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Expunge Infractions In California

2010-12-22T17:00:00.000-08:00

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.

Expungement of infractions will be done pursuant to the recently modified Penal Code 1203.4a.

Revised 1203.4a Effective 1/1/2011 allows for expungement of infractions:

(a) Every defendant convicted of a misdemeanor and not granted probation, and every defendant convicted of an infraction, shall, at any time after the lapse of one year from the date of pronouncement of judgment, if he or she has fully complied with and performed the sentence of the court, is not then serving a sentence for any offense and is not under charge of commission of any crime and has, since the pronouncement of judgment, lived an honest and up-right life and has conformed to and obeyed the laws of the land, be permitted by the court to withdraw his or her plea of guilty or nolo contendere and enter a plea of not guilty; or if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and in either case the court shall thereupon dismiss the accu-satory pleading against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 12021.1 of this code or Sec-tion 13555 of the Vehicle Code. The defendant shall be informed of the provisions of this section, either orally or in writing, at the time he or she is sentenced. The defendant may make an application and change of plea in person or by attorney, or by the probation officer authorized in writing; provided, that in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if relief had not been granted pursuant to this section.

Free Expungement Seminar

2010-10-18T22:16:00.000-07:00

If you live in Southern California and cannot afford an attorney, but need an expungement.

You should attend the free Expungement Education Workshop, Monday, October 18, 2010, 4:00 – 5:00 pm, at the Center for Working Families, 1900 Atlantic Ave., Long Beach, CA 90806.

Those who attend will receive information from subject-matter experts on certificate of rehabilitation; information on expungement of adult convictions & sealing of juvenile records; and assistance with completing required expungement forms.

You can also receive free information about expungement at http://www.recordclearing.org

Rhode Island Considering Expungement Law

2009-04-08T16:16:00.000-07:00

Rhode Island law makers are considering H5045, which will allow some people convicted of multiple misdemeanors to have their record expunged.

The lead sponsor — freshman Rep. Michael A. Rice, D-South Kingstown — said he was aware of “a couple of cases” in his district of people who had racked up misdemeanor records in their teens and early 20s, “paid their debt to society” and straightened out their lives, but could not shake off the stigma of their youthful misdeeds.

Existing law allows a court to expunge a non-violent misdemeanor 5 years after completing the sentence. The waiting period for non-violent felonies is currently 10 years.

H5045, co-sponsored by Rice, Lally and Rep. Kenneth Carter, D-North Kingstown, would allow courts to expunge multiple misdemeanors, regardless of the age of the offender or the nature of the offense, which could include drunken driving and domestic abuse.

More soon...

Firearm Rights Restoration in Montana

2009-04-06T22:16:00.000-07:00

Question Presented

Can someone with a misdemeanor conviction in California that contains a lifetime prohibition on firearm ownership purchase a firearm in Montana?
(A) What are the applicable misdemeanor convictions in California that carry a lifetime prohibition on firearm ownership?
(B) Does Montana law allow for a party to purchase a firearm if the party has a lifelong prohibition on firearm ownership?

Short Answer
Yes, in order for a party who carries a lifetime prohibition for possessing a firearm in California to obtain the right to purchase a firearm in Montana, they must either:
• Not have been convicted of a crime in California, which is equivalent to a Montana offense that would subject the person to an additional sentence under section 46-18-221 (this includes any offence in which the use of a weapon is an element of the offense, and who, while engaged in the commission of the offense, knowingly displayed, brandished, or otherwise used a firearm, destructive device, or other dangerous weapon) or;
• They must apply to have their right to purchase firearms reinstated. If the party must apply for reinstatement the process would require the petitioner to file their application with the district court for the county in which the person resides for a permit to purchase and possess one or more firearms, explaining good cause for the possession of each firearm sought to be purchased and possessed.

Discussion

(A) Applicable Misdemeanor Convictions in California that Carry a Lifetime Prohibition on Firearm Ownership

Any person who has been convicted of a felony, a specified misdemeanor, or a specified firearms offense; who is addicted to narcotics; who is the subject of a protective order; or who has been found by a court or mental facility to have certain mental disabilities is prohibited by California law from possessing firearms. In some instances, convictions may carry a lifetime prohibition from possessing firearms.

