An adult criminal record can wreak havoc on your ability to find new, gainful employment, housing and professional state licenses. Whether is an arrest record or a conviction, it carries with it a certain stigma that can be the cause many difficulties in the life of someone who has been arrested or convicted of a crime. Employers might choose not to hire you and landlords might refuse to rent to you if you answer "yes" to their questions about whether you have ever been arrested or convicted of an infraction, misdemeanor or felony. Thankfully, you may be eligible to start afresh by expunging or sealing an adult criminal record.
Removing that conviction from your criminal record can open a world of employment, business, and immigration opportunities, as well as the ability to receive student aid and benefit from the Dream Act. However, sealing of arrest records is not available to everyone. If any of the following apply to your case, your petition to have your records sealed will not be granted:
- You may still be charged with one or more of the offenses for which you were arrested;
- You were arrested for a crime that does not have a Statute of Limitations, such as murder—unless you were found factually innocent or acquitted;
- You have not been charged because you have evaded law enforcement or absconded from the charging jurisdiction;
- You evaded prosecution by engaging in identity fraud, for which you were subsequently charged.
- Your records show a pattern of domestic violence or child or elder abuse.
California PC 851.91 and SB 393 define a pattern as five or more arrests and two or more convictions in a period of three years. However, you might be able to petition to have your records sealed if it would serve the interests of justice. This is determined by the judge, who would consider certain relevant factors, such as:
- the hardship that you suffered as a result of the arrest;
- evidence or declarations regarding your good character;
- evidence or declarations regarding the arrest;
- your convictions record.
WHAT DOES EXPUNGING OR SEALING AN ADULT CRIMINAL RECORD ENTAIL?
If you wish to have your criminal record expunged, you must file a petition with the California court in which your conviction occurred. Your petition will request that the court reopen the criminal case, pursuant to section 1203.4 of the California Penal Code, and to set aside the guilty plea and conviction or the factual jury ruling of guilt. The goal is to ultimately dismiss the case completely.
If the court grants your petition, the State of California will no longer consider you to have been convicted of a crime. When a future employer, landlord or any other member of the public check your criminal record, they will not see the conviction. Public and private criminal records databases will automatically be updated within thirty to forty-five days of the date on which the court grants your petition for expungement.
There are certain differences between expunging and sealing adult and juvenile records and this article deals with it from an adult record perspective. Juvenile offenses tend to be expunged or sealed much more easily once the alleged offender turns eighteen and have stayed on the right side of the law since your juvenile conviction. If you would like to have your juvenile criminal records expunged, call Record Expungement Attorney for case-specific information.
ARE YOU ENTITLED TO PETITION FOR EXPUNGING OR SEALING AN ADULT CRIMINAL RECORD?
In order for your criminal records to be expunged or sealed, you have to meet certain criteria, regardless of whether it was an infraction, misdemeanor, or felony conviction. These are the basic criteria:
- It was a State court conviction, not Federal or Military.
- Your conviction did not include a sentence to State Prison.
- You either did not receive probation, or you have successfully completed formal or informal probation pursuant to the conviction.
- You adhered to all the terms of your probation.
- You are not currently charged with a new offense.
- You are not on probation for a new offense.
- You are not currently serving a sentence for a new criminal offense, which includes serious sex offenses involving children under PC 261.5(d), 286(c), 288, 288.5 or 289(j).
Your arrest record may be sealed as a matter of right thanks to the new SB 393, which shifts the burden of proof from you to the prosecutor. As such, the prosecutor must provide valid arguments as to why your record should not be sealed. Valid reasons might include a pattern of violent crime. The majority of people are entitled to the automatic sealing of their arrest records, provided they were not convicted following the arrest.
It is important to note that your records can only be sealed if the arrest did not lead to a subsequent conviction. If you have been convicted, you must petition for an expungement under section 1203.4 of California's Penal Code.
DIFFERENCES BETWEEN EXPUNGING OR SEALING AN ADULT CRIMINAL RECORD
The California Department of Justice's criminal records database contains many arrest reports that never resulted in criminal convictions. If you have been arrested, but a criminal case was never filed, you can submit a petition to request an Order to Seal from a judge. However, if you have a misdemeanor or felony conviction, the best remedy is a Petition for Dismissal (Expungement).
Sealed records cannot be accessed by the public. That means that it will not show up on background checks completed by employers, lenders or other members of the public. As such, you can lawfully deny that you have been arrested or convicted.
However, some entities may be able to access the court records, for example:
- law enforcement employment application;
- state professional licensing application;
- entities that can produce a court order for the records to be unsealed.
