In California, you have the opportunity to seal and destroy your past arrest records if they did not lead to a conviction. By sealing an arrest record, it cannot appear at standard background checks in the state. However, the arrest record will appear on law enforcement background checks. Note that even if you are not found guilty, an unfair arrest can be detrimental to your life, such as limiting your chances to secure employment. The process of sealing an arrest record is based on the California Penal Code 851.8 PC. At Orange County Criminal Defense Attorney Law Firm, we understand that an arrest record can negatively affect your life in various ways. We can assist you in getting your arrest record sealed so that you can lead a normal personal, professional, and social life.
California Penal Code 851.87 PC
This section allows previously arrested persons to seal their arrest records if:
- The prosecutor did not file any charges
- You were found to be innocent
- Charges were later dropped
- Any conviction was overturned after an appeal
In case you were arrested, and there were no formal filing of charges, you can request for the arrest records to be sealed and destroyed under penal code section 851.8. After filing a petition and the law enforcement authority fails to respond within 60 days, it is likely that the request failed. However, if the court identifies that were factually innocent, it will order the sealing of these records.
In some circumstances, you might have been acquitted upon your trial. Such a situation means that you can apply for a sealing petition as long as you meet the requirements. In this case, the sealing process requires you to file a motion under PC 851.85, notifying all the associated parties. If the court establishes that you were innocent, then it will order the sealing of your records.
On the other hand, you can file a petition to seal your records if you successfully finished a pre-filing diversion program. California’s law under Penal Code 851.87 affirms that you can apply for a petition to seal your arrest records two years after completing your diversion program. This also applies if you successfully finish a drug or substance use diversion program. In this case, you file a petition under Penal Code section 851.90.
One can also file a petition to have an arrest record sealed if you were under the age of 18 when you committed a misdemeanor. Mostly, this happens if you qualify, or you received relief under PC1203.4. This means that you can file a petition requesting the records of your case to be sealed, including any history of detention.
Advantages of Sealing Arrest Records
Before you commence the process of sealing your arrest records, it is crucial to comprehend what they can and cannot achieve. California Penal Code 851.92 stipulates that sealing of an arrest record will help you achieve the following:
Eradicate police and court reports associated with the arrest
Prevent the arrest record from being accessible to the public. Such records can only be observed by criminal justice entities and not on other random background checks.
Owners of Apartments
Sealing arrest records is significant because it enables you to get a rental apartment without any difficulty. Note that people with prior arrest records face challenges when seeking an apartment to rent because many landlords conduct background checks and might deny you the opportunity to reside in their property.
College and University Admission
Some colleges and universities have stringent rules regarding their admissions. You might be denied access in some of these institutions if you have a previous arrest record, even if it did not translate into a conviction. Therefore, it is crucial to seek the sealing of these previous records to prevent them from appearing when such checks are conducted.
Sealing records will help you in quickly accessing licenses from various state licensing agencies. This is possible because your previous arrest records will not appear in case such agencies decide to conduct background checks.
Sealing of past arrest records is necessary because it makes it easier for you to get a job. Many potential employers run background checks before they consider you for a particular position. Having an arrest record might dent your image towards your prospective employers. Sealing such a record will ensure that you will not have to be stressed or anxious about the employer finding out your past legal mistakes.
Many financial entities conduct background checks before they choose to provide you with loans. Some might decide to turn down your request if they find out that you have prior arrest records. Sealing such records will censor such information and prevent it from being accessible to these financial entities.
Factors that Make You Ineligible to Seal an Arrest Record
An individual does not qualify to seal an arrest record if the following elements apply:
- The individual did not get any charges because he or she fled the state or avoided the authorities attempts to facilitated the arrest
- The defendant engaged in identity theft or fraud to avoid getting prosecuted and was convicted for the latter offense.
- The person might still be charged with any other crimes that are associated with the arrest
- The person arrested for an offense with no period as provided for in the Statute of Limitations, for example murder.