The following California misdemeanor convictions result in a lifetime prohibition:
• Assault with a firearm (§§ 12021(a)(1), 12001.6(a).)
• Shooting at an inhabited or occupied dwelling house, building, vehicle, aircraft, housecar or camper (§§ 246, 12021(a)(1), 12001.6(b).)
• Brandishing a firearm in presence of a peace officer (§§ 417(c), 12001.6(d), 12021(a)(1).)
• Two or more convictions of 417(a)(2) (§ 12021(a)(2).)
• A “misdemeanor crime of domestic violence” (§§ 18 U.S.C. 921(a)(33)(A), 18 U.S.C. 922(g)(9).)

Parties convicted of the above California statutes will not be automatically eligible to purchase firearms in Montana. These parties must petition the appropriate Montana district court for the reinstatement of their right to purchase firearms and the requested reinstatement will be held at the discretion of the district court judge.

(B) Montana Law that Provides for the Possession of a Firearm for Convicted Individuals

Montana Code Annotated 45-8-313 Unlawful Possession of Firearm by Convicted Person, provides that, subject to certain limited exceptions, no person shall possess a firearm if he or she has been convicted of a felony for which he or she received an additional sentence under section 46-18-221 (which imposes an additional sentence for offenses committed with a dangerous weapon); or an offense of another state or federal law which is equivalent to a Montana offense which would subject the person to an additional sentence under section 46-18-221. This includes any offence in which the use of a weapon is an element of the offense, and who, while engaged in the commission of the offense, knowingly displayed, brandished, or otherwise used a firearm, destructive device, or other dangerous weapon.
Further, Montana Code Annotated, 45-8-314 Lifetime Firearms Supervision of Certain Convicted Persons, provides that if any person is convicted of an offense referred to in section 45-8-313 shall, as part of the sentence imposed, be sentenced to life supervision by the state for the purpose of restricting the person’s right to purchase and possess firearms. However, there are still avenues available for a person with a lifetime prohibition under Montana law to obtain possession of a firearm.
Montana Code Annotated 45-8-314(2) states that a person subject to a lifetime prohibition may apply to the district court for the county in which the person resides for a permit to purchase and possess one or more firearms. The applicant must show good cause for the possession of each firearm sought to be purchased and possessed. The grant or denial of the application does not prevent the person from submitting another application, except that if the application is denied, another may not be submitted for a period of 12 months. The application must contain the following information: (i) the person's full name and any past or present aliases; (ii) the person's date and place of birth; (iii) the person's address; (iv) the person's occupation; (v) the make and model of each firearm sought to be purchased and possessed; (vi) the date and place of each conviction of an offense referred to in 45-8-313, the name of the offense, the state and county in which the offense occurred, the sentence imposed, the place or places of incarceration, and the date of discharge from supervision for the last offense; (vii) the name and business address of the person's last probation or parole officer; and (viii) any other information considered necessary by the court.  
Considering the relevant Montana statutes, a person who is convicted of a misdemeanor in California that carries a lifetime prohibition maybe able to purchase firearms in Montana. This is based on the logic that if a person with a Montana conviction can apply to have their lifelong prohibition for the possession and purchase of firearms reinstated then the same opportunity will be available to a person with a California conviction. Thus, as long as the misdemeanor conviction in California is parallel to a conviction in Montana, the party with the California conviction should be able to petition for their reinstatement of firearms purchasing rights.

Conclusion
While a person convicted of a California misdemeanor that carries a lifelong prohibition on the purchase for firearms may not automatically qualify to purchase firearms in Montana, their eligibility to petition the right to purchase and possess a firearm seems unrestricted. In either situation, our client has options to restore his right to purchase and possess firearms in the state of Montana.

Possible Way To Get Around Misdemeanor DV Firearm Prohibition in CA

2009-02-24T15:40:00.001-08:00

This topic will be explored more later, but it should be thrown out their for comment and contemplation now:

Since the federal probation on misdemeanor domestic violence cannot be lifted by the state unless (1) the state took away the firearm rights and (2) the state took an action to restore the rights, those convicted of a misdemeanor DV in CA are in worse shape when it coms to firearm rights than those convicted of felony DV in CA.

This anomaly is created by the fact that the federal prohibition on firearm ownership of those convicted of domestic violence only applies to misdemeanors— and apparently not misdemeanors that were pled down after sentencing. So someone convicted of felony DV can have their case reduced from a felony to misdemeanor (which eliminates CA's prohbition on felon's owning a firearm) and the federal law will not apply to the reduced misdemeanor conviction because it was reduced post-sentencing.

Here is where the possible way around the federal prohibition comes into play. A CA court and change the classification of a sentence pursuant to Penal Code section 17(b). Though it has probably never been attempted, but a person can ask a court— even many years after completing the sentence, to increase the sentence from a felony to misdemeanor, and the reduce it back from felony to misdemeanor.

