If you were convicted of an offense requiring registration, you must register in California for life so long as you live or regularly work here. You must register in person with the chief of police in the city where you live or with the sheriff’s department if you live outside the city. College students or those living or working on campus must register with the campus police. If you live at more than one address, you must register in each city and/or county in which you live.

You are required to register within 5 working days of your release from custody or placement on probation or parole, your annual birthday, or changing your name or your address. If you move, either in or out of California, you must notify the local California authorities within 5 working days of your move.  Keep in mind that the state you move to will likely require you to register there as well so check the laws in that state.

If you are a transient or are homeless, you must register within 5 days of your release from custody, every 30 days thereafter and every year on your birthday. 

Consequences of Failing to Register

Failing to register is a crime so don’t let this happen. The severity of this crime (misdemeanor or felony) would depend upon the offense you were originally convicted of. For instance, if you were convicted of a misdemeanor sex offense, the failure to register would usually be a  misdemeanor the first time and a felony thereafter. If you were convicted of a felony sex offense, your failure to register would be a felony. Your failure to register must be “willful.” To prove your failure was not “willful” you must show that a severe involuntary physical or mental condition prevented you from registering. Simply stating you forgot would be inadequate.

Residency Limitations

Pursuant to Proposition 83 which passed in November, 2006, no person required to register as a sex offender may reside within 2,000 feet of any school or park where children regularly gather. Furthermore, a sex offender parolee may not reside with another sex offender unless they are legally related by blood, adoption or marriage.

Removing the Registration Requirement

Although uncommon and very difficult to achieve, there are ways to have your registration requirement removed.  You may obtain a certificate of rehabilitation from the superior court relieving you of your duty to register. Note that if you were convicted of certain serious or violent sex crimes, a certificate of rehabilitation will not relieve you from your duty to register. (See Penal Code § 290.5(a)(2)). In those cases, you must obtain a full pardon from the governor to be relieved of your duty to register.

Having had many years experience with these matters, I can help. Contact me for a free consultation.

~ Dan Koukol, Criminal Defense Attorney

There are approximately 170 offenses requiring registration in California.  To see the complete list of these offenses, visit the Megan’s Law website.

Offenses Not Requiring Posting

Not all of these 170 offenses require that information about the offender be posted on the public Megan’s Law website.  People convicted of the following Penal Code sections may apply to be excluded from the Internet site:

• Felony 243.4(a) – Sexual Battery
• Misdemeanor 647.6 – Annoying or molesting a child age 16 or over
• Any offense which did not involve penetration or oral copulation, the victim of which was a child, stepchild, grandchild, or sibling of the offender, and for which the offender successfully completed or is completing probation. 

To be excluded from the posting requirements, the person must file an application with the California Department of Justice.  

Offenses Not Requiring Registration

Not all sex offenses are restigerable either.  For instance, the following Penal Code offenses do not require mandatory registration:

• 647(a) – lewd conduct (flashing, groping, having sex in public)
• 261.5 – unlawful sexual intercourse with a minor over 16 years old;
• 266h and 266i – pimping and pandering

However, it’s important to note that a court during sentencing may order lifetime registration for these offenses as well.  (See Penal Code § 290.006)  That is why it is imperative that you have a skilled attorney representing you regardless of the particular charges you face.

Avoiding Sex Registration

Additionally, you may initially be charged with a registerable offense that – due to lack of evidence or for some other reason – cannot be proven beyond a reasonable doubt in court.  Or you may be able to convince the prosecutor to accept a plea to an offense that does not require registration.  An experienced attorney is needed to help you navigate through these processes.

I have had over 20 years experience defending people in California. If you need help, contact me.

~ Dan Koukol, Criminal Defense Attorney

This blog series will help you understand the registration requirements in California and educate you on how to protect yourself from the pitfalls that may arise regarding those requirements.  It will also discuss the ramifications of a recent California Supreme Court case regarding 290 registration in California.

Section 290 Overview

Section 290 of the Penal Code requires persons convicted in California of specific sex offenses to register their personal information with the local law enforcement agency for life.  It also requires people who were convicted of a sex offense in another state to register in California if they work or live here and the offenses they were convicted of in another state would have been a registerable offense if originally committed in California.

If you have been convicted of such an offense, the law requires you to provide your name, date of birth, a photograph, criminal history and in some cases your address of residence.  The agency then provides this information to the California Department of Justice (DOJ) who in turn posts some or all of it on their Megan’s Law website.  Information not published by DOJ is still accessible by the public upon their request.

