An arrest entry on your criminal record can lead to many issues. Unfortunately, an arrest will remain on your record even if it never leads to charges and a conviction. If you're looking to enroll in school or getting your driver's license (as a juvenile) or if you're looking for a new job, professional certifications or opportunities to advance your career. Being eligible for record sealing might provide you an opportunity to start over, without the stigma of a criminal record.
A study conducted in 2012 found that nearly two-thirds of organizations perform criminal background checks on job candidates, but just over half of them allow candidates to justify the blemishes on their records. While California law prohibits employers from questioning job applicants about prior arrests for which they were not convicted, a majority of employers will not consider an applicant who has a criminal background.
Apart from employment, a criminal record can hamper many other opportunities that require a blemish-free background. However, the 2018 New Year heralded the start of an all-new Consumer Arrest Record Equity Act (CARE), or Bill 393, which brings new hope for individuals who were arrested for a crime, but never convicted. It can be found under Section 851.91 in the California Penal Code.
Bill 393 outlines new procedures by which you can petition the California courts to expunge your arrest record completely.
DO YOU QUALIFY TO HAVE YOUR RECORDS SEALED?
Expungement under PC 851.91 provides a means for anyone who was arrested but not convicted to seal open arrest records. The Consumer Arrest Record Equity Act (CARE) defines "not convicted" as follows:
- You were arrested, but no charges were filed against you for the crime for which you were arrested.
- The prosecution filed charges, but you were not convicted because charges were dismissed.
- The prosecution filed charges, but you were acquitted at a court or jury trial.
- You were convicted, but the conviction was vacated or reversed on appeal.
No definition is contained in the new statute to define the meaning of an arrest. However, that is usually clear when a person is booked, processed and incarcerated. Yet, the courts may have to rule on open questions, such as whether the person who received a citation was arrested.
Expungement law does have certain limits. For instance, there are circumstances in which PC 851.91 will not apply, for instance:
- Provided the statute of limitations on the charges has not yet expired, the district attorney might still refile charges.
- If you were charged with murder or another serious offense to which no statute of limitations applies, except if you have been found factually innocent or acquitted.
- If you absconded from the jurisdiction in which you were arrested, or otherwise intentionally evaded law enforcement.
- If you used identity fraud to intentionally evade law enforcement and were charged with identity fraud as a result.
Whether the DA's office can still file charges will depend on the Statute of Limitations. The Statute of Limitations usually depends on the severity of the crime and the penalty, and there are many variables. Statutes of limitations on sex crimes and crimes against children are often tolled until the woman turns twenty-one years old.
Certain crimes are not governed by Statutes of Limitations. Murder and other heinous crimes, and public money embezzlement that are punishable by life imprisonment in a state prison without the possibility of parole, or death, may commence immediately.
- Misdemeanors usually carry a one-year Statute of Limitations from the date of the offense.
- General felonies typically carry a three-year Statute of Limitations from the date of the offense.
- Serious felonies that may be punishable by state prison sentence of eight or more years carry a six-year Statute of Limitations from the date of the offense.
When you bring a petition to seal your arrest record under California SB 393, the judge has to grant is as a matter of right. as such, if you qualify under one of the four record sealing categories under PC 851.91(1), you may be entitled to having your record sealed automatically.
RECORD SEALING - IN THE INTERESTS OF JUSTICE
The legislature did not want individuals with an extensive criminal history to be able to have their records automatically sealed, which is why Senate Bill 393 requires that a person who wants to have their record sealed, shows the court that such action would be "in the interests of Justice".
The Consumer Arrest Record Equity Act (CARE) requires this of anyone who has an extensive criminal record that shows a pattern of elder abuse, child abuse, and domestic violence. A pattern is defined in PC 859.91 (2)(A)(ii) as five or more arrests or two or more convictions for separate similar offenses that occurred separately within three years of the last arrest or conviction.
The court will have to decide whether sealing your records will be in the interests of Justice. To do that, it will consider a number of factors, including, but not limited to:
- evidence of rehabilitation;
- circumstances and facts relating to the arrest;
- hardship you have suffered as a result of the arrest.
CALIFORNIA SB 393 EXPUNGEMENT CONSEQUENCES
The best thing about having your record sealed with SB 393 is that under most circumstances, the law will deem the arrest to have never occurred. You will have every right to answer "no" when you are questioned as to whether you have ever been arrested.
Although your arrest will not be visible to the public, it may still be considered a prior conviction in certain legal matters, such as:
- Driving under the influence and other driving-related offenses.
