A common question is what the difference is between expunging a record and having it sealed. When you're arrested, charged with a crime, or convicted of a crime, these court actions become a matter of public record, accessible via employer or criminal background checks, etc.
These records can impact your life even after you have been cleared of wrongdoing or served any sentence imposed. The process of sealing or expunging these records effectively removes them from public view.
An expungement is found under California Penal Code 1203.4 PC. It occurs when someone has already entered into a guilty plea for a criminal charge and served their time on probation. They then return to court and request a judge to expunge their record.
If granted, this can change a criminal record from showing that they were convicted of a specific charge to showing that the charge has been "dismissed, pursuant to PC 1203.4." This process, though it may seem daunting, is a legal right that can provide you with a fresh start and a chance to rebuild your life.
Under Penal Code 851.91 PC, you can seal your arrest any time that arrest or detention did not result in a conviction. Sealing an arrest means having a judge determine that the arrest is never to have happened for you.
This would mean your record would not show any conviction or evidence you were ever arrested. It essentially clears up the incident as if it never happened. You must not have been convicted of a crime to seal your record.
However, you can still petition for this relief even if the court dismissed your case under a deferred entry of judgment order. You can seal any evidence of the arrest or detention from your record as long as you do not have a criminal conviction on it. In the context of criminal records, the terms expungement and sealing are often used interchangeably, but in reality, they are two different things.
Both processes effectively diminish the impact of a criminal record on one's life by making the record publicly inaccessible, but they diverge significantly in method and outcome.
Different states practice different approaches to clearing a person's criminal record. Let's discuss the main difference between expunging and sealing a record, then talk about how the State of California approaches this issue and what you can expect if you are trying to get a criminal or arrest record removed from public view.
What is Expunging a Record?
Expungement is a legal process that essentially erases an individual's criminal record in the eyes of the law. It is as if the offense never occurred. Once a record is expunged, it need not be disclosed in most situations, such as during job applications or rental agreements. The record is completely destroyed in true expungements, so it no longer exists.
However, even in states that practice expungement, certain government agencies and law enforcement may still view the expunged record under specific circumstances.
The eligibility for expungement varies by jurisdiction but typically requires that the individual has completed their sentence, including probation, and has not committed any further crimes.
The nature of the crime also plays a significant role; more serious offenses are less likely to be eligible for expungement.
Penal Code 1203.4 PC says, "(a) (1) When a defendant has fulfilled the conditions of probation for the entire period of probation or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interest of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation if they are not then serving a sentence for an offense, on probation for an offense, or charged with the commission of an offense, be permitted by the court to withdraw their plea of guilty or plea of nolo contendere and enter a plea of not guilty. The court shall set aside the guilty verdict and shall thereupon dismiss the accusations or information against the defendant. Except as noted below, the defendant shall thereafter be released from all penalties and disabilities resulting from the offense of which they have been convicted…"
What is Sealing a Record?
While similar in intent to expungement, sealing a record differs significantly in practice. When a record is sealed, it is hidden from public view but not erased. This means that the general public, including employers and landlords, cannot access information about the offense.
However, unlike expungement, sealed records remain accessible to law enforcement, the courts, and certain government entities, and therefore, they might still influence legal decisions or security clearance evaluations. Like expungement, eligibility for sealing depends on various factors, including the type of crime and the completion of sentencing requirements.
Penal Code 851.91 PC says, "(a) A person who has suffered an arrest that did not result in a conviction may petition the court to have his or her arrest and related records sealed, as described in Section 851.92."
What is California's Approach?
In the State of California, a true expungement does not exist. However, many people are eligible to have negative court records sealed from public view after a certain amount of time or after specific criteria are met.
This approach aligns with the state's progressive stance on rehabilitation and recidivism reduction. California law permits sealing arrest records and certain types of convictions, especially when individuals can demonstrate rehabilitation or when arrests did not lead to conviction.
Sometimes, the record sealing happens automatically; at other times, you must petition to seal the record. Certain serious crimes, such as sex crimes, child pornography, arson, or murder, can never be sealed.
What is the Clean Slate Law?
California's "Clean Slate Law" (SB-731) went into effect on July 1, 2023, automating the record-sealing process for thousands of defendants. Under this law, the criminal records of individuals who have completed their sentence (and remained conviction-free for a specified period) are automatically sealed. Generally speaking, conviction records are sealed:
- One year after completing a misdemeanor sentence,
- Four years after completing a felony sentence, and
- Immediately upon completion of probation for both misdemeanors and felonies.
The law also provides for the automatic sealing of arrest records in cases where no charges were brought. However, certain serious crimes, such as sex crimes, child pornography, arson, or murder, are not eligible to be sealed, either automatically or by petition.
Getting Help from an Attorney in Having Records Sealed
In cases where the automated process of record sealing does not apply, if you wish to attempt to clear the record earlier-you can petition the court to seal your records. However, it is advisable to consult an attorney with expertise and experience in criminal record sealing to ensure that you are taking all necessary steps and providing accurate information. Contact us for more details. Eisner Gorin LLP is based in Los Angeles, CA.
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