Each year, in the state of California, police make over 1,000,000 arrests or citations for a variety of different offenses for which individuals face the possibility of prosecution in court. Not so surprisingly, however, tens of thousands of those cases are rejected or never filed by prosecutors. While that may be great news for the person who was arrested or cited, the record of arrest sits there like damage on a new car leaving people to wonder what YOU did wrong. In thousands of other cases each year, the prosecutor files charges that are later completely dismissed. Once again, great news on the one hand, but visible damage on the other because even arrest records on cases that were dismissed, rejected, or never charged are available for the public (including prospective employers, school admissions officers, and professional licensing boards) to search and view and judge you.
The experienced lawyers at Clear My Records have spent the last dozen years in California working to defend the innocent and clear the names of good people caught up by bad situations. With recent changes in the law, we are working diligently to clear arrest records for the good folks in California who were arrested or detained only to have the case rejected, dismissed, or never filed at all. We spend our days working to clear your good name!
From your first call to us with questions about having your arrest record sealed, a knowledgeable lawyer will spend all the time you need to make sure all of your questions are answered. Once we begin working on your case, we will work to get your case resolved and record sealed as quickly as possible. It is about time you let a professional take the necessary steps to prevent your past from harming your future.
The Significance of Senate Bill (SB 393) in Record Sealing
The governor of California Jerry Brown signed SB 393 into law on the 12th of October 2017. This law is known as The Care Act. It came into effect on the 1st of January 2018. Senate Bill 393 altered the language of several subsections of Penal Code 851 by modifying sections 11105, 1001.9, 1000.4, 851.90, and 851.87 of the statute and adding subsections 851.92 and 851.91. These changes make it more straightforward than before to seal their records if they weren’t sentenced for the offense for which they were arrested.
Before the implementation of Senate Bill 393, it was extremely difficult for anyone whose arrest didn’t lead to sentencing to have their record of arrest sealed. Basically, the person had to file a factual innocence petition as per Penal Code 851.8, even if the prosecution didn’t file charges or filed them but later dropped them.
The arrest record would then appear on the background checks performed by to-be landlords, employers, etc., resulting in unjust discrimination against people who aren’t guilty of the accusations.
According to the new statute, an individual has only to prove that their arrest didn’t lead to a conviction. After demonstrating this, the burden will then shift to the prosecution to show that the individual does not qualify to have their record sealed. The prosecutor could, for instance, argue that the individual has a domestic violence history.
Sealing of your record of arrest under the new law means the arrest will be considered not to have taken place. By this, it means you can truthfully answer ‘NO’ if potential landlords, employers, insurance companies, or state licensing agencies as if you’ve ever been placed under arrest. If your record of the arrest is sealed as per 851.87, the public won’t be capable of seeing it when conducting background checks.
What Is Considered a Pattern of Domestic Abuse or Violence?
You aren’t eligible to automatically seal your arrest record if your criminal record reveals a series of child abuse, elder abuse, or domestic violence. Under the new California PC 851.91 and SB 393, a ‘pattern’ means five arrests or more, or two convictions or more in three years. However, if you fall under this category, you could still petition and have your record sealed with the argument that it serves the interest of justice.
When determining whether sealing your arrest record would serve the interest of justice, the judge might consider several relevant aspects:
Evidence regarding your good conduct
Any hardship you face caused by your arrest and is the grounds for your petition.
Evidence or statements regarding your arrest
Your conviction record
The Record Sealing Process
Record sealing happens in two steps. They include bringing a petition and the hearing process.
Bringing a Record Sealing Petition to Court
The petition for arrest record sealing has to be brought in the same court where the prosecution filed the charges concerning your arrest. Or, if there weren’t any charges filed, you have to present the petition in the respective county/city where you were arrested. Ideally, the court where your case would have been heard if it were filed. You must properly/legally serve the request to both the prosecutor of the county/city where the arrest took place and the law enforcement agency that arrested you. The petition has to include the information below:
Your name & birth date
The date the specific arrest for which you are seeking sealing took place
The county and city in which the arrest occurred
The name of the law enforcement agency that arrested you
Any other details concerning the arrest, like a court/case number
The supposed crime that led to the arrest or filing of charges
A statement stating that you’re eligible to have the arrest record sealed either in the interest of justice or as a matter of right, as applicable
In case your petition bases on the interest of justice, you have to include a statement stating how the interest would be served by granting your request and supporting statements.
