Year in year out, thousands of innocent people are arrested for crimes they never committed. In fact, most of these arrests do not end up in conviction. Even though California law proscribes any employer from inquiring about arrests that never resulted in a conviction, somehow, these arrests have shown up on criminal background checks. In the past, a petitioner interested in getting an arrest record sealed had to convince a judge that he/she was innocent of the charges that resulted in their arrest; a near impossibility.
Most of the individuals who are arrested and never convicted do not realize the importance of taking legal action to have their arrest records removed from the public. Failure to do so can haunt you for the rest of your life as it can affect your aptitude to obtain a security clearance, get employed, join the military, pursue opportunities for career advancements by acquiring certificates or be admitted to certain universities and colleges.
But with the new California law, individuals who were arrested but never convicted can now have their California arrest records sealed as a matter of right. This means that the record will not appear on most criminal background checks in California, with the exception of law enforcement agencies. The new law started out as California Senate Bill 393, which was signed into law by Governor Jerry Brown on October 11, 2017. It’s now codified in various Penal Code sections, one of them being California Penal Code 851.87 PC. Under this section, an arrest is not considered to have resulted in a conviction if either of the following applies:
- No criminal charge was filed and the statute of limitation on the charges has expired,
- The criminal charges were filed but then they were dismissed and cannot be refiled
- The defendant’s conviction was overturned on appeal or vacated and the charges cannot be refiled,
- The defendant was acquitted in a jury trial,
- Charges were dismissed after the defendant effectively completed a presentencing or pretrial diversion program like Penal Code 1000 deferred entry of judgment, or Prop 36 drug treatment.
There are some exceptions to PC 851.87. In essence, if the petitioner’s record shows a pattern of child abuse, elder abuse, or domestic violence, then they cannot have their arrest record sealed as a matter of right. Nevertheless, such petitioners can still have their arrest records sealed, especially if doing so would be in the interests of justice. For example, a record can be sealed if disclosing it would result in hardship to the petitioner. It important to note that only the arrests that didn’t lead to a conviction can be sealed. Those convicted of a crime can get their conviction expunged under California Penal Code 1203.PC. Compared to record sealing, expungement is a more difficult process since the defendant has been convicted of, or has pleaded guilty of “no contest” to a crime.
If you were arrested for a particular crime but was never convicted, speak with a seasoned Record Expungement Attorney today about the possibility of having your arrest record sealed. Contact us at 424-835-9505.
BENEFITS OF SEALING AN ARREST RECORD UNDER PC 851.87
Criminal records are public records and this implies that a person’s criminal history can be accessed by just about anyone. Apartment owners, potential employers, insurance companies, state licensing agencies, and even prospective dating partners can run a background check and access an individual’s criminal history. The unfortunate thing is that such individuals may not bother to find out if the arrest was justified or resulted in a conviction.
Under California's AB 1008 ("ban the box" law), employers are proscribed from considering an applicant’s arrest that never resulted in a conviction. However, some employers may still choose to dismiss some job applicants based on their arrest records without stating this as the reason.
But once the arrest record is sealed under Penal Code 851.87, it will no longer be in the public domain. The arrest record, fingerprints, photos, court records and police investigative reports, will be inaccessible except for limited use by the criminal justice agencies or the state of California.
WHY WAS CALIFORNIA SB 393 WAS INTRODUCED?
Before SB 393 was enacted, it was troublesome for individuals to get their arrest records sealed. As already mentioned, even when the prosecutor never filed the charges or the charged were indeed filed and later dismissed, the person typically had to demonstrate to a judge that he/she was factually innocent.
As a result, the arrest record would then appear on the criminal background checks run by prospective employers, apartment owners, and others. This would lead to biased judgment and discrimination against innocent individuals. Thanks to the new law, all an individual must do is to show a judge that the arrest never led to a conviction. As such, the burden of proof shifts to the prosecutor to demonstrate that the applicant is not entitled to have their arrest records sealed, which, for instance, maybe because of a background or pattern of domestic violence.