- Firearm rights. If your arrest is sealed pursuant to SB 393, it will not return your right to own or carry a firearm.
- If your arrest prohibited you from holding public office, having your record sealed will not clear the prohibition.
- Even after your arrest record is sealed, you must still disclose it in certain application procedures, such as application to run for public office, to be employed as a peace officer, to be licensed by a local or state agency, or to contract with the California State Lottery Commission.
RECORD SEALING PROCESS
If you would like to have your name cleared by having your record sealed, you should ideally get in touch with a Record Expungement Attorney in San Bernardino, CA who specializes in these kinds of cases.
The first step would be to determine your eligibility. While you meet the criteria above, your experienced attorney will carefully assess all the details of your case to determine the best way forward, and will also be able to anticipate any potential challenges with your petition.
If you have been convicted in state court, you could potentially file a petition for expungement. However, your conviction can not be expunged if you have been charged by the federal court, or if you were sentenced to state prison. You may possibly be eligible for expungement if you received any punishment other than state prison.
In some cases, you may be able to show that you have met all the terms of your probation, or you are able to petition the court in order to secure an early probation. After that, you may be able to file for expungement. It the court can verify that you have met the conditions of your sentence, and the requirements that have been set out by the court (including court-mandated evening classes or community service programs), you may consider filing a petition for expungement.
There are cases in which people cannot apply for expungement. This includes cases that involve murder, kidnapping, and sexual misconduct against children, to name a few. Repeat offenses after expungement will also render someone ineligible for another expungement. In fact, the existing expungement may be reversed.
If you are involved in a violent crime perpetrated with a firearm, you will never be approved to carry a gun permit or work as a police officer in future.
Anyone who wishes to hold, or currently holds public office, convictions must be disclosed, even if they have been expunged. The same applies to holding any state license, and during the formation of a contract with the California Lottery Commission.
Some people are under the impression that drug and marijuana charges are automatically removed from one's criminal record, but this is not true. If you are charged for marijuana possession (less than one ounce - which means you had no intention to selling it), or transporting the same amount, your criminal charges will be dropped or sealed after two to three years. Other cases involving drugs or marijuana will require individual petitions for expungement for each crime.
SEALING RECORDS: JUVENILE RECORDS
A juvenile record will include all criminal activity in which you were involved before you turned eighteen, and the courts, the police department, probation department, and district attorney will hold copies of your records.
Contrary to popular belief, your juvenile records are not sealed automatically when you turn eighteen. Until you obtain a judicial order to have your juvenile records sealed, future employers, school officials, state licensing agencies, landlords, and lenders will have access to the information contained in your record. Your juvenile records can hamper your ability to obtain:
- driver's license
- educational opportunities
- loans and more.
In the event of a juvenile sex offense, you will not have to register as a sex offender, and all your registration information will be destroyed. When your record is sealed, it is as though the offenses never occurred, although certain exceptions do apply. It would be legal for you to deny ever having been arrested or convicted of a sealed offense, or having sealed your record.
The Welfare and Institutions 786 code, which was passed in October 2015, entitles an individual who completed his or her probation on January 1, 2016, or subsequently, to have their juvenile records held by the court, probation, law enforcement and the California Department of Justice (DOJ) sealed automatically by the court at no cost. You may ask other counties, schools, and public agencies to seal the records, as this may not be done automatically.
If your case ended in January 2015, and you have completed probation, your court records may be automatically sealed. However, you may still have to petition the court to seal DOJ, probation, and law enforcement records. If your case is older than January 2015, you must file a petition to the court to have your records sealed.
You, as well as certain companies and agencies, will still have access to your sealed juvenile records, including:
- The Federal Government and military branches may access your records to provide security clearance if you work with private companies that do business with the Federal Government.
- The court, probation department, and prosecuting attorney may access your records to determine whether you are eligible for services or programs.
- Insurance companies will be able to see driving-related records from the Department of Motor Vehicles as is needed to set your rates.
If you commit another strikeable offense that qualifies as a strike, your record can be unsealed under the Three Strikes Law.
Your sealed record will be destroyed five years after the date on which it is sealed if you committed truancy or another status offense under the Welfare and Institutions Code section 601. If you committed a criminal offense, Under Section 602, it will be destroyed when you turn 38.
Do you have an old blemish on your record which has been haunting you? If you have been a law-abiding member of the community since your arrest or conviction, you can start fresh with a clean record. Record Expungement Attorney offers expert record sealing representation for clients across California from our offices in San Bernardino, CA. Call 909-965-4033 now to set up a consultation to learn how we can help you with record sealing and expungement.