Sealing your arrest record can help seal your criminal arrest record especially when you don't want your criminal history to be used against you in future. At Vista DUI Attorney, our work is to give you the legal advice needed to have your arrest records sealed lawfully. With our practice areas including DUI crimes and DMV suspensions among others, we target inhabitants of North County and Vista, California. Our criminal defense attorneys prepared this guide to enable you to understand the requirements and procedures involved in sealing arrest records.
What are the California Laws on Sealing Arrest Records?
On 11th October 2017, California’s Governor (Jerry Brown) officially signed Senate Bill 393 (SB 393) into law. SB 393 currently covers various California Penal Code sections, which include Penal Code 851.87 (California’s law on sealing arrest records). When you choose to seal your arrest record, most results for criminal background checks won’t include your arrest record. PC 851.87 highlights the following requirements for having your arrest record sealed:
- The law enforcement officer didn’t file any criminal charges against you
- The officer later dismissed the charges filed against you (as a result of a motion filed under Penal Code 995)
- A jury trial found you “not guilty” of the alleged crime
- You completed a pre-sentencing program or pretrial diversion
- You had your conviction overturned or vacated on appeal
If you have a criminal conviction, you should have the conviction expunged according to the requirements of Penal Code 1203.4. Expungement may prove to be a difficult procedure since you'll have pleaded "no contest" or not guilty or have been convicted for committing a particular crime. PC 1203.4a(1) highlights that you can have your "no contest plea" or "guilty plea" withdrawn provided that you fulfill the requirements of your probation. You can only have your conviction expunged if you aren't serving a sentence for any crime.
You may be ineligible to seal an arrest record under SB 393 if any of these conditions apply to your case:
- The officers charged you with any of the crimes that were based on your arrest
- The officers arrested you for murder or an offense with no statute of limitations, and you weren't acquitted or found innocent of the charges
- The officers didn’t charge you for intentionally evading their efforts for prosecuting your arrest
- You engaged in identity fraud as a way of evading the officer’s efforts to prosecute your arrest and the officers subsequently charged you for committing identity fraud
What are the Benefits of Having Your Arrest Records Sealed?
In California, your criminal record is a public record, which means that prospective insurance companies, state licensing agencies, apartment owners or employers may access it. Entities or individuals can conduct background checks on your criminal history to see whether you were previously arrested. If they want to use the arrest record to deny you of any opportunities, they'll care less about the factors that led to your arrest or whether the arrest led to a criminal conviction.
AB 1008 (California’s Fair Chance Act) prohibits prospective employers for referring to your arrest record to hire you. The Fair Chance Act got enacted on 1st January 2018 to apply to employers with over five employees working for them. Also known as "Ban the Box" law, AB 1008 entitles you to not having your arrest record used against you if your arrest didn't result in any conviction. Remember that a prospective employer may consider your arrest record (if it's not sealed) when dismissing your job application without mentioning it.
Once you get an arrest record sealed as stipulated under Penal Code 851.87, the public won't manage to view it. Your court records, fingerprints, photos (mugshots) and police investigative reports will also not be accessible to members of the public. The State of California and agencies focusing on criminal justice are the only entities allowed to access these files.
How Does SB 393 Help in Having Your Arrest Record Lawfully Sealed?
Before SB 393 was passed into law, it was hard to get your arrest record sealed especially if your arrest didn't lead to any conviction. Through your legal counsel, you had to give proof to the judge regarding your factual innocence. The judge would still demand you to do this even if no charges were filed against you or you had the charges dismissed.
Since sealing an arrest record was difficult back then, prospective landlords, employers and other entities would find records of your arrest when running criminal background checks on you. These entities would then disqualify you from benefiting from various opportunities without considering whether your arrest was justified or it led to a conviction. Today, SB 393 allows residents of California to get their arrest records sealed once they prove to a judge that their recent arrest didn't lead to any conviction. Under this law, it is the burden of the prosecution team to prove that certain factors (such as a history of domestic violence) prevent you from having the record sealed.
Which Crimes Make You Ineligible to Seal an Arrest Under SB 393?
If your criminal record indicates a pattern of elder abuse, child abuse or domestic violence, you aren’t entitled to have your California arrest record sealed under Senate Bill 393. The word “pattern” can be defined as five or more than five arrests or two or more than two convictions made within three years under Penal Code 851.91 2(a)(ii). You may still be allowed to seal the record provided that such a course of action has the "interests of justice" at hand. A California judge can consider the following factors to establish whether sealing an arrest can serve the interests of justice:
- Your conviction record
- Hardship you suffered due to the arrest
- Evidence or declarations about the arrest
- Evidence or declarations about your good character
How Can Your Sealed Arrest Record Legally Be Used Against You in California?
When prosecuted for any other crime, a criminal justice agency may use your arrest record (the sealed one) to plead or prove your case. Criminal justice agencies have the mandate to access or disclose to law enforcement officers the information contained in your arrest records (whether sealed or not). Sealing them won't relieve you from:
- Any legal statute limiting you from holding public office with an arrest record
- Any legal statute limiting you from possessing or owning a firearm or a felony conviction for possessing a firearm
- Any current obligation (under PC 290) to register as a California sex offender
- The legal obligation to share your arrest record when responding to a direct question asked in an application for a contract with California's State Lottery Commission, a state/local agency license, a job as a peace officer or a public officer job
What’s the Deadline for Sealing an Arrest Record?
