So you had a brush with the law in the past, a mistake that left you with an arrest record. Now you’ve probably learnt the hard way that with this record hanging over your head, it is really hard to get a job, enroll for college, get a lease, or get approved for a professional license.
The sad reality is that arrest records are public records, meaning that anyone can access them, from prospective employers, state licensing agencies, insurance companies, and apartment owners, to college administrators and even potential dating partners. With a not-so-good history, your chances of getting an approval in all these circumstances are next to zero. This is regardless of whether your past arrest was justified or not.
Good news is that there are several ways in which you can leave your past behind and start on an almost clean state. One of them is record sealing. In California, there is a law that permits people who were arrested – but never convicted – to have their arrest records sealed as a matter of right. Once sealed, a record cannot show up on most of the criminal background checks, save for law enforcement.
What Sealing an Arrest “As a Matter of Right” Actually Means
If you were arrested under the old law (Penal Code 851.8 PC), you had the burden of proving that you were factually innocent. Under the new law (SB 393/PC 851.87), all you need to do is to demonstrate to a judge that your arrest didn’t result in a conviction. The prosecutor is then burdened with the task of proving that you are not entitled to have your record sealed.
Once your arrest record is sealed under this new law, members of the public can no longer access it. Your credit record, fingerprints, photos, court records, and police investigative reports will all be inaccessible, except for limited use by the criminal justice system or the state of California.
What’s the Difference between Record Sealing and Expungement?
Firstly, record sealing can only occur when you were only arrested, but not convicted. On the other hand, expungement occurs when you were arrested and convicted. Secondly, record sealing ensures that all records that relate to your case, including your arrest record, court records, and police investigative records, are made inaccessible by any member of the public.
On the other hand, expungement doesn’t limit access to the records relating to your case, meaning that any member of the public can obtain your records even if it has been expunged. The benefit with expungement is the relief that comes from having your formal record reflect that your conviction was dismissed, and that you can legally state that you have never been convicted when filling in employment applications.
Who is Eligible for Record Sealing?
Today, most people with an arrest record in California are allowed to have their records sealed. There’s one condition though – that the arrest didn’t lead to conviction. There are various circumstances in which an arrest may not necessarily lead to a conviction, including when:
- No criminal charges were filed,
- Criminal charges were filed but later dismissed,
- You were acquitted (found not guilty) in a jury trial,
- Your conviction was vacated or overturned on appeal,
- You successfully finished a pretrial diversion or a pre-sentencing program.
Who is Not Eligible for Record Sealing?
You are not eligible to have your arrest record sealed in case any of the following applies:
- You are still charged with the offense that you were arrested for,
- You were arrested for murder or another serious crime for which there is no statute of limitations,
- You were not charged because you intentionally dodged law enforcement efforts to prosecute your arrest, such as by abandonment from the jurisdiction,
- You eluded efforts to prosecute the arrest by getting involved in identity fraud and were consequently charged with a crime for that act of identity fraud.
You are not entitled to record sealing in California as a matter of right if your record shows a pattern of domestic violence, elder abuse, or child abuse. Under the new code, a “pattern” is defined as at least 5 arrests, or at least 2 convictions within a 3-year period. Nevertheless, if you fall into this category, you can still petition to have your records sealed on the basis that doing so would serve the interests of justice.
When determining whether sealing your arrest record serves the interests of justice, a judge may consider any pertinent aspects, including (but not limited to):
- Declarations or evidence in relation to the arrest,
- The petitioner’s record of convictions,
- Declarations or evidence in relation to the petitioner’s good character,
- Hardship to the petition caused by the arrest that’s the subject of the petition.
Is there a Deadline for Moving to Seal your Record in California?
Under the old California law, people with arrest records had only 2 years from the date of their arrest to seal their arrest record. Under the new law, there’s no deadline for moving to seal a record. Nevertheless, it is recommended that you can submit your request to have your record of arrest sealed as soon as it is no longer possible for the prosecutor to file or re-file charges. At Record Expungement Attorney, we can help you determine when you are eligible to file for record sealing.
What is the Process for Record Sealing in California?
The process for sealing a record in California involves the following steps:
- Petition Filing with the Court
To successfully make a petition to seal your arrest record in California, you must file either in the county or city in which the arrest took place, or the specific court in which charges based on your arrest were filed. You must then serve the petition legally to the law enforcement agency that made the arrest, as well as to the prosecuting attorney of the county or city in which the arrest took place. The information to be included in the petition includes:
- Your name and date of birth,
- The date of your arrest,
- The county and city where the arrest occurred,
- The name of the law enforcement agency that made your arrest,
- Any relevant details that identify your arrest, such as the court or case number,
- The alleged crimes upon which the arrest was based on,
- The alleged crimes upon which the charges were filed,
- A statement that you are entitled to have your arrest record sealed either as a matter of the interest of justice or as a matter of right.
The record sealing process is quite intricate, thus unwise to attempt it on your own. There is a lot of paperwork that needs to be accurately done and filed within certain deadlines. Furthermore, there are numerous legal requirements that are too complex for a novice to comprehend. Without prior experience, it is easy for you to make a misstep that can cause further delays or even result in the judge’s denial to grant your request to have your records sealed.
One of our responsible attorneys will thoroughly research your specific case and ensure that all paperwork is done properly the first time. This is to ensure that no time is lost as a result of inadequate or incomplete forms.