You also do not have a right to get your past arrest records sealed if the court identifies that your criminal record demonstrates ‘pattern’ of the following offenses:
- Abuse of the elderly
- Domestic violence
- Child abuse
The California law stipulates that a pattern refers to two or multiple convictions. It also notes that a trend is identified by a record of five or multiple arrests within three years. However, it is still possible for individuals in this category to get their records sealed if they demonstrate that doing so would fulfill the interests of justice. The court considers various factors in evaluating whether the sealing of arrest records would serve the interests of justice. These include the following:
- Testimonials or evidence associated with the arrest
- Challenges or problems experienced by the petitioner because of the arrest that is under petition
- An individual’s convictions record
- Testimonials or evidence demonstrating a petitioner’s ethical character
Factual Innocence and Its Importance
While California has a 2018 law that directs the sealing of most arrests that do not lead to a conviction, the law is not extensive as most people would like. However, the Penal Code 851.8 provides the basis of petitioning for factual evidence. While this is hard to obtain, acquiring it provides the most extensive form of protection. When a court grants factual innocence sealing, your arrest is destroyed for all functions, and you get a fresh start. The judge provides sealing if he or she believes that the police have inadequate reasons for executing the arrest.
When the court provides factual innocence, it directs the sealing of all the prosecution as well as arrest records. The seal is maintained for three years since the time of arrest, after which all the records will be destroyed. Some of the destroyed records include:
- Booking pictures
- Police records
- Records from the Department of Justice
- Records of the local police department
The California law of factual innocence stipulates that when a petitioner is granted this sealing, the arrest shall be perceived not to have occurred. The statute also directs law enforcement authorities responsible for the crime or the court to provide a written statement to the petitioner declaring that he or she is factually innocent.
Sealing of an arrest record can hide the offense for most purposes though the case does not entirely stop existing. Such a sealed arrest can re-emerge if the petitioner is prosecuted for another offense. The criminal justice agency might also reveal the information to another law agency as though it was not sealed. Note that sealing an arrest does not shield you against the following:
- Any restriction against possession of a firearm
- Any duty to register as a sex offender regarding California Penal Code 290
- Any legal limit against holding a public office
- Responsibility to reveal the record as required necessitated by law as an answer to a direct question
The Process of Sealing an Arrest Record
There are procedures you will have to go through to seal your records. With the help of a criminal attorney, the process is much easier. Here’s a look at the process:
When you want to get an arrest record sealed, there are two methods through which you can file a petition. The first channel is through the court where the charges were filed. On the other hand, one can file the petition through the county that the arrest happened if there were no filed charges. The petition is then served to both the prosecutor’s office as well as the law enforcement agency responsible for the arrest.
Any petition has to include the following details:
- Name of the law enforcement authority responsible for the arrest
- Age and name of the petitioner
- The alleged crime on which the arrest was filed
- County where the arrest occurred
- Case number that identifies the arrest
- A declaration noting that the petitioner has the right to seal the arrest
- In case the petition is founded on the interests of justice, there has to be a declaration of how these interests would be fulfilled.
In some cases, the prosecution or district attorney might dispute the petition making the court to conduct a hearing. In California, your county of residence determines whether you will need to appear in court personally, or a criminal defense attorney can represent you. At this stage, the court assesses the arrest record, and in other cases, it evaluates the evidence that demonstrates that sealing the record would satisfy the interests of justice.
Note that the petition process of sealing an arrest record can be a single or two-step process as demonstrated below:
Sealing by the Law Enforcement Authority
This process entails the law enforcement agency that was responsible for the arrest. In this case, you petition directly to such agencies to seal the record if you were arrested, and no formal charges were filed. The first step is to serve the authorities with the petition. In case, the agency recognizes that you were factually innocent, it will inform the Department of Justice and get the records sealed for three years. After the expiry of the period, the records will be destroyed. However, if the law enforcement authority declines the request, your defense lawyer will pursue the second step.
Superior Court Sealing
You can also file a petition to seal your arrest records to the Superior Court, where the criminal charges had been filed. Note that the procedure applies to people whose cases were dropped after the filing of the charges. It is also applicable to people who were acquitted by the jury. This procedure also applies to people whose request was declined by the law enforcement authority, or there was no response from the agency within 60 days.
The process entails serving a copy of the petition to the law enforcement authority and the prosecutor ten days before the hearing. The police and the law enforcement authority might provide evidence at the hearing.
It is critical to have a qualified criminal defense attorney considering the court maintains significant discretion in making its decision of whether to grant the petition request or not. A good attorney will navigate through the California law system and conduct the necessary investigations to provide a convincing case to the judge.
Upon filing the petition, it takes approximately ninety days to acquire a court directive to seal the record. After the court grants the petition, it informs the law enforcement authority, department of justice, as well as the agency responsible for criminal history records. The responsible agencies then update your primary criminal and court records identifying that the arrest was sealed.
