In California, hundreds of thousands of people are cited or arrested for various felonies or misdemeanor crimes yearly. But of all the arrested persons, most cases are never officially filed as criminal charges. Still, many other cases are formally filed, but the prosecutors later drop them for various reasons. When that happens, most people do not realize they still have to pursue legal action to keep the arrest records off their rap sheet (criminal record), which is accessible to the public.
There is no doubt that a criminal arrest record can affect the rest of your social, professional, and personal life. For example, it can affect where you reside and your capability to secure employment, enroll in college, or become a military member. Under California law, anybody arrested within the state but not found guilty can request that a judge seal the arrest records.
However, you must meet the stipulated legal requirements and work with an experienced attorney to seal your record successfully. At Michele Ferroni Pasadena Criminal Attorney Law Firm, we are highly experienced in post-conviction relief matters, including record sealing. If you were arrested in Pasadena, come to us, and we will help you eliminate the stigma your arrest records are making you go through by sealing them completely.
Record Sealing Overview
Sealing records refers to a state storing criminal records away from public access. The record-sealing process varies across states, with some states and federal courts not recognizing the option. However, only courts can usually seal records in states that carry out the process.
California law allows the sealing and destruction of individual records if someone is arrested for a crime but the arrest does not lead to their conviction. If arrest records are sealed, it does not reflect on most criminal background checks within California. Arrest records that can be destroyed include police reports, booking photos, rap sheet entries, and fingerprints.
The CARE Act
Per the previous law on sealing records, it was challenging for a person to seal their arrest records. Essentially, the person had to file a factual innocence petition under 851.8 PC and prove that they should never have been detained in the first place, even if the D.A. never brought charges or they or the judge later dismissed those charges.
The arrest records would then appear on the background checks conducted by potential landlords, employers, and others, resulting in discrimination against blameless people.
The law has since evolved, and it now allows record sealing as a matter of right, making it easier to have arrest records sealed in California. The current statute regarding sealing arrest records originated as Senate Bill (SB) 393 that Jerry Brown, the then Governor of the state, signed into legislation on October 12, 2017. Called the C.A.R.E Act (Consumer Arrest Record Equity Act), SB 393 was effected on January 1, 2018, and is currently codified under PCs 851.87 and 851.91.
The Senate Bill amended the law by adding Penal Codes 851.92, 851.87, and 851.91. These changes have made it easier for a person to seal records if they were arrested for an offense but not convicted.
Unlike the old statute, under which the arrestee had to prove they were factually innocent, the burden of proof does not lie on the arrestee under the current law. As per SB 393, all an individual should do to seal their arrest records is prove their legal innocence to the judge (that is, demonstrate that their being arrested never led to any conviction). The burden of proof will then shift to the D.A. to demonstrate that the person is not qualified to seal their record. This is the so-called sealing of an arrest record as a matter of right.
Almost everybody has the legal right to seal their arrest record as a matter of right. The key element is that the arrest never led to any conviction, and there are no exceptions.
As of July 1, 2022, the state started automatically sealing 12-month-old convictions and arrest records for misdemeanor crimes, provided the arrestee complied with all conditions and did not violate any other law.
With the enactment of SB 731, the state will, on July 1, 2023, start automatically sealing most felony conviction and arrest records if the arrestee has not violated any other law for the last four years since their conviction or arrest. The state will also start automatically sealing arrest records that did not lead to a conviction. Although the process of automatically sealing arrest records excludes persons found guilty of violent or serious felonies. These individuals would still have to file a petition formally requesting record sealing.
When you seal your arrest records, it will seem like the arrest never happened. Consequently, you can comfortably say "no" if state licensing bodies and potential landlords and employers want to know whether you have a history of being arrested.
As mentioned, after you seal your arrest record, it will not appear publicly on criminal background checks. But sealing an arrest record does not prohibit its disclosure to the U.S. Department of Justice or a state government agency. Additionally, a sealed record is not completely erased. The authorities can still use it against you should you be charged with a new crime.
If you apply for specific jobs, you will still be obliged to inform your employer about your arrest record, for example, if you have applied to be a law enforcement officer, to acquire a state license, or to hold public office.
Lastly, sealing your arrest records will not relieve you of your duty to comply with the sex offender registration requirement under PC 290 or the prohibition against possessing or owning a firearm.
Eligibility for Sealing Arrest Records
Not everybody with a criminal arrest record qualifies for record sealing. According to 851.87 PC and 851.91 PC, you qualify to seal your arrest records if the following is true:
- The prosecution did not file criminal charges against you, and the timeframe for filing possible infraction, misdemeanor, or felony charges has expired (PC 851.91).