You have to acknowledge the fact that you have been convicted, but you can state that it has been dismissed. Although your record will effectively be destroyed, if you are prosecuted in future, your sealed arrest may be used. Likewise, criminal justice agencies may access or disclose your arrest to other law enforcement agencies.
Importantly, you will not be relieved from:
- the duty to maintain your registration as a sex offender;
- legal prohibitions against holding public office following the arrest;
- prohibitions against possessing or owning a firearm;
- the obligation to disclose your arrest if questioned on an application for local or state licensing, peace officer employment, public office, or on contracts with the State Lottery Commission of California.
Sealing a criminal record permanently erases and destroys public records regarding an arrest and this type of relief is available to any arrest which was not followed by conviction. Once the court grants the petition to seal and destroy your criminal records, it will not be available to anyone who has access to your drivers' license number and names.
Your records will not be sealed automatically. You will have to prove that you are factually innocent. That is why it makes sense to hire a Record Expungement Attorney who is experienced in handling these types of cases. Many challenges can arise during the proceedings, and an expert attorney can help defend you establish that the prosecution cannot show reasonable cause for believing that you are guilty.
If the court grants your Petition for Factual Innocence your criminal record will be sealed for three years, including:
- arrest reports
- prosecution files
- mug shots
- Department of Justice records
- other investigating agency records
After three years, the records will be physically destroyed.
The process of being granted an order to have your records sealed is more involved than simple dismissal and it has more time restrictions. You must file your Petition for Factual Innocence within the latter of a) twenty-four months of your arrest, or b) the date on which charges were filed. If there is a valid reason for the delay, the court may waive the Statute of Limitations.
If you are unsure of the arresting department's processes, you may ask if they have a designated factual innocence liaison officer who can explain their processes with respect to Petitions for Factual Innocence to you.
The process for filing a petition to have your records sealed will depend on whether charges were filed against you after the arrest.
If your arrest was not followed by charges, the Petition for Factual Innocence must first be served on your local arresting agency and a copy should be submitted to the county District Attorney. This is the ideal outcome in an expungement case, as it shows that there never should have been a blemish on your criminal record in the first place. You can obtain a Certificate of Actual innocence after being arrested and charged and having the charges dropped, or if the case goes to trial and you are found not guilty.
There is a 60-day Statute of Limitations during which the arresting agency must respond to your Petition for Factual Innocence. If they ignore the PFI, you can file it with the court once the statute has run out.
If you were charged after your arrest, you have to wait for the charges to be resolved. If you are acquitted or if the case is dismissed, you can file your Petition for Factual Innocence immediately.
In the past, before the SB 393 was signed, the court had to review the underlying evidence in your Petition for Factual Innocence, including the police report, affidavits, and declarations looking for reliable and relevant facts. The court had to also review the opposition's reasons for opposing your petition to provide you the opportunity to back your evidence with:
- witness statements
- character references
- letters of recommendation
- and declarations.
Now, you simply have to show that your arrest did not lead to a conviction.
Expungement procedures may differ from one jurisdiction to the other. In order to obtain a fresh start after your conviction, you must first find out more about the expungement processes from the arresting agency or the criminal court in your jurisdiction. You must find out:
- Whether your particular offense is eligible for expungement.
- When you will be eligible for criminal record expungement.
- What the process involves.
- The consequences of expungement.
If you were arrested and or convicted for a drug offense, you may be eligible for a diversion program which paves the way for record expungement on successful completion of the program.
HELP WITH EXPUNGING OR SEALING AN ADULT CRIMINAL RECORD
If you need help with expunging or sealing an adult criminal record, Record Expungement Attorney can help. If you have multiple convictions which you would like to remove from your records, each case will be handled as a separate case by the court and by our firm.
Once you have submitted all the required information to us, we will do a thorough case assessment to ensure that you meet the court's qualification requirements. We will then prepare your expungement petition and submit it to the court. If there is any opposition from the prosecutors, we will respond accordingly.
Record Expungement Attorney will attend any expungement hearings and argue your case on your behalf. In most cases, you will not have to attend court hearings.
The process of expunging and sealing your adult criminal records can take anywhere from two to four months, depending on how busy the specific court is. Courts process cases on a first-come, first served basis, so your case will have to go in the queue.
If you need help having your adult criminal record cleared through expungement or sealing, call 909-965-4033. Record Expungement Attorney handles cases throughout California, including San Diego, San Fernando Valley, Orange County, Riverside, Rancho Cucamonga, Long Beach, Pasadena and San Bernardino, CA. We can also assist with sealing your juvenile criminal records or appeal to have your criminal conviction expunged. Schedule an appointment with an experienced Record Expungement Attorney now and stop your record from causing you to miss out on opportunities.