So, the state would take away the person's firearm rights by making the case a felony, and then restore the rights by making it a misdemeanor. This action, as contrived as it may seem, very well may take the petitioner out of the purview of the federal firearm ban.

More soon...

Expungement of Infractions in California

2009-02-17T15:59:00.000-08:00

Quick note.... California Penal Code 1203.4 does not allow expungement of offenses that are classified as infactions. The legislature probably deemed infractions too insignificant to justify the burden placed on the court. However, in the post-9-11 economy, background checks are utilized by more than 80 percent of employers. Our law firm receives several requests to expunge infractions a month from people who were denied employment because of an infraction.

To date, we have not challenged this law. However, reading some case law leads me to think that a challenge based on equal protection grounds might be successful.

In particularly, Newland v. Board of Governors of California Community Colleges, 19 Cal.3d 705, 566 P.2d 254

"We turn therefore to plaintiff's argument that the statutory requirement for a certificate of rehabilitation denies misdemeanants to equal protection of the law because it discriminates in favor of felons and against misdemeanants. The decisions clearly hold that a legislative classification, such as that involved here, violates the constitutional requirement of equal protection of the law unless it rationally relates to a legitimate state purpose. Neither our cases nor those of the United States Supreme Court have settled on a particular verbal formula to express this proposition. Some decisions require that the classification ‘bear some rational relationship to a conceivable legitimate state purpose’ ( D'Amico v. Board of Medical Examiners (1974), 11 Cal.3d 1, 16, Cal.Rptr. 786, 797, 520 P.2d 10, 21); others that the classification must rest upon ‘some ground of difference having a fair and substantial relation to the object of the legislation’ ( Reed v. Reed (1971), 404 U.S. 71, 75-76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225; Brown v. Merlo (1973), 8 Cal.3d 855, 861, 106 Cal.Rptr. 388, 506 P.2d 212)."

And..

"This statutory discrimination against misdemeanants can claim no rational relationship to the protective purpose of section 13220.16. This amendment stands as a legislative recognition that many of the persons barred for life under the unamended version of section 13220.16 were fit to teach. The Legislature could not possibly or sensibly have concluded that misdemeanants, as opposed to felons, constitute a class of particularly incorrigible offenders who are beyond hope of rehabilitation."

The logic in Newland may successfully be applied to a Constitutional challenge to Penal Code section 1203.4 denial of relief to those convicted of infractions.

Check back in the future as we expand this topic or post details on a challenge.

New York Second Chance Act - Part II

2009-02-11T17:13:00.001-08:00

FIRST IMPRESSIONS
revised 9/12/09 8:00 AM PST

New York State Senator John L. Sampson has sponsored Senate Bill 1708, "The Second Chance for Ex-Offenders Act.” This bill would provide many benefits to all New Yorkers. It is also worth noting that this version of the bill is considerably different, and in most ways better than the previous version of the bill that was reviewed on this site in November of 2008.

Confusing or Contradictory Waiting Periods

This bill would allow those convicted of non-violent and non-sexual misdemeanors (note: previous bill only applied to drug offenses) to have their record sealed when they meet the statutory requirements below:

(a) convicted of a misdemeanor offense and at least five years have elapsed since his or her last conviction for any misdemeanor or felony offense; or
(b) placed on misdemeanor supervision for an offense; and (c) at least five years have elapsed since the completion of the term of supervision; and

I am struggling to ascertain what Senator Sampson was trying to achieve in 5(a)-(c). I do not understand the logic or see the policy goal. The time requirements seem to be poorly written and may present some inconsistencies, see examples below:

EXAMPLE 1
D was convicted of a misdemeanor in 2006 and receives a three-year probation sentence. Under paragraph A, D becomes eligible in 2011. Under paragraph B and C, D becomes eligible in 2014. Which year does a judge use to determine eligibility? Should there be “sooner of” language?

EXAMPLE 2
D was convicted for a misdemeanor in 2004 and receives a three-year probation sentence. Using the (b) and (c), D would be eligible for relief in 2012. However, if D is convicted of another misdemeanor later that year and receives one-year probation sentence, D would become eligible for relief in 2010. Does this create incentive go commit another less serious misdemeanor to become eligible under paragraph (a)?

A revision may be clearer or make more sense if it read:

A record identified for sealing under subdivision two of this section may be sealed when (1) at least 5 years have elapsed since his or her last conviction for a misdemeanor or felony and (2) five years have elapsed since completion of the term of supervision for the case seeking to be sealed, if supervision was given.