Once all paperwork has been submitted to court, the district attorney or prosecuting agency has the right to contest the record sealing. Although this does not happen often, it is still a possibility, thus advisable for you to be well prepared. Our experienced attorneys are capable of countering any contestation with strong arguments as to why your record sealing should be granted.
- The Hearing
In case the prosecuting agency or DA decides to contest your petition, the court will schedule a hearing. Your county will then decide on whether your criminal defense attorney can appear in court on your behalf, or whether you will have to personally appear for the proceedings. During the hearing, the judge will assess your arrest record and, if necessary, the evidence of why sealing your record is in the interests of justice.
At this point, it is up to the judge to either grant or deny your motion to seal your arrest record(s). Since the judge can deny your motion with prejudice such that you may not re-file your record sealing request, it is very important that you hire a highly competent California criminal defense attorney. At Record Expungement Attorney, we take on even the seemingly impossible-to-win cases, work diligently on them and successfully have our clients’ motions granted.
How Long Does the Record Sealing Process Take?
To seal an arrest record in California, it will typically take approximately 90 days from the date you filed a petition. With a competent attorney, the process can be flawless and can be completed within the shortest time possible. If you don’t want to drag this process longer than it is necessary, it is advisable that you hire a competent criminal defense attorney.
In addition to having a high academic achievement in the relevant fields, attorneys at Record Expungement Attorney are also well seasoned professionals. Unlike many others that use half-baked strategies, we implement tested and proven methods. Our diligent attorneys have deep and diverse legal expertise that full covers all aspects of California record sealing.
What Happens After the Court Grants your Petition to Have your Arrest Record Sealed?
Within thirty days of the court’s issuance of the order to seal your arrest record, the court will give notice to:
- You, the prosecution, and the law enforcement agency that made or took part in your arrest, stipulating that your arrest record is ordered sealed.
- The law enforcement agency that oversees the master criminal history records
- The California Department of Justice
An update is then made to the court records and the petitioner’s master criminal record, making a note that your record has been sealed. The file is then stamped stipulating that the arrest record is not to be released to any other sector other than the criminal justice sector.
The local law enforcement agency that oversees the master criminal history records then ensures that the information of the police investigative report associated with the sealed arrest record is incorporated in all master copies, either digital or otherwise. All sealed records, i.e. your arrest record, court records, as well as the police investigative reports shall not accessible by any entity or person except for a criminal justice agency.
What Remedy do you have if Your Sealed Arrest Record is Made Public?
Should your arrest record be improperly disseminated, you may have the right to file a lawsuit for compensatory damages or probably even penalizing damages. A civil penalty of $500-$2,500 can be imposed by the Attorney General, district attorney or the city attorney on the party responsible to the improper dissemination of your sealed arrest record. At Record Expungement Attorney, we offer free, no obligations consultation to those who have incurred damages resulting from unlawful release of their arrest records.
Under What Circumstances can a Sealed Record Be Legally Used?
While record sealing effectively prevents other entities from accessing your arrest record, it doesn’t necessarily mean that the record itself ceases to exist. If you get prosecuted for another offense, your sealed arrest record may be used, i.e. it can be pleaded and proved.
Moreover, a criminal justice agency in California may, in the usual course of its duties, get a hold of your sealed arrest record and disclose the information to another law enforcement agency or agencies just as if the record had not been sealed. Record sealing does also not prevent you from:
- Any existing duty to register as a sex offender pursuant to California Penal Code 290 PC,
- Any legal ban against holding public office resulting from the arrest,
- Any ban against firearm possession or ownership, or vulnerability to conviction for defying the California “felon with a firearm” law,
- The requirement to reveal your arrest as otherwise obligated by law in reply to a direct question on an application for public office, licensing by any local or state agency, employment as a peace officer, or a contract with the California State Lottery Commission.
You should note that sealing your arrest record does not erase your entire criminal record, but rather will apply solely to the specific arrest you are contesting. You are required to submit a separate petition for each arrest on your record that didn’t lead to conviction.
Does Penal Code PC 851.91 Allow for the Destruction of Arrest Records?
This statute clearly stipulates that it does not destroy arrest records and/or court records. It only provides a remedy that ensures that arrest records are not publicized to other members of the public upon a search.
To have your sealed record(s) completely wiped out, you are required to file a petition in court citing factual innocence. Once the judge grants your request, all records in relation to your arrest along with all court documents will be completely destroyed, which means that they will never be accessed ever again by anyone.
If you were arrested, whether rightfully or wrongfully, and your case was ultimately dismissed or rejected in court, then record sealing is a viable option. You obviously want to have your police record cleaned within the shortest time possible. Record Expungement Attorney is the go-to place to many people who need to seal their arrest records in Sherman Oaks, California. We are fully licensed, insured and bonded.
Scheduling a Free, No Obligation Consultation for Record Expungement Near Me
Call us at 805-836-0422 for a free, confidential and no obligation consultation. You can also talk to our competent criminal defense attorney about filing a petition to have your record sealed. Our lines are open 24/7, 365 days a year to ensure that we will be there whenever you need help. You can also come to our local office at 30700 Russell Ranch Road, Suite 250, Westlake Village, California, 91362.
In addition to helping people seal and destroy their records, attorneys at Record Expungement Attorney can offer assistance to those who need to seal a juvenile record, appeal, or expunge a criminal conviction in California. As for those who are not eligible for sealing their records, we can help them with the other available options, including early termination of probation, felony reduction to misdemeanor, and petition for factual innocence.