Megan’s Law Website

The California DOJ maintains the Megan’s Law website.  This is a publicly accessible database of sex offenders in California.  A person can view information about a sex offender by searching by name or by typing in their address and viewing a map pinpointing the residences of offenders living in their area.  You can access this web site at www.meganslaw.com. 

The Megan’s Law website is designed to provide information to the public about sex offenders in their community.  The law does not allow the information to be used by insurance, credit, loan, housing or education institutions to evaluate the person’s worthiness to do business with them.  (See Penal Code § 290.46(d)).  Some employers may consider prior sex offense convictions as a basis of employment but they must have specific legal authority to do so. 

If you know or suspect such companies discriminating against you on this basis of your status as a 290 registrant, I suggest you contact an attorney.

As a defense attorney in the Sacramento, California metropolitan area, I have extensive experience with these matters. Contact me, I can help.

~ Dan Koukol, Criminal Defense Attorney

If you are sentenced to prison you are not eligible to later expunge the conviction.  However, you may be eligible to obtain a certificate of rehabilitation which can help you gain employment, a license or other needs.

To receive a certification of rehabilitation from the superior court, you must show the following: (1) you have lived in California for at least three years immediately prior to filing the petition (Penal Code § 4852.01(a)) and (2) seven years have passed since your most recent conviction or since you were released on parole or probation, whichever is later (Penal Code § 4852.03(a)(3). The rehabilitation time is nine or ten years if you were convicted of certain serious or violent offenses such as murder, offenses that carry a life sentence, or those that require § 290 registration. (Penal Code § 4852.03 (a)(1)-(2).)

Additionally, certificate of rehabilitation are not available for people convicted of a misdemeanor, serving mandatory life parole, convicted of 286(c), 288, 288a(c), 288.5, 289(j), or persons in the military service. (Penal Code § 4852.01(d).)

A certification of rehabilitation that is granted by the Superior Court judge it is automatically forwarded to the Governor’s office as an application for a pardon. (Penal Code § 4852.06.)

Early Termination of Probation

You may bring a motion in superior court to obtain early termination of your misdemeanor or felony probation. To obtain this relief, you must provide evidence of your good conduct and reform and show that the ends of justice will be served by granting you early termination of probation. (Penal Code § 1203.3(a).) This means that you must show the judge that there is good reason to terminate your probation early. A job requiring a clear criminal record is an example of good reason to grant such a motion. If you are granted early termination of probation, you can then move forward with having your records sealed under 1203.4.

Note that the trial court does not have authority to terminate your probation early when a specific probationary period is a term of your plea agreement. (People v. Segura (2008) 44 Cal.4th 921.)

If maintaining your criminal record is important to you feel free to give me a call. I enjoy helping my client’s avoid convictions whenever possible, and when that is not possible to minimize the adverse effects of a criminal conviction by negotiating and carefully structuring the disposition so that you can earn back your clean record.

~ Dan Koukol, California Criminal Defense Attorney

There are several different circumstances in which records of your arrest or detention may be completely sealed and destroyed.  The various scenarios are laid out below.

If you were arrested and no charges were ever filed, you may petition the arresting agency and the district attorney to have your records sealed and destroyed. They will grant relief if you can show you are factually innocent of the crime charged.  Factual innocence exists when no reasonable cause existed to believe that you committed the offense. If the law enforcement agency and district attorney fail to timely respond (usually 60 days), the petition is deemed denied.   (Penal Code § 851.8(a)-(b).)

If your petition to law enforcement is denied, you can petition the superior court in the county of your arrest to seal and destroy your records. You must prove to the superior court that you are factually innocent of the crime charged.  This is done by providing the court with declaration, affidavits, police reports and other relevant evidence showing that no reasonable cause existed to believe that you committed the offense.  (Penal Code § 851.8(b).)  The court will not grant relief if they “believe or conscientiously entertain any honest and strong suspicion that the person arrested [or acquitted] is guilty of the crimes charged.”  (People v. Adair (2003) 29 Cal.4th 895.)

If you were arrested, charges were filed, but no conviction occurred, you may directly petition the superior court to seal and destroy your records. The court must also find you factually innocent of the crime in order to grant relief in this scenario.  (Penal Code § 851.8(c).)

