Reducing the Effect of a Conviction

By Jerrold M. Bodow

Hiding a conviction from a potential employer by lying about it on an application is tantamount to placing a time bomb in one's personnel record. People have been summarily dismissed when a conviction has been discovered, even beyond any "probationary period" of employment. The decision to fire can be based upon either the nature of the conviction itself or the fact one has lied on an application for employment.

California law provides a process which can substantially reduce or eliminate the effect of a prior conviction upon a job application. The legislative scheme provides a three-step process: first, a petition to set aside the conviction and order the charge dismissed under Penal Code Section 1203.4; second, a request for a certificate of rehabilitation; and last, a request for a pardon. In most cases, especially with misdemeanors, one need only consider the first step. A wise attorney utilizing this process for a client convicted of a felony will also include a motion to first reduce the felony to a misdemeanor, then dismiss it. In general, the court will hear the motion within 30 to 45 days of the application. After relief is granted, one must still divulge the conviction if applying for public office, licensure by any state or local agency, or if contracting with the California State Lottery.

After the petition is granted, the job applicant may choose to still divulge the record, but could also honestly claim the conviction was set aside and the case had been dismissed. If the employer discovers and investigates the record (which might occur in a standard employment check), the employee would not have lied and will have substantially enhanced his/her employment possibilities or job retention.

A certificate of rehabilitation or a pardon each restore to the applicant more of the rights of citizenship which were forfeited as a result of a felony conviction. These have to do with serving as a trial juror, enhancement of the chance of becoming licensed by state boards, becoming a probation officer, restoring firearm rights, and certain rights which apply to sex offenders.

If one is still on probation when wishing to apply for employment, an additional motion to terminate probation early is appropriate. In San Diego, the courts are entertaining and granting this motion in many cases. One must have fulfilled the conditions of probation to that point, have fully paid any outstanding restitution or fines, and have completed or have kept up to date on attendance in any programs they were ordered to attend as part of their probation. Most important, the applicant must have completed one-half of the original period of probation. The two standard periods or probation are three years and five years.

Jerrold M. Bodow is an attorney who has been practicing law in San Diego since 1978. A former presiding deputy of the criminal division of the City Attorney's Office, Mr. Bodow, since leaving that office, has maintained a practice which includes assisting people charged with both felonies and misdeamors. Contact Mr. Bodow at his office at (619) 231-0724.