This revision would make sure that petitioners have been law abiding for 5 years beyond the period of community supervision on their most recent offense, but allow sealing of older offenses without waiting for eligibility for a more recent offense (if that was Senator Sampson's intent).

I would prefer a simple waiting period that read:

"the sooner of at least 5 years have elapsed since completion of the term of supervision or since the completion of supervision and 8 years since the completion of the offense. No record shall be sealed if the petitioner has been convicted of a misdemeanor or felony within the past 3 years."

The second clause of the first sentence would allow for a shorter waiting period for those who committed their offense a year or two prior to being convicted. As clearing a record is, in part, a reward for rehabilitation, it makes sense to keep the time of law abiding behavior required prior to record clearing somewhat equal between those who were committed an offense and then began rehabilitating despite not being convicted until a year later and those who committed an offense and began rehabilitating after promptly being convicted.

There is no requirement to pay fines or restitution prior to petitioning to have a record sealed. This makes the bill different and better than laws in other states that require payment of fines and restitution before clearing the criminal record. If NY does want to protect society’s interest in recovering the fines, it should require that the defendant pay fines or perform community service in lieu of fines. Either way, it should continue to allow those who cannot afford to pay fines to obtain relief. Courts and victims always have the option to pursue collections in a civil case.

Missing Standard

Section 5 (b) says “The court, after consideration of evidence submitted by the petitioner in support of the petition and any evidence submitted by the district attorney in support of objections it may have to granting such petition, shall rule on the petition.”

There is no standard given for the judge to use. Most states define a standard. California uses “in the interest of justice.” Minnesota gets more specific by specifying something like that the benefit to the petitioner and society must outweigh the potential harm to society and the cost of the court.

Without a defined standard, there will be inconsistent rulings and inefficient use of court time.

NOTES

Previous versions had restorative justice elements that required the petitioner to complete community service and finish high school or a high school equivalent if that had not already been completed by the defendant. This bill has no similar provision. While such a provision is not necessary to achieve the basic public policy goals of record clearing laws, the inclusion of some provision that requires community service and/or completion of some education or certification would definitely increase the benefit to society-- and possibly help overcome some opposition to the bill.

This is a good bill that deserves support. It achieves the main goals of criminal record clearing. More soon...

RecordGone.com Passes Nation's Biggest Firms

2009-02-10T18:20:00.000-08:00

According to Alexa.com, the law firm of Higbee & Associates’ flagship web site, www.RecordGone.com, now generates more traffic than the web sites of seven of the ten largest law firms in the United States.

While the web traffic is not how most law firms measure their success, it is a statistic that Mathew Higbee, the founder of HIgbee & Associates, is happy to see. “They may have 200 times more attorneys on their payroll than we do, but more people rely on our web site for legal advice and information,” said. Higbee.

LAW FIRM - ALEXA RATING

RecordGone.com - 174,495

TOP TEN LAW FIRMS
1. Baker & McKenzie - 129,276
2. DLA Piper Rudnick Gray Cary - 154,749
3. Jones Day - 223,398
4. White & Case - 277,902
5. Lathan & Wadkins - 325,860
6. Skadden, Arps, Slate, Meagher & Flom - 223,428
7. Sidley Austin Brown & Wood - 440,435
8. Greenberg Traurig - 168,592
9. Mayer Brown, Rowe & Maw - 261,936
10. Morgan, Lewis & Bockius - 352,453

Domestic Violence Firearm Rights Part II

2009-01-28T19:35:00.000-08:00

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.

Oklahoma May Expand Expungement Law

2009-01-26T19:00:00.000-08:00

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

2009-01-26T17:38:00.001-08:00

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

Common Question: Can I Expunge An Infraction In California?

2009-01-14T20:54:00.000-08:00

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.

Common Question: Can I Expunge A Texas Conviction After I Have It Set Aside

2009-01-12T13:21:00.000-08:00

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

Topics for January 2009

2008-12-23T19:04:00.000-08:00

- Pennsylvania's revised expungement law. A step in the right direction.

- Updates on proposed expungement laws in New York. There may be competing bills.

- Untangling the waiting period mess in Utah's expungement law. Changes made in 2007 created problems in 2008.