The court may also order your arrest record sealed and destroyed in cases where dismissal occurs and the prosecuting attorney concurs with the court’s order.  (Penal Code § 851.8(d).) Finally, a judge presiding over a jury trial in which an acquittal occurs may find the defendant factually innocent of the charges and order the records sealed and destroyed on their own. (Penal Code § 851.8(e).)

Having your records ordered sealed and destroyed ensures that all law enforcement agencies and the courts will seal you records and, after three years, destroy them. Once ordered sealed and destroyed, you need not indicate that you were ever arrested of the offenses.  (Penal Code § 851.8(f).)

A similar record sealing process exists for substance use or drug possession offenses. Court may order your drug arrest record sealed, but not destroyed, if the following elements are met: (1) you completed statutory drug diversion or DEJ program, and (2) the offense for which diversion or DEJ was granted is listed in Penal Code § 1000. (Penal Code § 851.90(a)(1).) Once an arrest record is ordered sealed and destroyed, you need not indicate that you were ever arrested of the offense, unless you are applying for a peace officer position in which case you must disclose the arrest . (Penal Code § 851.90(a)(6), (b).)

Juvenile Record Sealing

Your indiscretions as a juvenile don’t have to follow you as an adult. In many cases, you can seal your juvenile records when you turn 18. (Penal Code § 851.7.) To do so, you must petition the juvenile court in the county you were convicted to have your juvenile record sealed. (Welfare & Institutions Code § 781(a).) Once sealed, your juvenile offenses are inaccessible and they will be destroyed five years from the date sealed. If you do not petition to have your juvenile record sealed, they will remain on your record until you turn 38; at which time they will be destroyed. (Welfare and Institutions Code § 781(d).)

A similar procedure under Welfare and Institutions code § 389 is applicable if you were deemed a dependent of the court as a juvenile.

Note that some serious violent felonies under Penal Code § 707(b) are not be eligible to be sealed, will not be automatically destroyed and can be used as strikes against you in the future.

If you have any questions about your personal situation, please contact me for a free consultation.

~ Dan Koukol, Criminal Defense Attorney

Can obtaining a dismissal help you get a job or a license?

Depending on whether the employer is public or private, having your records dismissed can make a big difference.

Generally, private employers cannot ask applicants about dismissed records. California law states that it is unlawful for an employer to inquire or seek information about an applicant concerning arrests that did not result in a conviction, convictions that have been ordered sealed, expunged or statutorily eradicated, cases dismissed under Penal Code § 1203.4, and any arrests in which a pretrial diversion program was successfully completed. (See Labor Code § 432.7(a); Cal. Code of Regs. § 7287.4(d).)

Thus, a private employer can only legally ask you: (1) have you ever been convicted of a crime? and (2) are you out on bail or your own recognizance regarding a recent arrest? You need not tell the private employer about arrests that did not lead to a conviction or about convictions that have been dismissed.

When applying for government employment, license or certification, the law is slightly different. State and local governments are authorized to make applicants submit their fingerprints in order to receive state and federal criminal history information about them. (Penal Code § 11105.) The level of information the agency is allowed to consider depends upon on the job, license or certification applied for. For instance, agencies employing peace officers are entitled to see all convictions, arrests, and successful diversions. (Penal Code § 11105(k).) Other agencies are only entitled to view convictions and offenses for which the applicant is presently awaiting trial. (Penal Code § 11105(p).)

As a result, government employers can see every conviction rendered against you; even those that have been dismissed. (See Business and Professions Code § 480.)  Thus, if a government employer asks if you have ever been convicted of a crime and the charge was dismissed, you must respond “yes, conviction dismissed.” Because of the safeguards under Labor Code § 432.7(a) however, dismissed convictions cannot be considered for employment purposes.

Note that applications for government licensure often require you to list all misdemeanor or felony conviction; even those that have been dismissed or expunged. When asked in this fashion, include all convictions. Government licensing agencies are allowed to consider all convictions to determine whether they are substantially related to the qualifications, functions or duties of the licensee. Failure to disclose this information will likely be viewed as an attempt to misrepresent or deceive the agency which may be considered worse conduct than the underlying conviction.

If you are facing any of these issues and need help, contact me.

~ Dan Koukol, Criminal Defense Attorney

There are several ways to have convictions dismissed from your record including reducing your felony to a misdemeanor, expungement, diversion, and marijuana charge erasure. These methods are explained below.

