Review of How To Seal Your Arrest Record in California
In the state of California, there are several hundreds of thousands of people who are cited or arrested on many different types of misdemeanor or felony charges every year.
However, out of all these arrest, a large number of cases are never formally filed as criminal charges. There are also a large number of cases that are filed, but are later dropped by the prosecutor for a wide range of reasons.
When this occurs, most people don't realize that you still have to take legal action to keep the details of the arrest off your public record for everyone to see, known as a rap sheet.
Clearly, having an arrest record can impact your ability to get a job, where you live, join the military, or get accepted into a college.
Under law, anyone arrested in California, but never convicted can have their arrest records sealed. This means the details of the arrest will not appear on most criminal background checks.
The prior law for getting an arrest record sealed involved a petition to prove “factual innocence,” under Penal Code 851.8 PC, which came with a very high standard and often difficult to obtain.
Put simply, if you were arrested for a crime, but not convicted, you might be able to have the arrest record sealed under California Penal Code 851.91 PC. Our Los Angeles criminal defense lawyers will review of the law below.
The Care Act
A recently updated 2018 law, Senate Bill 393, The CARE Act, now makes it easier to get your record sealed in the state of California. It was signed into law by Governor Jerry Brown in October 2017, and took effect on January 1, 2018.
SB 393 changed the statutory language within specific subsections of Penal Code Section 851 PC by amending the law and also adding PC 851.91 and 851.92. The changes that were made now make it easier to seal your arrest record in a situation where you were arrested for a crime, but never convicted.
When you get your arrest record sealed, it means your arrest will be deemed not to have occurred, and you can answer “no” to that crucial question of “have you ever been arrested,” often asked by potential employers, landlords, and state licensing agencies.
Once your arrest record is sealed under PC 851.87, then your arrest will not show up publicly on background checks.
However, protections of sealing an arrest record don't prohibit disclosure of arrests to a California government agency or the United States Department of Justice.
Further, your arrest record will not will completely erased. It can still be used against you if you are prosecuted for a new offense.
If you are applying for certain jobs, then you are still obligated to disclose your arrest. For example, when applying to become a police officer, hold public office, or obtain a state license.
Getting your arrest record sealed does not relieve you from your obligation to register as a sex offender under California Penal Code 290 PC, or any prohibition against owning or possessing a firearm.
Who Is Eligible for Having an Arrest Record Sealed?
Under California Penal Code 851 PC, you are eligible to have your arrest record sealed for any of the following reasons:
- you were arrested, but no criminal charges were ever filed against you;
- criminal charges were filed against you after arrest, but later dismissed;
- you were acquitted or found not guilty at jury trial;
- you were convicted, but it was vacated or overturned on appeal;
- charges were dismissed after completing a pretrial diversion program like PC 1000 deferred entry of judgment, or Proposition 36 drug treatment.
Eligible defendants are not guaranteed to get their arrest record sealed. The judge has the authority and discretion to grant or deny your petition.
The judge will consider your prior criminal record, evidence of the arrest, moral character, and any hardships that were caused by your arrest.
Who Is Ineligible?
There are several exceptions making you ineligible to get your arrest record sealed in California, which include the following:
- you could still possibly be charged again (refile) later by the prosecutor because the statute of limitations has not yet expired;
- you were charged with a serious violent felony case, such as murder, that has no statute of limitations, unless you were acquitted;
- your criminal record shows a pattern of arrest for domestic violence related charges, such as domestic battery, corporal injury, child abuse, elder abuse;
- you intentionally evaded law enforcement efforts to prosecute the arrest;
- you evaded arrest efforts by engaging in identity theft.
A pattern of domestic violence incidents is described as at least two convictions or five arrest within 3 years for elder abuse or child abuse from at least one of the other type crime, but the judge still has the discretion to grant the request to seal it if would serve the interests of justice.
Put simply, the option for a PC 851.87 sealing your arrest record is only available if you have an arrest that did not end up with a conviction.
If you were convicted of a crime in California, then you may be able to pursue a criminal record expungement.
What is the Process of Sealing Your Arrest Record?
You should first seek guidance from a criminal defense attorney who can guide you through the process sealing your arrest record defined under Penal Code 851.91 PC.
One petition applies to only one arrest, meaning you have to file separate petitions for each arrest you are seeking to have sealed.
You will need to file a petition in the court, or the city where you were arrested, which must be served on the arresting law enforcement agency and the prosecution.
The petition has to include the following:
- name of the law enforcement agency who arrested you;
- date and location of your arrest;
- case number, if applicable
- alleged crime;
- statement you are entitled to have the arrest record sealed as a matter of right or in the interest of justice, and how it would be served, along with declarations of support.
Once the petition is received by the prosecuting agency, they could request a hearing to challenge the petition, which has to occur within 60 days after being served.
At the hearing, a judge reviews your arrest record and will decide whether the “interests of justice” would be served if they grant your petition.
You defense lawyer is allowed to present evidence in support of granting the petition. On the flip side, the prosecution is also allowed to present evidence to challenge the petition.
The process of getting your arrest record sealed takes about 3 months after you have filed the petition. Penal Code 851.91 PC does not define any type of deadline to file a petition, but we need to determine when the statute of limitations will expire for the crime you were arrested for.
What are the Benefits of Sealing an Arrest Record?
A criminal record in California is a public record that means anyone can access a person's criminal history, which includes possible employers.
While it's true employers are technically prohibited under “California's ban the box law” from taking into consideration an arrest that did not lead to a conviction, in reality, they will simply use other reasons to not hire you.
Put simply, employers routinely reject applicants who have arrests on their record, but just won't use that as the reason.
Further, getting your arrest record sealed could help you get accepted into a military career, accepted into a college, or obtain a professional license.
Once your arrest record is sealed, members of the public will no longer be able to see the following:
- record of the arrest,
- booking picture and fingerprints,
- police report, or
- court records.
Prior to the law being updated, it was much more difficult for someone who was arrested to get their record sealed, which sometimes meant an innocent person faced discrimination.
Contact Eisner Gorin LLP for Help
The sealing an arrest record process in California under Penal Code 851.91 PC is often complex and we first need to review your eligibility.
Clearly, having an arrest on your record can negatively impact your life in many ways. You do have options on getting arrests off your record.
We can help you prepare and file a motion in court in an effort to clean up your arrest record. If the judge grants the petition to seal your arrest record, then the arrest will be considered not to have occurred.
It should be noted that sealing and adult arrest record is a different process than sealing a juvenile record, which is described under Welfare and Institutions Code 781.
If you have questions about the possibility of sealing your arrest record, you can contact our office for an initial consultation at (310) 328-3776. Our law firm is based in Los Angeles County.