Firearm Rights Restoration After Domestic Violence Convictions Part II

2008-12-13T09:43:00.000-08:00

The topic of restoring firearm rights after a misdemeanor conviction of domestic violence will probably be an ongoing topic for a few years as the courts sort out the difference between the plain language of the Lautenberg Amendment and the bizarre interpretations given by U.S. Department of Justice (DOJ), Bureau of Alcohol, Tobacco and Firearms (BATF), and various state courts and agencies.

A client of ours wanted to purchase a firearm in CA after having a misdemeanor conviction for Domestic Violence in Washington vacated. He also had his firearm rights restored by a WA court using WA's firearm restoration statute. We contacted the California Department of Justice's Bureau of Firearms to see if the client would be eligible to own a firearm in CA. Having not have faced that fact pattern before, the CA DOJ referred me to the National Crime Information Center (NCIC).

The NCIC is a division of the DOJ that screens applicants for firearm ownership. Most states require that the NCIC clear a person before the state will allow the person to purchase or possess a firearm. The legal analyst I spoke with gave me a surprising interpretation that is so bizarre that I have yet to formulate a response.

He said that a state government "cannot restore what it did not take away." Meaning, that despite the plain language of the Lauthenberg Amendment, which says that expungement, vacating, or setting aside a conviction will restore firearm rights— and, despite what seemed to be the previous position of the feds, that a state could restore firearm rights if the expungement remedy clearly stated rights were restored, the feds were now saying the rights can only be restored by the state if the state also took them away for the misdemeanor domestic violence.

This interpretation seems very strained and illogical. We will do some analysis on it soon, but I wanted to throw this out there to let other people start attacking it and incorporating it into any state legislation.

-Mathew Higbee

Second Chance Program May Provide Relief To Those Convicted of Drug Offenses In NY

2008-11-24T12:52:00.000-08:00

There may soon be a relief for some people in New York who have been dealing the debilitating stigma that resulted from a conviction for a felony drug offense. State Assemblyman Jeffrion L. Aubry (D – Queens County) has sponsored bill number A0958, known as Second Change Program.

If implemented, the Second Chance Program will allow those who have been convicted of non-violent, not-sexual drug offenses to apply to have their records pertaining to their conviction sealed. Prerequisite to applying include waiting five years, achieving a GED or high school diploma, completing a drug treatment program, and performing a year of community service. Once the prerequisites are met, the defendant “may apply to the Second Chance Commission, to be comprised of individuals appointed by the Governor, the Senate Majority Leader, Speaker of the Assembly and two by the New York District Attorney’s Association.”

Once sealed, the records can only be “made available only to the person’s designated agent, designated law enforcement agencies, a court with responsibility for the criminal adjudication of the individual, an agency with responsibility for the issuance of firearms permits, and, with regard to an employment application, any governmental agency involved in the investigation or prosecution of criminal or civil statutes.”

Full text of the bill can be found at http://assembly.state.ny.us/leg/?bn=A04958

ANALYSIS OF THE BILL

The current version of the bill would definitely provide plenty of public policy benefits (see footnote for brief description of main benefits) that New York is missing by not having any criminal record clearing law. The bill is innovative in some positive ways. However, restricting relief to only those convicted of felony drug offenses greatly limits the bill’s ability to achieve its stated purpose. Also of concern are the many questions that are left unanswered by the plain language of the bill.

Among the innovative positives is the bill’s restorative justice approach to record clearing. Restorative justice is an alternative theory of justice that has been gaining increasing popularity. The theory calls for the building of partnerships to reestablish mutual responsibility for constructive responses to wrongdoing within our communities. All record clearing laws fit restorative justice theories to some extent, but this bill goes farther in incorporating constructive responses.

While record clearing laws in most states focus narrowly on the needs of the court— which is paying court costs and fines, restitution needs of the victim, and the defendant demonstrating signs of rehabilitation by simply not getting convicted during a waiting period, the New York law takes broader approach. Most notably, the bill addresses the needs of society by having the defendant perform a year of community service prior to applying to have their record cleared. This restorative element will provide a direct benefit to society and, possibly, an indirect benefit to the defendant who may be personally enriched or learn skills while performing this service.

Also of note is the bills requirement that the defendant have earned a high school diploma or GED prior to applying. Not only does this requirement benefit defendants who have not received proper incentive to receive a basic education, it will better insure that the public policy goal of society getting a benefit from people who are otherwise marginalized is met.

There are several possible shortcoming of the bill.

