District Attorney Objections to a Petition to Dismiss
In general, petitions to dismiss under Penal Code section 1203.4 (“expungements”) are straight forward cases. The petitions are filed with the court and then served on the district attorney for their review. The district attorney will read the petition, review their file, and run a criminal history background check. Then, the district attorney will decide whether to object to/oppose the petition. Whether the district attorney opposes the petition is the most important factor for the result. If there is no opposition, the petition is almost always granted without question by the judge. If there is an objection, the defense will have to argue the case and while the judge can still grant the petition to dismiss, the outcome is less certain.
When does the defense learn if the district attorney is objecting to the petition to dismiss?
In Alameda County, the defense attorney or self-represented party will learn the district attorney’s position at the beginning of court on the hearing date. At that time, the judge will read all the names of the petitions for which there was no objection. These petitions will usually all be granted, and the person can stay in court to pick up their signed order or get it from the clerk later. In Contra Costa County, the district attorney sends an email to the attorneys and judge the afternoon before the hearing with a list of which cases are opposed. If the case is on the non-opposition list, the hearing will be taken off the calendar and the clerk will mail the order to the attorney or self-represented party. Meanwhile, in San Mateo County, the district attorney files a formal pleading (document) with the court two to three weeks ahead of the hearing date explaining their position and the reasoning for their position. The good thing about the San Mateo County process is that it gives the petitioner or their attorney a chance to respond to the alleged deficiency by filing a response that explains why the district attorney’s concern should not result in denial of the petition. Thereafter, the district attorney will either withdraw their opposition and the judge will sign the order without a hearing, or the opposition will remain, and the case will go to a contested hearing where the case will be argued.
Sometimes petitions to dismiss or other clean record petitions filed by self-represented parties have obvious deficiencies which result in a district attorney objection. For instance, in a driving under the influence conviction, most courts will not grant the petition without a declaration (signed statement by the petitioner) providing evidence for why the petition should be granted in the interests of justice. In Alameda County, when a petition has deficiencies that can be cured, the court will grant a continuance of a month or several months to add a declaration. In San Mateo County, a lawyer could add the declaration after the opposition is filed and before the scheduled hearing, possibly resulting in withdrawal of the opposition. That is one benefit of a procedure where the district attorney’s position is known a few weeks ahead of the hearing. Of course, it is best to file a petition with all the needed information the first time.
As explained above, the position of the district attorney is the single most important factor in obtaining a dismissal. If there is no opposition, in most cases the judge will sign the order without any arguments needed. Fortunately, in the San Francisco Bay Area counties of Alameda, Contra Costa, San Mateo, and Santa Clara the district attorneys and probation departments are reasonable with properly prepared petitions and use objections sparingly. Nonetheless, it can be helpful to have a lawyer like Mr. Reagan guide a petitioner through the process or repair a deficient petition that resulted in an objection or make sure the petition is in a good position to move forward without opposition. With an office located in Dublin and experience handling clean record cases in all the Bay Area counties, contact clean record lawyer David Reagan for a free consultation.
