In October 2017, Governor Jerry Brown signed into law the California Senate Bill 393. This law allows people in California who have been arrested but escaped criminal conviction, to have their arrest records sealed automatically. That means that your arrest record will not appear in criminal background checks performed by potential landlords or employers. However, it will remain available to law enforcement.
Before this bill was enacted, when someone was arrested but the arrest did not conclude in a successful conviction, it was very difficult to have the arrest record sealed. It was up to the individual to prove factual innocence to the judge, despite the fact that a prosecutor never filed charges, or if the charges were dismissed.
That meant that records of the arrest would be listed in background checks, where potential landlords, employers and other people could access it. This led to discrimination against people who were factually innocent. However, this new law allows anyone who can show that the arrest did not result in a conviction to have his or her records sealed. As such, the burden shifts to the prosecutor, who has to show that the applicant is not entitled to a sealed record and provide sufficient evidence to the effect.
This new law has been codified into a variety of penal code sections, such as Penal Code 851.87, which gives you the right to petition that your arrest record be sealed if:
- no criminal charges were filed against you;
- charges were filed and subsequently dismissed;
- you were acquitted after a jury trial;
- your conviction was overturned on appeal, or vacated; or
- you successfully completed your prescribed pretrial or pre-sentencing diversion program, such as Penal Code 1000 deferred entry of the judgment or Prop 36 drug treatment program.
However, some exceptions apply to automatic record sealing, especially if you have a history of heinous crimes, such as elder abuse, child abuse, or domestic violence. Still, a judge may still seal your criminal records if it will promote justice.
Finding competent, experienced legal representation is key to having your criminal records expunged or sealed after a thorough case assessment.
DIFFERENCE BETWEEN CRIMINAL RECORD EXPUNGEMENT AND CRIMINAL RECORD SEALING
Your records can only be sealed under certain circumstances:
- Arrest records can only be sealed if the arrest did not result in criminal conviction. Your attorney can file a motion under Penal Code 851.8 for your arrest records to be sealed only if it is possible to prove that you were factually innocent of the charges upon which your arrest was based.
- If an arrest is effectuated, but the prosecutor does not file charges, your record may be sealed.
- If you were the victim of mistaken identity, the case against you will be dismissed and sealed.
- If the Statute of Limitations has expired, the prosecutor will be prevented from charging you.
- Juvenile records can be sealed in most cases.
Sealing your criminal records provide the highest level of relief available to people who have been arrested, but it is only available for these reasons. Once a judge has granted your request for your records to be sealed, your entire record, including the arrest report, booking photo and fingerprints. For all intents and purposes, it will be as though the arrest never occurred.
Having your criminal record expunged (also known as dismissal) is the only option for relief from an adult conviction. When your record is expunged (different to sealing), your official records will be amended from dismissed to convicted. That means that when a future employer or landlord - and most applications or questionnaires - asks whether you have a past criminal conviction, you may answer that you were never arrested or convicted. Likewise, dismissals will not appear on the majority of employer background checks.
In summary, record sealing is only an option in adult arrests that did not result in a conviction, and for most juvenile criminal records. Adult criminal convictions can never be sealed in California, which means that expungement is the only available relief for that.
There are two ways to seal your arrest records:
PENAL CODE 851.8
Your defense team will have to prove that you are factually innocent, which can be difficult to prove. This defense compels a Judge, Referee or Commissioner to agree that you should not have been arrested in the first place. This request must be filed within 24 months from your arrest date. Your lawyer may request a time waiver if the arrest took place long ago, but this is not recommended.
However, if you are granted a PC 851.8 sealing, records of your arrest will be permanently destroyed and sealed forever. It will not be available on any public databases.
PENAL CODE 851.91
A new law came into effect in January 2018, which simply requires that you demonstrate that you meet the eligibility requirements to have your arrest records sealed and destroyed. To prove that and be granted relief, you must meet the general requirements:
- You must have been arrested in California;
- You must escape conviction as a result of the arrest;
- You were acquitted of all charges;
- If a conviction occurred, it was reversed on appeal.
The Statute of Limitations bars any and all crimes, and the prosecuting attorney may not institute any criminal action based on your arrest. The Statute of Limitations is twelve months for misdemeanor and thirty-six months for a felony.
Some exceptions apply to the general requirements, including:
- The Statute of Limitations has not expired;
- You evaded arrest;
- You used identity fraud as a means to evade arrest;
- You are charged with murder (PC 187).
LIMITATIONS OF RECORD SEALING AND EXPUNGEMENT IN CALIFORNIA
If a judge seals your arrest record, it becomes unlawful for any and all police agencies and courts to publish the arrest. Your arrest record, along with other information will be hidden from public records. It will, however, be visible on Department of Justice records, however, anyone who peruses the records will note that the court granted you relief.