First and foremost, relief is only available to those who have been convicted of felonies involving the sale, distribution or possession of controlled substances. Restricting relief to this narrow class of offenders greatly limits the potential benefits of the program. The bills stated purpose is to permit “individuals, who have successfully demonstrated their rehabilitation, to have the records of certain non-violent, non-sexual convictions sealed.” Limited the relief to only those convicted of felony drug offenses falls far short of the stated purposes and leaves tens of thousands of similarly situated people without relief.

A general shortcoming of the bill is that it leaves too much undefined. The lack of specifics almost always results in inconsistent implementation, judicial or administrative misinterpretation, or court challenges that can render the entire bill ineffective.

1. What is the standard used by the Second Chance Commission?
2. What is the remedy for appeal, if any?
3. Can someone reapply, if so, when?
4. What is a sex offense?
5. What is a violent offense?
6. When does the five-year waiting period begin?
7. If someone gets a subsequent offense, are previously sealed records made public or just unsealed for the purposes of adjudicating and sentencing in the subsequent court case?
8. When felonies and misdemeanors are counted for purposes of eligibility, are cases or counts to be counted?
9. Does this restore any rights that are lost as a result of felony conviction?
10. Does this seal records at all state agencies?
11. What happens if the person has a conviction during the waiting period for a previous offense?

Client Stories About How The Criminal Justice System Failed

2008-11-20T12:58:00.000-08:00

In the course of dealing with hundreds of people each month, we hear many horror stories about how the criminal justice system has failed people. The stories often involve lying witnesses, ineffective counsel, deceptive district attorneys, corrupt police and arrogant judges.

This section is for clients who want to anonymously or publicly tell their story by adding comments.

The purpose of this is to

1. Shed light on the problems in the criminal justice system.
2. Provide a record of past abuse that may help other people in the same situation
3. Possibly prove a pattern of abuse
4. Let people vent
5. Provide us with information we can use as we continue to advocate for change in the laws

So, if you have a story, please post it here for us and all of the world to read. Use the Post Comment link to start.

Funny Expungement Laws

2008-11-13T19:38:00.000-08:00

Getting to know the expungement laws of all 50 states means getting to know some odd requirements to have a record expunged.

Among the more interesting situations where a person becomes eligible for expungement include:

One way to become eligible for expungement in Pennsylvania is to be dead for at least 3 years. So, when planning your estate, make sure to create a trust or testimentary gift contingent on one of your heirs expunging your record 3 years after you assume room temperature. You don't want to have trouble finding a job in the afterlife.

If want to guarantee that your records get expunged in Arizona, make sure you are taking your vitamins and getting lots of exercise. If 99 years pass from the time you were convicted, you are entitled to have your conviction expunged in Arizona. Of course, that is just one way to do it. But it is in the law.

More soon. Thank you for reading about funny expungement laws.

- By Mathew Higbee, Attorney at Law

Fixing Arizona's Procedure for Firearm Rights Restoration

2008-11-03T15:42:00.000-08:00

Common sense tells us that a person convicted of a felony is probably more dangerous, and probably more likely to re-offend, than a person convicted of a misdemeanor. However, in Arizona a person convicted of multiple serious felonies can eventually restore his or her gun rights after being released from prison or probation,[1] whereas a person convicted of just one misdemeanor will forever lose his or her right to possess a gun—if that misdemeanor involves domestic violence.

Sound odd or unfair? It gets worse.

Here is how it happens. Under federal law, a person convicted of a “misdemeanor crime of domestic violence” forever loses his right to posses a firearm, unless he gets a pardon, gets his conviction expunged or set aside, or gets his civil rights (including his gun rights) restored.[2] This law was added to the United States Code in 1996 as an amendment (the “Lautenberg Amendment”) to the Gun Control Act of 1968.[3] It was Congress’ response to “the growing national recognition of the importance of deterring domestic violence.”[4]

Adding to the unfairness of the Lautenberg Amendment was the fact that it was applied retroactively. So all those people who took a plea bargain and accepted an agreed upon sentence suddenly had a large penalty added to their bargain— they lost their Second Amendment rights. Opponents of the Lautenberg Amendment have filed a Supreme Court challenge to the retroactive application as grounds that the ban is punitive and therefore violates the Constitution’s prohibition on ex post facto laws. The Supreme Court is yet to rule on the case.

It gets even worse.

Many states, like Arizona, have procedures to set aside a conviction, which are referenced in the Lautenberg Amendment. However, the United States Justice Department (DOJ), the federal agency that provides firearm eligibility reports, ignored the plain language of the Lautenberg Amendment and applied its own definition “set aside.” Under that definition, Arizona’s setting aside law is not sufficient because it does not expressly restore a person’s firearm rights.