In cases where the DA challenges your petition, a hearing will be scheduled. Your lawyer will know whether you have to attend the court proceedings personally or your lawyer can attend it for you. During the proceedings, the judge examines the record of arrest and, if need be, proof of why the record sealing will be in the interest of justice.
A responsible lawyer will investigate your case thoroughly and ensure that all the paperwork is in the correct order so that not much time is wasted because of inadequate or incomplete forms. Also, he/she will conduct the Penal Code 851.87 hearing on your behalf and effectively contest it.
How Long It Takes
The process can take some time – weeks to even months depending on the court’s backlog of ongoing cases. When the court does finally grant the petition, within thirty days the court notifies the following:
The law enforcement agencies or agency that participated in or made the arrest
The Justice Department of California
The law enforcement agency in charge of administering the records of master criminal history
Both your court and master criminal records are then updated to indicate the arrest in question is sealed. Then, the file is stamped that that record might not be disclosed outside of the criminal justice department.
The local law enforcement agency responsible will make sure this info appears in all the master copies, either digital or those of the law enforcement investigative report associated with the sealed arrest record.
Your sealed arrest records, court records, or law enforcement investigative reports shall not be disclosed or released to any entity or person except you or criminal justice agencies, which might use the info as provided by law.
Sealing an Arrest Record as a Matter of Right
As per the old statute (PC 851.8), an arrestee had the burden to prove that they were factually innocent. But under the new law (Penal Code 851.87/SB 393), the burden shifts to the prosecuting attorney to show that the arrestee is not entitled to have their record sealed, for example, because the charges against them can still be filed or because of a domestic violence history.
Almost everybody qualifies for their arrest records to be sealed as a matter of right (automatically). What matters is the arrest didn’t result in sentencing, and there aren’t any exceptions.
The Deadline for Filing a Petition for Record Sealing
Under the previous law (PC 851.8), a person had only two years from when they were arrested or from when the charges were filed to file a petition seeking to seal his/her arrest record. But under the new law (PC 851.87), the time limit to petition does not exist.
Nevertheless, we recommend that you file your petition as soon as you are statutorily eligible. A skilled criminal attorney can assist you in determining if you’re eligible to bring your petition.
Who Qualifies to Seal Their Arrest Record?
PC 851.87 allows everyone the right to get their record of arrest sealed, provided the arrest didn’t result in sentencing. For PC 851.87 purposes, an arrest is considered not to have resulted in sentencing if any of these apply:
The prosecution did not file any charges, and the timeframe to bring every possible charge has already expired.
The prosecuting attorney filed charges, but they were afterward dismissed and can’t be re-filed (for instance, due to a PC 995 motion)
The prosecutor filed charges, but the accused was acquitted (i.e., found not guilty) at trial.
Charges were dropped after the accused completed a pre-sentencing or pretrial program like drug diversion successfully.
The accused was sentenced, but the sentence was reversed or vacated after they appealed and those charges cannot be re-filed
Keep in mind that only the record that didn’t result in sentencing can be sealed. If a conviction has already occurred, you can’t have it sealed, but you may, instead, be capable of having it dismissed per PC 1203.4.
Who Doesn’t Qualify to Have Their Arrest Record Sealed in California?
You aren’t entitled to have your record of arrest sealed if any of these is true:
You could still be charged with the crime you were arrested for since the deadline hasn’t expired, or the D.A can refile charges.
Your arrest was for murder or any other offense whose prosecution doesn’t have a statute of limitations (except if you were found factually innocent or acquitted of the charge)
You weren’t prosecuted because you intentionally evaded the police’s efforts to charge you, for instance, by escaping from the jurisdiction.
