If you were arrested but you never faced conviction, California law allows you to have your arrest records sealed automatically as a matter of right. Upon sealing of your arrest record, the documents will no longer show whenever someone runs a background check on you. Your arrest records will only be available to the law enforcement sector. Record sealing in California dates back to Senate Bill 393 approved by the then California Governor Jerry Brown on October 11, 2017. Currently, the California PC 851.87 outlines the right of record sealing. California Criminal Lawyer Group can advise and guide you on record sealing of your past criminal activities as long as you did not face a conviction for the offenses.
Importance of Record Sealing
If you faced a prior arrest for criminal activity, but you were not convicted for the offense, it is advisable to seek record sealing as provided under California law. Typically, arrest records in California are public, and any person can access them on public databases. All that a person needs to be able to access your arrest record is your name and your date of birth. Criminal history hurts your future. For instance, when you are seeking employment, potential employers are likely to run a background check on you. If a prospective employer realizes that you had faced an arrest for committing a criminal activity in the past, he/she may be hesitant in hiring you.
A poor arrest record may also affect your ability to acquire state licensing in California. Poor credit history may also affect other areas of your life. For instance, potential dating partners may run a background check on you, and a previous arrest record may deter them from associating with you. Insurance companies are also fond of running background checks on policyholders. These parties will never understand that your arrest was unfair or that it did not result in a criminal conviction. They will only see your adverse criminal history.
According to California law AB 1008, Fair Chance Act, it is unlawful for employers to consider past arrests of a job applicant if the arrests did not result in a conviction. The law under AB 1008 goes by the name ban the box law. However, some employers do not disclose to applicants the reasons for their unsuccessful job applications. Therefore, an employer may dismiss your application based on your past arrest without letting you know. Consequently, you will have no basis for suing the employer for discriminating against you because of your previous arrests.
Sealing of your credit record will offer you many benefits because the members of the public will no longer be able to see your past criminal history. Therefore, you will never face discrimination because of your criminal past. Your arrest records, including arrest records, court records, photos, fingerprints, and police investigative reports, will only be available to limited state authorities and criminal justice agencies.
Before the passing of SB 393 bill, it was hard for a person arrested in the past but not convicted to have his/her records sealed. For arrest record sealing, the applicant had to avail of a petition seeking factual innocence following the PC 851.8. Record sealing was hard even if the prosecutor did not file charges and even if the court later dismissed your charges.
Your arrest record would appear on criminal background checks and ruin your chances of getting jobs, licensing, and tenancy. This would lead to unfair and undeserved discrimination against innocent people.
After the enactment of SB 393, all that you have to do is show in court and prove to the judge that your past arrest did not result in a criminal conviction. The prosecutor will have the burden of proving that you do not deserve to have your arrest record sealed. For instance, the prosecutor may point out that you have a background in domestic violence to show that you do not qualify for record sealing.
Eligibility for Record Sealing
According to California PC 851.87, you have a right to record sealing as long as your past arrest did not lead to a criminal conviction.
How can you show proof that your arrest did not result in a conviction?
You have no criminal conviction if it is evident that the prosecutor did not file any charges and if all the statute of limitations on your charges has expired. You qualify for sealing if the prosecutor filed criminal charges against you, but the court later dismissed your charges, and it is not possible to re-file the charges. The court may also have dismissed your arrest records after the passing of the motion under PC 995.
You are also eligible for record sealing if the prosecutor files charges against you, your case proceeded to trial, but the court acquitted your charges after finding you not guilty. You may also have faced a criminal conviction, but the court reversed or vacated your conviction after you filed for an appeal, and it is not possible to re-file your charges.
If the court dismissed your charges after you completed a pretrial or pre-sentencing program such as California drug diversion program, it is critical to note that only arrests that did not result in criminal convictions qualify for record sealing. If you faced a criminal conviction and the court did not later dismiss your charges, you are ineligible for record sealing.
You do not have to give up if you do not qualify for record sealing. You may apply for expungement of your arrest record following California PC 1203.4. However, the expungement process is more complicated than the sealing of arrest records because the defendant has already pleaded guilty to the crime.