All those convicted of a felony in Arizona lose their Second Amendment rights. However, Arizona law provides a way for convicted felons to restore their gun rights. Once a felon meets a waiting period, they can petition the court that convicted them to restore their rights.[5] The District Attorney is given an opportunity to object and the judge has discretion whether or not to restore the rights. However, the law specifies that the court only has authority to restore rights in felony cases. So, Arizona residents who have a conviction for a “misdemeanor crime of domestic violence” have no way of removing the federal prohibition.

There is a fathomable reason for this paradox in Arizona. Under Arizona law, a person convicted of a misdemeanor, whatever it may be, does not lose any civil rights, including the right to possess a gun. However, a person convicted of a felony does. Therefore, the Arizona legislature understandably never felt the need to provide a way for misdemeanants to restore their civil rights/gun rights (because you can’t restore something that was never lost in the first place).

Unfortunately, the Arizona legislature apparently did not anticipate the Lautenberg Amendment or the DOJ’s narrow interpretation of setting aside. To date the legislature has not responded.

Without the ability to restore their gun rights under Arizona law, Arizonians who have a conviction for a “misdemeanor crime of domestic violence” are forever barred from possessing a firearm because of the federal prohibition. It is time for the Arizona legislature to fix this problem. It does not make any sense to allow a person with multiple serious felonies gets to restore his gun rights in Arizona (and thereby be immune from federal prosecution) whereas a person who may only pushed a spouse during an argument loses their Second Amendment rights for life.

The permanent loss of Second Amendment rights means more than just the loss of the opportunity to hunt or protect a person’s life and home. Many jobs that are common career paths for people who may have once had trouble with the law require the ability to carry a firearm. Security guard, law enforcement and the armed forces are just a few entry-level jobs that require the ability of an applicant to carry a firearm.

Arizona lawmakers can fix this problem by simply expanding the court’s current authority to restore a felon’s Second Amendment rights to those who commit misdemeanor offenses for domestic violence.[6] This is necessary in order for these deserving people to be immune from federal prosecution and thereby have their gun rights truly restored. Such a move is good public policy and it will fix the many injustices associated with this federal law that is being applied unfairly and retroactively.[7]

CURRENT AND PROPOSED CHANGES TO A.R.S. §§ 13-906 BELOW:

___

Current A.R.S. §§ 13-906

C. If the person was convicted of a dangerous offense under section 13-604, the person may not file for the restoration of his right to possess or carry a gun or firearm. If the person was convicted of a serious offense as defined in section 13-604 the person may not file for the restoration of his right to possess or carry a gun or firearm for ten years from the date of his discharge from probation. If the person was convicted of any other felony offense, the person may not file for the restoration of his right to possess or carry a gun or firearm for two years from the date of his discharge from probation.

Proposed A.R.S. §§ 13-906

C. If the person was convicted of a dangerous offense under section 13-604, the person may not file for the restoration of his right to possess or carry a gun or firearm. If the person was convicted of a serious offense as defined in section 13-604 the person may not file for the restoration of his right to possess or carry a gun or firearm for ten years from the date of his discharge from probation. If the person was convicted of any other felony offense or a misdemeanor of domestic violence or any misdemeanor offense that carries a state or federal prohibition on possession or carrying a firearm, the person may not file for the restoration of his right to possess or carry a gun or firearm for two years from the date of his discharge from probation.

- By Mathew K. Higbee, Attorney at Law

[1] See Arizona Revised Statutes §§ 13-905 and 13-906.

[2] See 18 U.S.C. §§ 921(a)(33) & 922(g)(9). The United States Tenth Circuit Court of Appeals recently ruled in Wyoming ex rel. Crank v. United States, 2008 WL 3906587 (10th Cir., Aug. 26, 2008), that for a crime to be “expunged” or “set aside” under 18 U.S.C. § 921(a)(33), the state procedure must “completely remove all effects of the conviction at issue.” The Court held that Wyoming’s “expungment” statute, which only partially removed the effects of a conviction and allowed an “expunged” conviction to be used in any in subsequent prosecution, did not go far enough. Arizona’s civil rights restoration statutes (A.R.S §§ 13-905 and 13-906) probably satisfy the Tenth Circuit’s holding. They are not “expungment” or “set aside” statutes (these two mean the same thing, according to the Tenth Circuit) but they are “civil rights restoration” statutes which specifically provide for the restoration of gun rights. Arizona has a separate “set aside” statute (A.R.S. § 13-907) but that statute would not satisfy the Tenth Circuit’s holding.