- The prosecution filed criminal charges but dismissed them later and cannot refile (for example, because a PC 995 was successful) (PC 851.91).
- The prosecution brought charges, but the court acquitted you (found you not guilty) in a trial (PC 851.91).
- You completed a pre-sentencing or pretrial diversion course, like the 1000 PC deferred entry of judgment, and the court dismissed the charges against you (851.87 PC).
- You were found guilty, but the court overturned or vacated the conviction on appeal, and there is zero chance of refiling the charges (PC 851.91).
Ineligibility for Sealing Arrest Records
There is an exception to sealing arrest records as a matter of right. You do not qualify to seal an arrest record as a matter of right if your criminal history reveals a pattern of elder or child abuse, or any domestic violence crime. 851.91 PC defines a "pattern" as more than one conviction or more than four arrests for the mentioned crimes within three years.
But even if you fall under this classification, the judge can still agree to your record-sealing request if they determine that doing so serves the interests of justice.
In establishing whether sealing an arrest record serves the interests of justice, judges will look at any relevant facts, including but not limited to:
- Your conviction record.
- Evidence or declarations concerning the arrest.
- Evidence or statements concerning your good character.
- Hardship to you due to the arrest for which you are seeking a record seal.
You may also not qualify to seal your arrest records if the following is true:
- You evaded the police efforts to arrest you by participating in identity fraud and were subsequently charged with an offense for that identity fraud act.
- You were not charged as you deliberately evaded the police efforts to make the arrest, for example, by fleeing from the jurisdiction.
- The arrest record is for a murder crime or an offense that does not have the timeframe for filing charges (unless you were ruled factually innocent or acquitted of the charges).
- You could still be prosecuted for the crime on which the arrest record is based.
California employs strict rules concerning record-sealing petitions. The following is a brief overview:
The first step you will take is to file a petition requesting record sealing. You must file this petition with either the county or city where the arrest happened if the prosecutor did not file charges or the superior court where the D.A. filed charges based upon the arrest. You must then lawfully serve the petition to the police agency that arrested you and the D.A. of the county or city where your arrest happened. Serving the petition is essential. The judge may dismiss the petition if you do not serve the papers properly.
PC 851.91 dictates that any petitioner accompany these details with their petition for arrest record sealing:
- Their name plus birthdate.
- The name of the police agency that conducted the arrest.
- The county in which your arrest occurred.
- The city where your arrest occurred.
- The date and time of the arrest for which they are seeking sealing.
- Any other available details regarding the arrest, for example, a court, docket, or case number.
- Information regarding the crime for which they were arrested.
- A declaration that they have the right to record sealing in the interest of justice or as a matter of right.
- If their petition is contingent on the interests of justice, a declaration of how agreeing to the petition plus supporting statements will serve that interest or interests.
The more details you give, the better. Do not attempt to conceal any information; the authorities will uncover it in due time anyway. You must file the petition at least fifteen days before the hearing. After you file the petition, the court reviews it, as does the D.A. to whom you served a copy.
The Court Hearing
Once the court has reviewed the petition, it can grant it or hold a hearing at the DA's request. The judge holding a hearing means the D.A. has serious concerns regarding sealing your records. The D.A. is usually concerned if a petitioner seeks to seal their record in the interest of justice, especially when the petitioner's criminal history shows a pattern of elder abuse, child abuse, or domestic violence. But if a petitioner has requested record sealing as a matter of right, the D.A. usually has no concerns, and therefore a hearing is unnecessary.
The county where you reside will decide whether you should personally attend the proceedings or if your legal counsel can appear for you. The prosecution and your lawyer present and argue the evidence during the proceeding. You, as the petitioner, have to show the judge why they should seal your record. The prosecution will then have the burden of proving you are not eligible for sealing the record.
The judge will then review the arrest records and the submitted evidence to show why sealing serves the interests of justice. After the review, they can issue a court order granting or dismissing your request. If they dismiss the petition with prejudice, you will be prevented from re-petitioning to seal that specific arrest record.
Since the judge possesses significant discretion in determining whether or not to grant your petition, and since they can turn down your request with prejudice, you want to hire an expert criminal defense lawyer to assist you. A knowledgeable lawyer will rigorously investigate your arrest and ensure paperwork is correctly completed so they do not lose time due to inadequate and incomplete forms. They will also represent you at the 851.87 PC hearing and present your arguments.
It generally takes three months after petitioning the court to grant a sealing order. Within one month from the day the court issued a sealing order, it will inform:
- The police agency administering the master criminal history records.
- The police agency that was involved in or conducted the arrest.
- The state department of justice.
Your court record and master criminal record are updated to show the arrest record is sealed and the file is stamped so no one may use the arrest record outside the justice system.