You dodged the police efforts to charge the arrest by committing identity fraud and were subsequently charged with an offense for that identity fraud act.
A Sealed Record Can Still Be Legally Used
Even though sealing your record will effectively destroy it for almost all purposes, it does not erase entirely. The sealed record can be pleaded and proved if you’re subsequently charged with any other crime. Also, in the routine course of their duties, criminal justice agencies may access the record and disclose to other agencies of the law enforcement to an equal extent as though it hadn’t been sealed.
Record sealing also doesn’t relieve you from:
Any lawful prohibition against the holding of public office, which may have resulted from your arrest
Any present duty of registration as a sex offender under PC 290
Prohibition against possessing or owning a gun or vulnerability to being convicted of violating felon with a firearm law
The duty to reveal your arrest as the statute requires when responding to direct questioning during an application for employment as a peace officer, a contract with the California State Lottery Commission, public office, or licensed by a local or state agency.
Note that record sealing applies only to the specific arrest you are contesting. It doesn’t erase your entire criminal history. If you want to seal every arrest on your record, then submit a distinct petition for every arrest in your criminal history that didn’t lead to a conviction.
What You Can Do If Your Sealed Record is Disclosed or Released
If a person disseminates your sealed arrest records improperly, they will face a civil punishment of a fine ranging from $500 to $2500 per violation. This penalty can be imposed by the district attorney, city attorney, or Attorney General.
Additionally, you may also be entitled to file a suit to seek compensatory damages, and possibly punitive damages (in case the defendant acted intentionally or recklessly).
The Difference Between Arrest Record Sealing and Juvenile Record Sealing
Sealing & destroying adult arrest records under Penal Code 851.87 is an entirely different process from juvenile record sealing. You can have your juvenile criminal record sealed if:
You’re presently an adult, or the juvenile court jurisdiction terminated it at least five years ago
There’s no pending civil lawsuit to do with the juvenile case
As an adult, you haven’t been sentenced for any offenses that involve moral turpitude (i.e., offenses involving immoral behavior or dishonesty).
The Advantages of Sealing Your Arrest record
A criminal record is a public record, meaning anybody can access another’s criminal history. Potential employers, insurance companies, state licensing agencies, apartment owners, or potential dating partners may conduct background checks and view your criminal history. These kinds of people might not consider whether your arrest was justified or led to a conviction.
The California ban-the-box statute (codified under AB 008) forbids employers to consider job applicants’ arrest records that didn’t ultimately result in a conviction. At the same time, however, an employer may dismiss a job candidate because of his/her arrest record without ever mentioning this.
After a record of the arrest is sealed as per Penal Code 851.87, the public won’t be capable of seeing it anymore. The record of arrest, photos, fingerprints, court records, and police investigative reports, won’t be accessible except for restricted use by criminal justice agencies or California State.
When this happens, you will have the following advantages:
You can legally and truthfully answer ‘NO’ on private-sector job applications if you are asked if you’ve ever been placed under arrest.
You could be entitled to more kinds of professional certificates and licenses.
You can significantly increase your wage capacity since you will be eligible for several employment opportunities.
You can qualify for higher student loans.
You can [legally] truthfully tell your family and friends that you’ve never been placed under arrest.
You could be entitled to better housing assistance.
Hire a Record Clearing Attorney Near Me
Wrongful arrests in California happen all the time and the record for such arrests may haunt you forever. There’s no reason you should allow this to happen. At the Clear My Records law firm, we may be capable of getting you a relief by having your record sealed. We have lawyers who know the California record clearing statutes and are aware of the entire arrest record sealing process, which significantly maximizes the odds of achieving the best possible results. Our attorneys are ready to help regardless of the part of California in which you reside. All you need to do is contact and share your situation with us, and we take it from there. We are more than glad to assist you in putting an arrest record that could ruin your life behind you, enabling you to forget about the past and have a new beginning.