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My son has a dv felony. He completed all his classes and saw…

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My son has a dv...
My son has a dv felony. He completed all his classes and saw the judge re expungement and was told to try back in June of 2013 He will have served half his prob). In the meantime, he applied for a job here in So Cal and was turned down due to background check even though he was up front and honest. He doesn't want to lie on job apps and cause any problem with probation. He has dual Cdn/US citizenship. If he applied for a job in Canada would they check or consider his US felony in evaluating whether to hire him. He is 34 and wants to get on with his life. He recently graduated and got his bachelors degree. Pls adv
Submitted: 6 years ago.Category: Employment Law
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Answered in 1 hour by:
2/17/2012
Employment Lawyer: djylaw,
 replied 6 years ago
djylaw
Category: Employment Law
Satisfied Customers: 6
Verified

djylaw :

Here in lies the problem with filing a motion pursuant to 1203.34 of the Penal Code which is what most refer to as an expungement. He must complete probation before he is eligible. If he has not completed probation, he must attempt to have his probation terminated early via a motion. Judges will consider it if he has served 1/2 of his probationary term and he has good cause. So he would first have to file the motion for early termination, if granted then he can file a motion to vacate his plea and enter a dismissal (1203.4 motion). The real problem and what most people don't understand is that a 1203.4 motion does not really erase his criminal record. If the 1203.4 motion is granted and iIf someone where to conduct a check with the Department of Justice his record would show an arrest, conviction and the a dismissal. It does not hide the conviction. Also, if he was convicted of a domestic violence charge that can be prosecuted as either a felony or misd (known as a wobbler) he will want to file a motion to reduce the felony to the misd and then file the motion to vacate and set aside his conviction. That way he can say he was convicted of a misd and it always looks better.

djylaw :

I meant 1203.4 not 1203.34

Customer :

He saw the judge a few months ago and was told to come back in June of 2013 (1/2 prob will have been served) and he (judge) wouls see what he could do about reducing to a misdemeanor and expungement. I guess in the meantime he will have to say yes to the felony on any job applic and hope someone will give him a break. Do you know of any companies or job types that might be more leniant? He has a bachelors in Electronics and computer engineering from ITT Tech in CA.

djylaw :

No, I'm sorry I don't know which companies in that field would be more lenient. He justs need to be honest and open with the employer and hopefully they will give him a chance. We all make mistakes and perhaps an employer will realize that and give him a chance.

Customer :

Is it discrimination if they refuse to employ because of record even though he was upfront and honest re conviction?

djylaw :

No. In order for someone to have a discrimination claim they need to be part of a protected class, ie race, religion, sex, age. However, I was told that they cannot refuse to hire if the conviction has nothing to do with the job but I am not an employment attorney

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