The state of California empowers those who were arrested yet never convicted of a crime to seal their arrest record. State law grants record sealing as the right of every resident in the Golden State. Sealing a record that has one or several arrests is an important first step in clearing your name and ultimately returning your life to normal. Once your record is sealed, your arrest(s) will not appear on the vast majority of criminal background checks conducted in California. Only those who work for certain government agencies and law enforcement will be able to delve into your sealed arrest record.
CALIFORNIA’S NEW RECORD SEALING LAW
The Golden State passed a new bill last year known as California Senate Bill 393. Governor Jerry Brown inked his name on the law in October of 2017. Numerous California Penal Code sections now codify SB 393. Of particular importance is California Penal Code 851.87 PC. This penal code empowers California residents to seal their arrest record as a matter of right in the following instances:
- An arrest occurred yet no criminal charges were filed
- Criminal charges were filed following the arrest but subsequently dismissed
- The defendant was determined to be not guilty by a jury of his peers
- The conviction was subsequently overturned or vacated on appeal
- The defendant finished a pre-trial diversion program or pre-sentencing program. Examples of such programs include the Prop 36 drug treatment and Penal Code 1000 deferred entry of judgment.
RECORD SEALING EXCEPTIONS OF NOTE
If the individual arrested has a string of arrests or convictions for child abuse, elder abuse or domestic violence, the request for sealing might not be granted. However, it is possible to seal the arrest record if the judge determines such a sealing is in the interest of justice.
ARRESTED? HERE’S WHY YOU SHOULD SEAL YOUR ARREST RECORD
You have everything to gain and just about nothing to lose by having your arrest record sealed. Though many people do not know it, arrest records are available to the public. Anyone with some spare time, a few dollars and a web-connected computer can access another individual’s criminal history. Just about everyone from romantic flames to insurance companies, state licensing groups, landlords and potential employers can conduct a criminal background check on another person. These parties typically do not care if the arrest was baseless or warranted. Nor do these parties care if the arrest resulted in a conviction. The mere fact that you were arrested in the past is enough to shape their opinion of your merit as a prospective hire, tenant, applicant and party to insure.
Though California has passed the “ban the box” law as detailed in AB 1008 to stop employers from considering a prospective hire’s arrests that did not lead to a conviction, plenty of employers will dismiss candidates simply because of a single arrest that occurred years or decades ago. The worst part is such employers will never admit to removing candidates with an arrest record from conviction. The solution is to seal your arrest record under PC 851.87. Once your record is sealed, the public will not be able to view it. The court records, arrest record, photos, police investigative report and your fingerprints cannot be accessed but for limited use by California or criminal justice agencies in the state.
Prior to California’s enactment of SB 393, it was challenging for an individual with an arrest record to seal his or her record. The old law required the demonstration of factual innocence to the judge even if the prosecutor failed to file charges or if the charges were subsequently dismissed. The arrest appeared on the criminal background checks conducted by prospective landlords, employers and other parties, allowing for egregiously unfair discrimination against those who did not commit crimes. California’s new law allows those who prove to the judge the arrest did not cause a conviction to seal their record. Though the prosecutor might attempt to demonstrate the individual in question is not entitled to a record sealing, sealing is usually granted.
RECORD SEALING VS. RECORD EXPUNGEMENT
It is important to note the distinction between those arrested and those arrested and subsequently convicted. Arrests that did not cause a conviction are eligible for sealing. Those convicted of a crime might be able to obtain a conviction expungement through California’s Penal Code 1203.4 PC. However, expungement is more difficult to obtain as there is either a guilty plea, a “no contest” plea or a criminal conviction.
RECORD SEALING IS NOW A MATTER OF RIGHT IN THE STATE OF CALIFORNIA
Prior to 2017, record sealing was guided by the state’s Penal Code 851.8 PC. This antiquated law mandated the individual arrested was tasked with proving he or she was factually innocent. The passage of SB 393/PC 851.87 moves the burden of proof away from the defendant and onto the prosecutor. The prosecutor is tasked with proving the petitioner is not entitled to a record sealing. As an example, some prosecutors will argue the potential for charges to still be filed and/or a pattern of illegal activity should preclude a record sealing. The bottom line is nearly every single resident of the state of California is legally entitled to seal his or her arrest record as a matter of right. As long as the arrest did not lead to a conviction, no exceptions are applicable.
WHAT BARS A CALIFORNIAN FROM HAVING HIS OR HER ADDRESS RECORD SEALED?
The state of California bars residents from having their address record sealed if any of the following are true:
- It is still possible to charge him or her with one or multiple offenses on which the original arrest was based.
- The original arrest was for murder or another type of crime for which a statute of limitations does not exist. However, if the defendant was subsequently determined to be factually innocent of the charge or acquitted, he or she will be eligible for record sealing.
- The individual evaded efforts to prosecute the arrest by partaking in identity fraud then charged with another crime for allegedly committing identity fraud.
- The individual was not originally charged as he or she evaded efforts by law enforcement to prosecute the arrest. As an example, leaving the jurisdiction prior to being charged qualifies as law enforcement evasion.
THE FEW SITUATIONS IN WHICH A SEALED ARREST RECORD CAN BE ACCESSED IN THE STATE OF CALIFORNIA
Meet with our attorneys to have your record sealed and it will be effectively destroyed for the vast majority of purposes. However, a sealed record does not completely cease to exist. A sealed arrested can be pleaded or proved if you are prosecuted for another offense following the original arrest. Furthermore, a criminal justice agency might obtain and disclose your arrest to those who work in law enforcement. This occurs during the regular course of duties and ultimately yields the same result as would have occurred if the record were not sealed in the first place. Let our legal team seal your record and you will not have to worry about non-governmental parties accessing your record and learning about your arrest.