Sealing an Arrest Automatically or as a Matter of Right
Sealing of an arrest record, as a matter of right, means that you will not have the burden of proving that you are factually innocent. According to the old law under PC 851.8, you had an obligation to prove that you are factually innocent after an arrest. With the enactment of SB 393, the burden of proof shifted from the arrested person to the prosecutor. It is upon the prosecutor to prove in court that you are not eligible for record sealing. The prosecutor may argue that it is still possible to re-file your charges. The prosecutor may also point out that you have a pattern of committing the crime of domestic violence. Everyone in California has the right to have their arrest records sealed automatically according to California law. There is only one qualifying factor; the arrest should not have resulted in a conviction, and no exceptions, such as domestic violence, should exist.
Ineligibility to Record Sealing in California
In some instances, you may not qualify for record sealing under California law. You may not be eligible for record sealing if it is evident that you may still face charges for the crime on which your arrest was based. If your arrest was for the crime of murder or another crime that does not have statutes of limitations, you might not qualify for record sealing. You may only be eligible if the court acquitted you or you proved that you are factually innocent of the charges.
Even if you did not face charges or conviction for a criminal offense, you might not be eligible if you evaded the efforts of law enforcement officers to prosecute the arrest. For instance, you may not qualify if you absconded from the jurisdiction.
You may not qualify for record sealing if it is evident that you engaged in identity fraud and evaded the efforts to prosecute the crime. You are not eligible if you later faced charges for the crime of committing identity theft.
If your arrest record shows a pattern of certain offenses, you may not be eligible for arrest record sealing. For instance, if your arrest record shows patterns of elder abuse, domestic abuse, or child abuse, you may not be eligible for record sealing. According to the law, a pattern comprises of several convictions of the same offense. For instance, you have a habit of committing a crime if you record more than two convictions of the same crime within three years. If you record more than five arrests for a crime within three years, you have a pattern for the crime.
However, even if your arrest record shows a pattern of domestic abuse, child abuse, or elder abuse, you may still apply for record sealing. You may apply for record sealing if it serves the interests of justice. The judge will consider several factors to determine whether sealing your record will serve the interests of justice. The judge will consider the hardship of the applicant resulting from the arrest, which is the subject of the application/petition. The judge may also seek some evidence or declarations regarding your good character. The judge will consider any evidence or testimony regarding your arrest and any record of your conviction.
Using a Sealed Record in California
Upon sealing your arrest records, the records will no longer be available to the public but may be available to the state authority and law enforcement officers. Your record will not serve any purpose upon sealing. However, it is essential to note that sealing an arrest record does not mean that the record will entirely cease to exist. It is possible to plead and prove your criminal you face a subsequent prosecution for another arrest.
In the regular course of its operations and duties, the criminal justice system may occasionally access and disclose your sealed arrest records to other law enforcement agencies. To the criminal justice and law enforcement agencies, your record will exist.
Limitations of Record Sealing
Record sealing offers a wide range of benefits. However, sealing may not provide you relief in some situations. For instance, the sealing of your records will not relieve you from registering as a sex offender in line with the California PC 290. If you have a legal prohibition or ban against holding a public office resulting from your arrest, record sealing will not terminate the probation. Record sealing will not relieve you from a legal ban against possessing or owning a firearm. You will also not get relief from susceptibility to conviction for violation of California law regarding felon with a firearm law.
Even after your record sealing, you will still be under the obligation to disclose your past arrest according to the requirements of the law. You are supposed to disclose your arrest in response to a direct question while applying for a position in public office. The disclosure is also necessary when you are making an application for employment as a peace officer and when applying for licensing by any local or state agency. You will also have to disclose your arrest when signing a contract with the California State Lottery Commission.
It is important to note that the sealing of your arrest record will only apply to a single arrest, which you are contesting. It does not mean that record sealing will erase your entire arrest record. It is essential to submit a separate petition for record sealing for each arrest on your record, which did not lead to a conviction.
Timeline for Applying for Record Sealing
In the past, the California PC 851.8 had set a period of two years from the later of your arrest or filing of charges to present your petition to seal your arrest record. However, according to PC 851.87, no set limit within which you should file a petition for record sealing exists. However, the new law is yet to be tested in court.
It is advisable to apply for record sealing as soon as it is evident that it is not possible for the prosecutor to re-file-file your charges. You may seek the help of a criminal defense attorney to help you determine your eligibility to file for relief.