[3] Pub.L.No. 104-208, § 658, 110 Stat. 3009, 3009-371 to -372 (1996)(codified at 18 U.S.C. §§§ 921, 922, & 925).

[4] United States v. Frechette, 456 F.3d 1 (1st Cir. 1996).

[5] See Arizona Revised Statutes §§ 13-905 & 13-906.

[6] See Arizona Revised Statutes §§ 13-906.

[7] In drafting legislation, the Arizona legislature should work closely with the ATF (US Bureau of Alcohol, Tobacco, Firearms, & Explosives) in order to avoid the problems Wyoming faced in Wyoming ex rel. Crank v. United States.

New Deleware Expungement Law Takes Affect

2008-10-27T17:43:00.000-07:00

Deleware's new law that allows offenders to pay $45 to have a charge purged from their record is has been enacted and is getting the support of local law enforcement.

The new law will allow quick and easy expungement of certain misdemeanors for applicant with no other convictions. This simple and affordable procedure will put expungement within the financial reach of many people who could not otherwise represent themselves due to the complexity of the process or afford the price of an attorney.

On July 15, Gov. Ruth Ann Minner signed House Bill 496 into law and it took effect 90 days later. Under the previous statute, those seeking expungement would begin the process at the Prothonotary's Office of Superior Court in the county where their case was heard. Under the new law, ex-offenders will report to the State Bureau of Identification (SBI), where they will pay $45 for fingerprints and a copy of their criminal record.

SBI staff will review the applicant's criminal history and determine one of two courses of action. If the crime to be expunged is a misdemeanor and the applicant has no other criminal convictions prior to or after the period in which they were arrested, they will be eligible for a mandatory expungement.

There are certain misdemeanor crimes described in the statute, however, that prevent an offender from being eligible.

If the applicant wishes to expunge felony charges or has criminal convictions in addition to the charges they wish to be expunged, they will be directed to the appropriate court to request a discretionary expungement.

The process for discretionary expungement will most likely require the assistance of an attorney.

A Preview of Forthcoming Topics

2008-10-25T21:23:00.000-07:00

Here is a preview of upcoming topics. Please let me know if you are any input.

- Expanding Arizona's Restoration of Firearm Rights Remedy to Include Misdemeanors for Domestic Violence
- Fixing the Utah's Contradictory Waiting Periods
- Why Waiting Periods for Relief Should Not Start When Fines Are Paid
- Modernizing California's Penal Code Expungement Law - Penal Code 1203.4
- Modernizing California's Arrest Record Sealing Law - Penal 851.8
- The Need For Federal Expungement Law
- Challenging Retroactive Registration Requirements Using the Contracts Clause of the US Constitution
- Proposed Changes to Texas Expungement Law

-RecordGone.com

Proposed Changes to CA's Certificate of Rehabilitation Law

2008-10-25T19:27:00.000-07:00

California Penal Code (PC) section 4852 (Certificate of Rehabilitation) provides an important remedy for people with felony records or who have been convicted of a sex offense that requires registration pursuant to Penal Code section 290.

This remedy serves many purposes. (1) It provides a statutory mechanism for courts to tell society that a person is rehabilitated and capable of making positive contributions to society. (2) It is the only judicial remedy for felons whose offense cannot be expunged pursuant to PC 1203.4; therefore, meeting its requirements of good behavior are incentive for convicts to continue their law abiding behavior. (3) It provides a way for onetime felons to demonstrate they have been rehabilitated and are worthy of receiving certain state licenses that would otherwise be off limits. (4) It relieves some sex offenders of the requirement to register.

All four of the purposes provide direct and indirect benefits to the applicant and society. There are several changes that can be made to increase these benefits.

1. Change the residency requirement.
2. Expand the jurisdiction to include people who reside in California, but whose offense was federal or committed in another state.
3. Remove the requirement of obtaining relief under PC 1203.4.
4. Require the DA to provide notice of the hearing to the victim

These benefits will be discussed in detail in upcoming posts on the RecordGone.com Blog.

By Mathew Higbee, Attorney at Law

Welcome to RecordGone.com's First Blog Entry

2008-10-25T19:21:00.000-07:00

This blog will be used by the attorneys at www.RecordGone.com (dba of Higbee & Associates) to promulgate reform in laws as they pertain to post-conviction remedies and to answer unique questions that need more detailed answer than can be given our our law firm web site.

Of course, the occasional news story and random observation may find its way into this blog.