Aside from the remote possibility of access noted above, record sealing will not provide relief from some highly specific obligations. As an example, your record sealing will not provide relief from an existing duty to disclose your arrest as mandated by state law in response to a direct question when applying for positions such as peace officer and public official. Furthermore, there is an obligation to disclose the arrest when requesting licensing by a local or state agency or a contract with California’s State Lottery Commission.
Furthermore, sealing an arrest is strictly applicable to the specific arrest you are contesting. Sealing your record will not erase your full criminal record. The vast majority of people are required to submit a distinct petition for every single arrest on the record that did not lead to a conviction.
CALIFORNIA’S RECORD SEALING AND DESTROYING PROCESS
The record sealing process commences with a filing of the petition to seal an arrest with the court. This petition must be filed in the court where the charges tied to the arrest were initially filed. Alternatively, if charges were never filed, the petition to seal the arrest must be filed in the city or county where the arrest occurred. California law mandates the petition be served on the prosecuting attorney of the county or city where the arrest occurred as well as the law enforcement agency that performed the arrest. The petition to seal the arrest must contain specific information or it will not be considered by the court. The required information is as follows:
- The name and birth date of the petitioner
- The county and city in which the arrest occurred
- The date of the arrest the petitioner would like sealed
- The name of the law enforcement group that performed the arrest
- Additional information that identifies the arrest, be it a court number or case number
- The supposed offenses that serve as the basis upon which the arrest was made or charges filed
A statement indicating the petitioner is permitted to seal his or her arrest record as a matter or right or for the sake of justice. A petition based on the interests of justice requires a statement as to how such interests will be served with a granting of the petition. Supporting declarations are also required.
THE RECORD SEALING HEARING IS NOTHING TO FEAR
There is a chance the district attorney will contest the petition to seal your record. If the district attorney takes this route, a hearing will be scheduled by the court. Your county of residence dictates whether you are required to personally appear before the judge in a court of law for record sealing proceedings. Our attorneys can appear on your behalf in some California counties. Once the hearing is underway, the judge analyzes the arrest record along with evidence of why sealing your record will promote justice.
The judge decides if the motion to seal and destroy a California arrest record is granted or denied. The judge is empowered to deny the motion with prejudice so there is no need to re-file the request. This is precisely why you need a savvy and experienced California record expungement and record sealing attorney on your side. Our legal team is here to analyze your case in-depth, perform the appropriate research and guarantee all the nuances of the court-mandated paperwork are completed correctly on the first attempt. This is the attention to detail and expertise necessary to ensure all forms are filled out to perfection. Our record sealing attorney will conduct the PC 851.87 hearing and fiercely advocate on your behalf in front of the judge.
THE TIMETABLE FOR SEALING A CALIFORNIA ARREST RECORD
California’s Penal Code 851.8 states individuals have merely two years to petition to seal an arrest record from the date of arrest or the date upon which charges were filed. Penal Code 851.87 does not apply a time limit to petition for the sealing of an arrest record. The only caveat is this new law has yet to be challenged in court. Our legal team recommends filing the petition to seal the arrest as soon as the prosecutor can no longer file charges or refile charges. Your best course of action is to meet with our California record sealing attorneys to help you determine the optimal time to file for relief.
In general, it takes about three months to seal an arrest record after the petition is filed to obtain the court order. The court must notify several parties within 30 days of the issuance of the order to seal the arrest record. These parties include:
- You. It is your arrest being sealed so you will be notified as soon as the issuance to seal your arrest record is provided
- The law enforcement agency responsible for the administration of master criminal history records
- The law enforcement agency that made the arrest
- Law enforcement agencies that participated in the arrest
- Any criminal justice agency that will use the information
- The California Department of Justice
Once these parties are notified, your court record and master criminal record are subsequently updated to note the arrest is sealed. The file is then stamped and the record will not be released beyond the criminal justice sector. The appropriate local law enforcement agency is responsible for ensuring this information is noted in each master copy, whether it is in paper form, digital or another form. Furthermore, the local law enforcement agency in question must also ensure the information is included in the police investigative report tied to the sealed arrest.
THE DIFFERENCE BETWEEN SEALING JUVENILE RECORDS AND ARREST RECORDS
Sealing and subsequently destroying an adult’s arrest record through PC 851.87 is different from the process required to seal a juvenile record. An individual can seal a California juvenile criminal record if the following conditions are met:
- No civil litigation is pending from the juvenile incident in question.
- The individual has not been convicted of crimes involving immoral behavior or dishonesty as an adult. Such crimes are known as crimes of moral turpitude.
- The individual is currently considered of adult age or the juvenile court jurisdiction was terminated a minimum of five years ago.
LEGAL RECOURSE FOLLOWING THE RELEASE OF A SEALED ARREST RECORD
Legal remedies are available if your sealed arrest record is released. There is a civil fine ranging between $500 to $2,500 for the illegal dissemination of a sealed arrest record. This penalty is enforced by the district attorney, a city attorney or even the Attorney General. Furthermore, the release of a sealed record also opens the door to file litigation for compensatory damages. In some cases, it is possible to bring a lawsuit to recover punitive damages. Punitive damages are typically available if the release of the sealed criminal records was intentional, wanton or reckless. Our California record expungement and record sealing attorneys are here to help you make the most of these options for legal recourse.
CONTACT OUR RECORD EXPUNGEMENT ATTORNEYS NEAR YOU TO SEAL YOUR RECORD
If you have even the slightest interest in putting your past behind you, reach out to Record Expungement Attorney. We will seal your record so you can enjoy a fresh start on life. Give us a call at 714-587-5907 to schedule an initial consultation.