1. Reducing a felony to a misdemeanor

A conviction can be reduced from a felony to a misdemeanor. (Penal Code § 17(b).) Only violations known as “wobblers” (offenses that can be originally charged as either a felony or misdemeanor) may be reduced to misdemeanors. An offense is a “wobbler” if the punishment statute allows a sentence of state prison or county jail.

If the court grants reduction under § 17(b), the offense is considered a “misdemeanor for all purposes” which means rights to own a gun are reinstated and immigration consequences associated with the felony are removed. Note however, that a felony reduced to a misdemeanor under § 17(b) can still be considered as a “strike” offense for punishment purposes. (See People v. Franklin (1997) 57 Cal.App.4th 68.)

2. Expungement

Expungement is a procedure used to have convictions dismissed from your record. You must satisfy the following elements to be eligible for an expungement: (1) not be on probation or parole when the court hears your motion to expunge your conviction; (2) not be serving a sentence; and (3) not be charged with committing any offense. (Penal Code § 1203.4.) Since “offense” includes all crimes (felony, misdemeanor and infraction) outstanding warrants and traffic infractions would disqualify you from expungement. The court is required to grant expungement motions as a matter of law if probation is successfully completed. In all other cases, the court has discretion to grant or deny the petition. If the court grants expungement, the accusation against you will be dismissed and you will be released from all penalties and disabilities resulting from the offenses. The effects of expungement on obtaining employment or a license are discussed later.

Expungement is prohibited in the following cases: infractions, convictions resulting in state prison sentences, misdemeanor convictions under Vehicle Code § 42001, the following Penal Code Sections: 286(c), 288, 288a(c), 288.5, 289(j), felony 261.5(b), and in all cases in which probation was not granted.  (Penal Code § 1203.4(b); People v. Borja (1978) 110 Cal.App.3d 378.)

3. Diversion

Diversion is another conviction dismissal mechanism. This is routinely offered for minor, non-violent offenses such as petty theft. In diversion cases, the charge against you will be dismissed if you successfully complete all of the diversion program requirements.

If you are charged with being in possession of drugs or under the influence of controlled substances, drug diversion programs (often referred to as deferred entry of judgment or (DEJ)) allow you to have the charges against you dismissed if you successfully complete the program and stay out of trouble for 18 months. (Penal Code § 1000.) A huge benefit of the DEJ program is that employers and state licensing agencies cannot use the arrest against you if you complete the program successfully, unless you are applying for a peace officer position. (Penal Code § 1000.4(a).)

Proposition 36 is another drug diversion program that allows drug charges to be dismissed upon successful completion of the program. (Penal Code § 1210.1.)  If available however, DEJ is the preferred program because the restrictions of the use of the arrest information by employers and state licensing agencies does not apply to Proposition 36 diversion.

4. Marijuana possession erasure

All possession of marijuana for personal use convictions, after January 1, 1976, are automatically erased from your record after two years. (Health & Safety Code §§ 11361.5, 11361.7.) Therefore, you need not seek dismissal of these simple possession cases unless your marijuana charge still appears on your record. Note, convictions for cultivation, sale or transportation are not eligible for automatic dismissal.

Check back for more blog posts on this subject and others.

If you are in need of help through any dismissal process, please contact me for a free consultation.

~ Dan Koukol, Criminal Defense Attorney

If you have a criminal history record, there are ways to clean it up to minimize its future impact on your life. However, before exploring these methods, it is important to know exactly what is on your record. 

Your criminal history record can be obtained from a variety of sources. The court papers you received when you were convicted is a good source of this information. If you did not keep this information, you can go to the superior court in the county in which you were convicted and obtain these documents. Ask for a copy of your order of judgment. Note that this will only contain information for convictions from that particular county; not any other county in which you may have also been convicted. You must obtain that information from the superior court for each county in which you were convicted in order to have your complete conviction records.

You can also obtain your “RAP” sheet from the California DOJ by going to an authorized livescan provider, submitting your fingerprint images, completing a form and paying a fee ($25 for DOJ processing and around $25 for the print rolling).

Follow this link to review the process:  Office of the Attorney General Website

I suggest using a private livescan rather than going to the local police or sheriff’s office to avoid any unwelcome arrests for unknown outstanding warrants. 

Note that there may be arrests or convictions on your record that do not appear on your DOJ “RAP” sheet due to a court’s failure to report a disposition or other errors.  Therefore, I suggest obtaining your order of judgment from the superior court to be sure you have accurate records.