THE LEGAL MEANING OF “AS A MATTER OF RIGHT”
Under the previously used PC 851.8, the burden of proof was on the person who was arrested as he or she was required to show “factual innocence.” But under SB 393/PC 851.87 the burden of proof shifts to the prosecutor to demonstrate that the applicant is not entitled to have his/her arrest records. As such, you’re automatically eligible to have your record sealed if the prosecution fails to convince the judge that you’re not innocent. Nearly everyone is entitled to have their arrest records sealed as a matter of right as long as the arrest leads to a conviction and no exemptions apply.
WHO IS NOT ELIGIBLE FOR RECORD SEALING IN CALIFORNIA?
An individual cannot qualify to have their arrest sealed if any of the following apply:
- The arrest was for a crime for which the statute of limitations does not apply such as murder
- There’s a possibility for the person to be charged with any of the offenses upon which the arrest was based,
- The individual interfered with the efforts to prosecute the arrest through identity fraud and was consequently charged with a crime for that act of identity fraud,
- The individual was not charged because he/she intentionally fled from the jurisdiction in which the offense occurred
A "PATTERN" OF DOMESTIC VIOLENCE UNDER PENAL CODE 851.87
An individual is not entitled to seal an arrest record as a matter of right if their criminal record shows a pattern of child abuse, domestic violence, or elder abuse. A “pattern,” under SB 393 and new California PC 851.87 is defined as five or more arrests or two or more convictions within a 3-year period. However, one can still appeal to have the arrest records sealed on the basis that doing so would serve the interests of justice. It’s important to consult with your attorney on the applicability of this move. There are several aspects that the judge may want to consider when determining whether or not to seal a record, including:
- The petitioner’s record of conviction,
- Evidence or declarations regarding the arrest,
- Evidence or declarations regarding the petitioner’s good character, or
- Hardship to the petitioner instigated by the arrest that is the subject of the appeal.
CAN ALREADY SEALED ARREST RECORD BE LEGALLY USED IN CALIFORNIA?
Despite the fact that sealing an arrest record successfully destroys it for numerous purposes, it doesn’t completely cease to exist. If the defendant is consequently prosecuted for any other crime, the sealed arrest record may be pleaded and proved. Furthermore, in the regular course of duties, a criminal justice agency may access and disclose the arrest record to other law enforcement agencies in a manner that would appear as if it was never sealed. Also, sealing an arrest record doesn’t relieve the petitioner from the following:
- Any legal prohibition against holding public office,
- Any prohibition against possessing or owning a firearm or vulnerability to convictions for violating “felon with a firearm” law,
- Any prevailing duty to register as a sex offender as provided under PC 290,
- The duty to divulge the arrest record as required by the law in response to a direct question on an application for public office, licensing by any state or local agency, employment as a peace officer, or a contract with the California State Lottery Commission.
DEADLINE FOR MOVING TO SEAL AN ARREST RECORD
Under the old Penal Code 851.8, an individual had a maximum of two years from when they were arrested or the filing of charges to petition for record sealing. This is not the case with Penal Code 851.87 as there is no time limit for petitioning. However, we recommend filing a record sealing petition as soon as it’s no longer possible for the prosecutor to file or even refile charges. A seasoned Record Expungement Attorney can help you determine whether and when you’re eligible to file for relief.
UNDERSTANDING THE PROCESS FOR SEALING AND DESTROYING ARREST RECORDS
FILING THE PETITION
In California, a petition to seal an arrest record must be filed either:
- In the same court in which the charges filed, or
- In the city or county in which the arrest took place when it comes to cases in which the charges were not filed
The petition must subsequently be served on both the law enforcement agency that made the arrest and the prosecuting attorney of the city and county in which the arrest took place.