A Petition for Expungement / Dismissal or sealing your arrest will not relieve you from the duty to disclose your arrest and conviction to authorities in response to questions regarding arrests or convictions in any applications for:
- Public office;
- Employment opportunities in law enforcement;
- Local or state agency licensing;
- California Commission of State Lottery contracts.
However, you may lawfully state that you have never been arrested in any other scenario.
BENEFITS OF EXPUNGEMENT AND SEALING OF CRIMINAL RECORDS UNDER PC 851.87 AND SB 393
Due to the fact that criminal records are public, anyone with access to your drivers' license number can access your criminal history, including prospective letting agents, state licensing agencies, prospective employers, insurance companies and potential dating partners. When it comes to hiring someone to interact with their clients, a potential employer may be apprehensive about the potential implications of dealing with someone with a criminal conviction.
To counteract this challenge, California has a "ban the box" law, which was codified in AB 1008, which prohibits employers from allowing a job applicant's prior arrests which did not result in conviction. But it is important to note that a potential employer may not state that as a reason for dismissing an applicant.
Fortunately, by having your arrest record sealed under PC 851.87, only criminal justice agencies in California will have limited accessibility and use of the sealed records. The public will not have access to your:
- arrest records,
- investigative reports,
- court records
- photos, and
If you have been convicted of a misdemeanor or felony in California, you need to file a petition for dismissal (expungement) in order to permanently remove the petition from your record. When you file this petition, the case will effectively be re-opened and the plea of guilt and conviction will be set aside and the case dismissed. It can take between 2-3 months for this process to be completed.
Once the court grants your expungement, the conviction will be replaced with a Penal Code 1203.4 dismissal. That means that you can truthfully declare that by law, you have not been criminally convicted. The charge will be visible on most background checks. However, just because you have been expunged, that does not mean that all your Second Amendment rights have been restored.
Likewise, certain criminal cases, including DUIs and petty thefts are considered priorable. That means that your expunged or dismissed conviction can be revisited if you receive a future conviction. That means that if you commit another crime within a certain time frame, you may receive harsher punishment than you would for a first-time offense. Charges for priorable crimes will remain on your record for a certain time frame. This is particularly relevant to Department of Motor Vehicle crimes, which remain on your record for ten years.
ARE YOU ELIGIBLE TO HAVE YOUR RECORDS SEALED?
It is important to note that the U.S. Federal Government does not recognize expungement, which is a state remedy. As such, your gun rights will not be restored after your felony conviction has been expunged. Expungement also offers limited value in terms of immigration benefits. It would be best to speak to an attorney with experience in both immigration and expungement law before filing a Petition for Dismissal.
Felony and misdemeanor convictions are sometimes considered to be crimes of moral turpitude. Someone who seeks for a conviction to be expunged in order to obtain an immigrant Visa may not meet the criteria of USC 1182(a)(2)(A)(i)(1). Additionally, in some cases, State prison time may be suspended and the defendant may be placed on probation, in which case USC 1182(a)(2)(B) may prevent the individual from obtaining an Immigrant Visa due to the aggregate sentence to five or more years of confinement.
In many cases, a felony conviction may be reduced to a misdemeanor before it can be expunged. The way in which the individual received the plea deal will determine whether the charge may be reduced.
Once your arrest records are sealed under PC 851.91, your RAP sheet has to be updated to reflect "Arrest Sealed - Arrest Relief Granted". All further information will be hidden from the public eye. However, the information will be visible on your Department of Justice records, but it will state that relief has been granted.
As with a Petition for Expungement, sealing your arrest records will not relieve you from the duty of disclosing the arrest or conviction in response to questions about arrests or convictions when you apply for:
- Employment in law enforcement;
- Public office;
- Local or state licensing;
- Commission of the California State Lottery contracting.
In any other scenario, you may lawfully state that you were never arrested. Expungement is not available to people who have been sentenced to state prison, but only those who have been placed on formal or informal probation. Once you have met the eligibility requirements and completed your probation, you may file for expungement.
EXPUNGEMENT VS. PETITION TO SEAL AN ARREST IN CALIFORNIA
Expungement and sealing your arrest records provide you with an opportunity to start over. It clears past transgressions from your record, preventing future employers from judging you based on your criminal record.
Sometimes, your attorney can petition to terminate your probation early and the expungement can be filed along with your early termination of probation. If you have served time in state prison before Prop 47, two years must pass from the date of completion of your sentence before you can file under PC 123.42.
When you need your records sealed, or if you wish to file for expungement, it is important to work with an experienced Record Expungement Attorney who understands the intricacies of the law, Statutes of Limitation, and criminal law.
If you are being held back by your criminal record, contact the Record Expungement Attorney offices as soon as possible. We represent clients in San Bernardino and across California. An experienced expungement attorney will provide you with an expert case assessment. Call Record Expungement Attorney today on 909-965-4033.