After the sealing process has been completed, all the records associated with the arrest should not be accessed by any entity other than:
- Criminal justice authorities
- The individual whose arrest got sealed
Certificate of Detention
In some cases, engaging with the police or getting to jail does not necessarily amount to an arrest. This is referred to as detention and occurs if you are granted a certificate of detention. In California, a detention record is better than an arrest record. The reason is that many prospective employers and licensing agencies will inquire about your arrest records but not your detention records.
An arrest is considered detention if any the following is true:
- There was no warrant provided for your arrest and sufficient evidence to prove your offense
- After your arrest, you were released without any charges getting filed in court
- You got arrested without a warrant for being under the influence of a controlled substance, and you attended a treatment program, and there was no need for further measures
Sometimes it is better to attempt to get an arrest identified as detention instead of engaging in sealing the arrest record. Such a move is suitable, especially if you are seeking:
- A local or state licensing
- A job opportunity as a public officer
- Employment as a peace officer
However, if you are given a certificate of detention upon your release, you do not need to petition for the arrest to be reduced to detention. You are also not obligated to reveal the detention to other parties. In case you were not provided a certificate of detention upon your release, you can get one by writing to the law enforcement authority responsible for the arrest. The letter should stipulate reasons you believe the arrest should be labeled as detention. A skilled criminal defense attorney will help you in structuring an argument that will convince the court.
How the Court Determines its Decision
The court conducts brief hearings and witnesses testify to help the judges in deciding whether to allow or reject the petition to seal the records. The judge rules depending on the evidence and testimonies presented. He or she affirms where you are factually innocent of the charges. At this stage, you need an attorney because of the associated complexity. You need to convince the court that there was no reasonable cause for your arrest. When the court confirms that there was reasonable cause of your arrest, you will be granted the petition, and records associated with the arrest will be sealed.
Consumer Arrest Record Equity Act
The legislature in California enacted Senate Bill 393, which provides another possible mechanism to facilitate an arrest record sealing. Under this statute, if you were previously arrested and not convicted of an offense, you can petition to the court to have the record expunged entirely. While Penal Codes 851.8, as well as 851.91, entails sealing of arrest records, they have a significant difference regarding the necessities and impact of the motions. While one is based on being legally innocent, the other is based on being factually innocent.
Under Penal Code 851, the statute addresses persons that are ‘factually innocent’ of the offenses. This means that there is no rational basis to believe that you committed the crime, and you should not have been arrested.
The newly enacted Penal Code 851.91 entails individuals that are ‘legally innocent’ of the offense they were arrested for. The notion means that a person was not found liable beyond a reasonable doubt and cannot be convicted for any crime.
Note that the code sections also provide different safety degrees regarding the sealing of the arrest records. For instance, while 851.8 sealing eradicates the record for all purposes, 851.91 incorporates some restrictions. Under PC 851.91, the arrest record might still be accessible to potential employers that conduct background checks, especially if you are applying for an employment opportunity as a law enforcement officer.
Statute of Limitations and Sealing of an Arrest Record in California
Statute of Limitations refers to the la that provides the maximum period that the prosecution has to file the charges. Note that the cases vary for different types of offenses that form the basis of your arrest. For most misdemeanor cases, the prosecutors have a maximum of one year to file the charges since the time of the arrest. Felony cases, on the other hand, need the prosecution to file the charges within three years. Failure to file the charges within the required time means that you are eligible to file for a petition to get the arrest sealed for some instances. However, certain felony crimes do not have a period prescribed by the Statute of Limitations, and the prosecution can file the charges at any time.
In many cases, people have the right to have their arrest records sealed as long as they satisfy all the eligibility requirements and file the petition correctly. This means that you are not obliged to demonstrate that it is in the interest of justice by applying for a declaration. However, the court can deny your request to seal the records if there are patterns of certain offenses in your criminal record.
In California, the law stipulates that you have up to two years since your arrest to file your petition requesting the sealing of your arrest record. Failure to meet the provided guidelines will reduce your chances of getting your sealing petition declined.
Find A Criminal Defense Attorney Near Me
If you or your loved one want to seal a prior arrest record, it is appropriate to have a skilled and experienced criminal defense attorney. At Orange County Criminal Defense Attorney Law Firm in California, we understand that prior arrest records can affect your life in different ways. Therefore, we are committed to ensuring that you get your record sealed and even destroyed as long as you meet the requirements. We will assess your case and advise you on the most appropriate course of action to adopt. Our team will also represent you in the superior court in case the associated law enforcement agency declines your petition. Call us today at 714-740-7848.