Information that must be included in the petition includes:
- The petitioner’s personal information, include his or her name and date of birth
- The city and county in which the arrest occurred
- The date of the arrest for which the sealing is sought
- The name of the law enforcement agency that made the arrest
- The alleged offenses that served as the basis for the arrest or charges being filed
- Any other relevant information concerning the arrest, like the case or court number.
- A statement that the petitioner is entitled to record sealing either as a matter of right or in the interest of justice
- A statement describing how interests would be served by granting the petition and declarations in support if the petition is based on the interests of justice.
If the District Attorney challenges the petition, a hearing will be scheduled by the court. Whether you must personally appear in court or your criminal defense attorney can appear on your behalf for the proceedings will be determined by your county of residence. During the hearing, the judge will scrutinize the arrest record and evidence (where necessary) of how your record sealing serves the interests of justice. At this point, it’s critical to hire a skilled California record expungement lawyer because the judge has all the discretion to grant or deny your motion to seal and destroy your arrest records. Also, the judge can deny you motion with preconception to make sure that you do not re-file your appeal.
A responsible, dedicated attorney will handle your case with the seriousness it deserves, they will carry out a thorough research and ensure that all the necessary paperwork is completed correctly the first time. This will help ensure that there is no time wasted due to inadequate or incomplete forms. Furthermore, he/she will conduct the PC 851.87 hearing and even argue your case to the judge.
AFTER HOW LONG WILL YOUR ARREST RECORD BE SEALED AND DESTROYED?
Usually, it takes approximately 90 days after filing a petition for one to obtain a court order to seal a California arrest record. In thirty (30) days of the court’s issuance of the order, the court will acquaint:
- The law enforcement agency that oversees the master criminal history records,
- The law enforcement agency that made or took part in the arrest, and
- The California Department of Justice.
Subsequently, the petitioner’s master criminal record and the court record will be updated to indicate the arrest record has been sealed. The file is stamped to ensure that the record is never released outside the criminal justice sector. Any arrest record, court records, and police investigation reports sealed under this section shall not be disclosed to any entity or person except to the person whose arrest was sealed or a law enforcement agency, which has the jurisdiction to use the information to the same extent as if the record has not been sealed.
STEPS TO TAKE WHEN A SEALED ARREST RECORD IS RELEASED
Improper dissemination of a sealed arrest is a civil offense punishable by a fine of between $500 and $2,500 per violation. The penalty may be applied either by a district attorney, city attorney, or the Attorney General. The affected individual may as well have the right to bring a lawsuit for compensatory damages or even punitive damages, particularly, if the release was deliberate or reckless. At Record Expungement Attorney, we offer free, no-obligation consultations to individuals who have suffered damages due to unlawful release of their sealed arrest records.
DIFFERENCE BETWEEN SEALING ARREST RECORDS AND SEALING JUVENILE RECORDS
There is a huge difference between sealing and destroying an adult arrest record under Penal Code 851.87 and sealing a juvenile record. You qualify to seal your juvenile criminal record if:
- There is no pending civil lawsuit based on the juvenile case,
- You’re now an adult, or the juvenile court’s jurisdiction terminated at least 5 years ago, and
- As an adult, you haven’t been convicted of any crimes that involve dishonesty or immoral behavior (crimes involving moral turpitude).
If you were arrested and your case was then dismissed or rejected in court, there is absolutely no reason why you shouldn’t get this remedy. At Record Expungement Attorney, we take pride in having an established arrest record sealing practice. Our lawyers are well versed with the statutes, the benefits of record sealing, the process involved as well as the ins and outs of fighting on behalf of our clients. An arrest record stuck on your name can be easily accessed by any individual who runs a background check. We can help determine whether you’re eligible, and if you were convicted for the crime, we can certainly help you expunge the criminal record. We serve clients in the greater Los Angeles, Long Beach, and Valley Area. Call our offices any time 24/7/365 at 424-835-9505 for a consultation if you’d like to learn more about California criminal record sealing or would like legal representation in this area.