case. This benefit greatly exceeds the benefits of expungement laws in many other states.
-Mathew Higbee
Quick Answer: No (However, we MAY be able to expunge a class C misdemeanor that has been set aside.)
Background: Many people who do not qualify for expungement or an order of non-disclosure in Texas seek relief through Tex. Code Crim. Pro. Art. 42.12 § 20. This section allows people who were convicted and successfully complete their probation to have their conviction set-aside. The law says a judge "the judge may set aside the verdict or permit the defendant to withdraw the defendant's plea, and shall dismiss the accusation, complaint, information or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which the defendant has been convicted or to which the defendant has pleaded guilty."
This remedy is a great benefit, but it, in many cases, still leaves a record of the arrest and the court case. Many people who have had their felony case set-aside wish to take it a step further and have the case expunged through Code of Criminal Procedure chapter 55.
Chapter 55 allows "a person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged." The first prong of the eligibility test for Chapter 55 requires that: "an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed." Setting aside the conviction arguably meets this requirement.
However, the setting aside fails to meet a later requirement in Chapter 55 that says "the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor.
The requirement that it be a Class C misdemeanor severely limits the ability to expunge convictions that have been set-aside.
The good news is that setting aside a conviction restores all rights and allows a person to say they do not have a conviction as a result of the case. This benefit greatly exceeds the benefits of expungement laws in many other states.
-Mathew Higbee
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