The local police agency in charge will ensure it includes this information in every master copy, whether digital or not, of the official police investigative reports connected to the sealed and destroyed arrest record.
No entity or person can access court records, investigative reports by the police, or arrest records sealed as per this law except a criminal justice agency and you, as the person the record belongs to. Note that a criminal justice agency can use the arrest records the same way as though they were not sealed.
If someone improperly disseminates your already sealed records, you can file a civil penalty, and the responsible person may be subject to a penalty ranging from 500 to 2,500 dollars for every violation. This fine can be ordered by the Attorney General, a district attorney, a city lawyer,
You can also claim economic, non-economic, and, in some cases, punitive damages. Punitive damages are awarded when the release of the arrest record was intentional or reckless.
The Deadline to Request Record Sealing
According to the old law, people had two years, counting from the day of the arrest or the filing of charges, to request the record sealing. Under 851.87 PC, a timeframe for filing the petition is yet to be set.
Therefore, you can seal your record right after it is clear that the prosecution cannot refile or file charges for the conduct for which you were detained. This means your lawyer must establish when the deadline for filing or refiling charges is for the offense for which the police arrested you. You can only petition for record sealing if the D.A. is no longer entitled to legally file charges because of the elapsing of the stipulated statute of limitations.
Benefits of Arrest Record Sealing
A person’s criminal history is considered public, meaning anyone can access it. Potential employers, state licensing bodies, apartment owners, insurers, financial institutions, universities, colleges, and schools, or even potential suitors, can conduct a criminal background check, enabling them to view another person's criminal record. These parties may not care whether the arrest was warranted or the arrestee was convicted as a result
As per Assembly Bill 1008, the state's "ban the box" statute, an employer should not consider a job candidate's arrest that did not result in their conviction. However, employers may dismiss job applicants due to their arrest history without mentioning it.
But after successful record sealing, the public cannot see or access it. The record, law enforcement investigative reports, court records, fingerprint records, and photos will not be accessible or seen except by a criminal justice agency or the state for limited use. This way, you need not experience the anxiety and stress of somebody discovering a mistake you committed before. In short, sealing your arrest record gives you a fresh start.
How a Lawyer Can Help
You could try navigating the record-sealing process by yourself. But like all criminal processes, you must follow strict procedures and rules. A single misstep could lead to the court dismissing your petition, preventing you from having a fresh start. When you retain a lawyer, their extensive experience and in-depth knowledge of state law can be helpful. A lawyer can help you with the following:
- Determining whether you qualify to seal your record.
- If necessary, crafting a solid argument on why sealing the arrest record serves the interest of justice.
- Filing the petition for sealing your record.
- Identifying and serving the petition to the interested parties.
- Representing you during the hearing, if the prosecution had requested one.
Arrest Record Sealing vs. Juvenile Record Sealing
The state does not want your childhood legal mistakes adversely affecting your adulthood. But your juvenile record may not automatically cease to exist once you turn 18. In most cases, you must take legal action to seal a juvenile record.
Sealing arrest records per 851.87 PC and 851.91 PC is a process that entirely differs from sealing juvenile records. You qualify to seal your juvenile record if:
- You are at least eighteen years and have satisfied all required sentences and probation terms.
- As a grownup, you have never been found guilty of any crime of moral turpitude (crimes involving immoral behavior or dishonesty).
- You are presently a grownup, or the juvenile court's jurisdiction terminated not less than five years ago.
- You do not have unresolved civil litigation related to the juvenile act.
The juvenile record sealing process is described under WIC (Welfare and Institutions Code) 781. Speak to an experienced criminal defense lawyer to know how the process works and how they can help you with the process
Record Sealing Vs. Record Expungement
Record sealing and record expungement are two different processes. Expungement entails removing a felony or misdemeanor conviction from a person's criminal record if the person was not sentenced to prison time. But the entire record is not wiped clean. Still, there will be evidence that the person had trouble with the law.
On the contrary, record sealing eliminates any sign that a person has ever been arrested for an offense. So, eventually, whether the person needs to seal or expunge their record will be based on whether criminal charges were filed and a conviction took place.
Find an Experienced Record Sealing Lawyer Near Me
At Michele Ferroni Pasadena Criminal Attorney Law Firm, we understand how important it is to protect all our clients' rights in all aspects. That is why we do everything possible to give them the privacy they deserve by helping them seal their arrest records. If you were arrested in Pasadena and need assistance sealing your record, do not hesitate to call us. You need to relive your past legal mistakes every time somebody conducts a background check on you. Allow us to give you the fresh start you deserve. Call us at 626-628-0564 for more information on how we can help you.