Record Sealing Process
The first step in the record sealing process entails filing a petition with the court. You should submit the petition in the court that handled charges relating to your arrest. If the prosecutor did not file charges against you, the request should be in the county or the city in which the arrest took place. You must legally file the petition on both the prosecuting attorney of the county or the city where the arrest took place. You must also submit a record sealing petition with the agency that made your arrest.
Your petition for record sealing should include specific information, including the date of your arrest for which you are seeking the sealing. In the petition, you must clearly outline the county and the city where your arrest took place. You have to disclose the name of the law enforcement agency responsible for your arrest. Include any other information, which may make it easy to identify the arrest, including the court or the case number.
Your petition should also contain a statement outlining that you deserve, or you have a right to record sealing as a matter of right. You may also state that sealing your record is in the interests of justice. If you are basing your petition on the interests of justice, ensure that you outline how granting the petition would serve those interests.
The court may schedule a petition hearing if the District Attorney contests the petition for record sealing. You may appear in court in person or have your criminal defense attorney appear on your behalf. The county in which you will live is responsible for determining whether you or your attorney should appear in court for the petition hearing. During the hearing, the judge will evaluate several factors, including your arrest record. The judge will also examine the evidence explaining why the sealing of your record is in line with the interests of justice.
It is imperative to have an experienced criminal attorney by your side when applying for record sealing. The judge has the discretion to decide whether to grant your motion to seal your records or deny the motion. The judge may deny you the motion with prejudice that you should not re-file your request. For you to enhance the chance of succeeding in the first attempt, it is crucial to have an experienced attorney by your side.
The attorney will offer you valued counsel and research your case thoroughly. The attorney will also ensure that all the necessary paperwork is available and that the paperwork is well organized. You will not waste any time while filing for the petition, and there will be no risk of incomplete forms. The attorney will also represent you during the PC 851.87 hearing and argue the case on your behalf.
Completion of Record Sealing
After filing a petition for record sealing, it may take around ninety days to have a court order to seal your record in California. Upon issuing the order to seal your arrest record, the court will notify several parties within ninety days. The court will issue a notice to the law enforcement agencies responsible for making or participating in your arrest. The court will also issue a notice to the law enforcement agency responsible for administering your master criminal history records. The court will also notify the California Department of Justice.
There will be an update of your master criminal record and your court record to indicate the sealing of your arrest record. There will be a stamping on the file and a disclaimer that the record may not be released or issued to other parties or databases outside the criminal justice sector.
The local law enforcement agency will ensure there is an update of record sealing information on all master copies, including the digital copies. The enforcement agency also facilitates the sealing of the police investigative report relating to your arrest.
Your arrest records, court records, and police investigative reports will not be accessible by any other party except you and the criminal justice agency. The agency is free to use your arrest information even after the sealing as long as it is necessary.
Remedy for Release of Sealed Records
Upon sealing of your arrest record, you have a right to report improper dissemination of your sealed records. The release of sealed records is punishable by a civil penalty ranging from $500 to $2,500 for every violation. Several parties may enforce the penalty, including the district attorney, city attorney, or the Attorney General.
If there is improper dissemination of your sealed arrest records, you have a right to bring a lawsuit and seek compensatory damages. If you feel that the release of your records is intentional or reckless, you may file for punitive damages.
Upon the sealing of your records, you have a right of discretion of the records, and no party should violate this right. This will help to prevent discrimination based on past arrests that did not result in a conviction. You will be free to seek employment, apply for state licensing, and seek tenancy at ease.
Juvenile Record Sealing
The process of destroying and sealing of adult arrest records, according to PC 851.87, is different from the destruction and sealing of juvenile records. The eligibility for suing your juvenile records in California may exist if you are currently an adult or if the jurisdiction of the juvenile court ended at least five years ago. To seal your juvenile records, you should not be facing convictions of any crimes involving moral turpitude as an adult. A crime of moral turpitude refers to a crime that involves immoral behavior or dishonesty. You can also apply for juvenile record sealing if no civil litigation based on the juvenile incident is pending.
Contact California Criminal Lawyer Near Me
The process of sealing and destroying your arrest records can be complicated and typically involves a hearing before a judge. The judge is under no obligation to grant you the petition unless you prove that you deserve and qualify for record sealing. It is, therefore, essential to have an experienced attorney by your side throughout the process. California Criminal Lawyer Group is available to you to discuss your case and answer any questions you may have. Contact us at 408-622-0204 and speak to one of our attorneys.