Stay tuned for more on cleaning up your criminal record. Remember, I am available for consultations by appointment.

~ Dan Koukol, Criminal Defense Attorney

It is also important to realize that you have much more leverage with the prosecutor and the judge before you enter a plea than you will after. So you are in a much better position to negotiate a disposition (plea bargain) which will allow you to:

1) Avoid a conviction on your record entirely

2) Reduce a felony to a misdemeanor (or a misdemeanor to an infraction)

3) Avoid a “strike” conviction

4) Reduce the duration of the probation term

5) Enter into an agreement where the court agrees in advance to reduce the severity of the offense after a period of time

6) Or a combination of the above.

With that in mind let’s learn all about criminal records in California. This topic will be written as a series of blog posts, so tune in every week to learn more.

 What is a criminal history record?

A criminal history record is more than a record of your convictions. It is a master record of information related to your identification and criminal history that includes name, date of birth, physical description, fingerprints, photographs, date of arrests, arresting agencies and booking numbers, charges, dispositions and similar data. (Penal Code § 11105(a)(1)(A).) Although not all entities can view this entire list of information, many have a need and right to access it.

Criminal history records contain information about crimes. There are three categories of crimes: (1) felonies; (2) misdemeanors; (3) infractions. (Penal Code § 16.)  A felony is a crime punishable by a sentence of 365 days or more in jail, or death. A misdemeanor is punishable by a sentence of less than 365 days in jail. Finally, an infraction is usually a citation type offense often simply requiring the payment of a fine.

In California, there are three main entities that store criminal history records. All non-traffic criminal history information is maintained by the California Department of Justice (DOJ). The California Department of Motor Vehicles maintains records of traffic offenses (including DUI arrests and convictions). Finally, the Federal Bureau of Investigation maintains criminal history records of federal offenses and also offenses committed in other states.    

How an adverse criminal history record can limit you.

A criminal history record can severely limit you for life. Depending on the severity of the offense, a criminal history may prevent you from obtaining certain employment, holding a professional license (doctor, lawyer, teacher, banker, insurance agent, real estate agent, financial consultant, nurse, pilot, investigator, contractor, etc.) joining the armed forces, attaining a bond, adopting a child, acting as a guardian for a family member, possessing a firearm, obtaining a passport, and other rights. Your arrests and convictions may also haunt you if you are called to testify in a court case. And in some cases, you may be required to register as a sex, drug, arson or gang offender due to your record.  Jail will pass, but your record will haunt you for the rest of your life. Therefore, it is important that you avoid having a criminal history record.

To learn more about this topic subscribe to the RSS feed or check back weekly.

If you have a criminal record in California and want to know your options, contact me for a consultation.

~ Dan Koukol, Criminal Defense Attorney

According to a recent report from the California Department of Motor Vehicles, Placer County District Attorney’s Office has the highest conviction rate of drunken or impaired drivers in the entire state of California.

Placer’s DUI conviction rate is 99.2 percent. Compare that to the state average of 79.4 percent. There are only two other counties in California with conviction rates of 90 percent or higher. Shasta County has a 96.9 percent rate and Santa Barbara has a 92 percent rate.

These statistics are based on DUI arrests made in 2007 and their subsequent prosecutions through the end of the 2009 year. Placer County has rated 90 percent or higher in DUI convictions for five years consecutively.

This is no surprise to the California Highway Patrol Officer’s serving in the Auburn Highway Patrol Office. One officer stated: “I’ve worked up and down the state and I can say that the Placer County District Attorney’s Office is one of the hardest working agencies toward achieving justice that I’ve seen. This county lets people know that if you come here and are violating DUI laws, you will be held accountable.”

Placer County’s nearly “perfect score” in convictions is accredited to an aggressive approach by the prosecutors and the local law enforcement agencies that made the DUI arrests.

The Department of Motor Vehicles report shows that Placer County convicted 2,257 motorists on misdemeanor DUI charges and 76 others on felony DUI charges. Another 182 drivers who were arrested on suspicion of drunken driving were eventually convicted of reckless driving.

As a Placer County Defense Attorney, I have had over 20 years experience defending people for DUI offenses. I always recommend that if you are drinking, do not drive under any circumstances. However, if you do find yourself facing DUI charges, contact me as soon as possible to schedule a consultation.

~ Dan Koukol, Criminal Defense Attorney