Penal Code 851.8 highlights that the deadline to file for a petition to seal your arrest record is two years from the arrest date. On the other hand, PC 851.87 doesn't give a time limit for filing this petition. Either way, our lawyers recommend you to have the petition filed early to prevent giving the prosecutor an opportunity to file or refile any charges against you. Have a proficient criminal attorney help you establish your eligibility to file for this kind of relief.
What Does the Process of Sealing Arrest Records in California Entail?
The first procedure in sealing arrest records is to file a petition with a California court. You're mandated to file this petition if the arresting officers didn't file charges in the county or city in which they arrested you. You should also file it in the California court in which the charges based on your arrest were filed.
The law enforcement agency that facilitated your arrest and the prosecuting attorney of the county or city in which you were arrested must be legally served with the petition, which must include:
- Your full names and date of birth
- The arrest date
- County and city in which the officers arrested you
- The alleged crimes the officers used to base your arrest or charges
- Other relevant information (such as a court or case number) surrounding the arrest
- Name of the particular law enforcement agency that facilitated the arrest
- A statement indicating your entitlement to have your arrest sealed in the interests of justice or as a matter of right
- A statement indicating how the interests of justice can be served once granted the petition and other declarations (if your petition is purely targeted at serving the interests of justice)
A California court may schedule a hearing if the District Attorney (D.A) contests your petition. Note that your county of residence may determine whether a criminal defense lawyer can appear in court on your behalf or whether you'll personally make the court appearances. Expect the judge to examine your arrest record together with any evidence indicating how sealing it can promote the justice interests.
Since a California judge has the discretion to deny or grant a request to seal your arrest records, you should have a skilled lawyer help you throughout the process. Remember that the judge may even decide (with prejudice) to deny your motion and make it difficult for you to re-file your petition. A criminal defense attorney helps save the time and pressure related to your case by ensuring that all paperwork is done and filed correctly. You can also rely on legal representation to argue your petition in a hearing.
How Long Does it Take When Sealing Arrest Records in California
Getting a court order for sealing an arrest record takes approximately ninety days after filing a petition for the same. Once you're issued with the court order, expect the court to notify the California DOJ (Department of Justice) and the law enforcement agency administering master criminal history records. Expect the court to also share the court order with the law enforcement agency that participated in or made the arrest.
Upon receipt of the court order by the relevant parties, your court record and a master criminal record can be updated. Such a course of action implies that your arrest record has officially been sealed. Your file can then be stamped to indicate that its contents aren't accessible to the members of the public or entities not covered in the criminal justice industry.
The local law enforcement agency that facilitated your arrest must have information about your sealed arrest record included in the digital, master or other copies of the police investigative report. The officers can disclose court records, police investigative reports and arrest records to you. They can disclose the same to a criminal justice agency if the need arises.
Is There a Remedy for an Improper Release of Your Sealed Arrest Records?
The Attorney General, District Attorney and city attorney can enforce certain civil penalties to entities or individuals for improperly disseminating your sealed arrest information. Fines for each violation range from $500 to $2,500. As the affected party, you can have your personal injury attorney file a lawsuit seeking compensatory damages. If the release was intentional or reckless, you could even demand punitive damages in your lawsuit.
Are There Any Differences Between Sealing Juvenile Records and Sealing Arrest Records?
If you have a juvenile criminal record, consider filing a petition to have it lawfully sealed as stipulated in California’s Welfare and Institution Code 781. For the record to be sealed, you shouldn’t have been convicted in a California juvenile court for severe offenses (such as robbery, torture or murder) when you were 14 years old. You can only qualify to have your juvenile criminal record sealed if the juvenile court jurisdiction ended about five years ago or you’re currently a legal adult (18 years of age).
You may seal the juvenile criminal record if you don’t have any pending civil litigation regarding an incident you committed in your younger years. The court may also allow you to file this petition if you don’t have a conviction for offenses that involve moral turpitude (which are offenses that involve immoral behavior or dishonesty). Note that your juvenile record won’t be automatically destroyed or sealed once you’re 18 years old unless you get a court order to do so under WIC 781.
The Similarities Between Sealing Arrest Records and Sealing Juvenile Criminal Records
In both situations (sealing arrest records and sealing juvenile criminal records), a judge must set an appropriate hearing date. During the hearing, expect a California judge to review your petition and any piece of evidence presented by your attorney, the D.A or a party with relevant information about your case. After reviewing the evidence, the judge should decide whether to deny or grant your petition. Agencies with access or possession to your arrest records must be instructed by a court order to seal or ultimately destroy them if your petition is granted.
Once a California court grants your petition to have your juvenile records sealed under WIC 781, the documents may cease to exist to the public. The goal of having the juvenile records sealed is to eliminate stigmatization or discrimination imposed by entities such as employers, education facilitators or licensing agencies. Just like sealing arrest records under Penal Code 851.87, you get to respond with a "no" to questions such as:
- Do you have a criminal record?
- Have you ever been arrested?
- Do you have a sealed record?
A juvenile record can include every court record or report related to any offense you took part in while you were a minor (below the age of 18). The record may include arrest reports, exhibits, judge's verdict, and findings and probation reports. Under the law, you don't have to disclose information about juvenile convictions when a prospective school, lending agency, state licensing agency or employer wants to know your criminal record. To prevent these parties from using the information against your juvenile convictions against you, consider taking the necessary legal steps (under WIC 781) to seal your juvenile record.
The situations that may lead to your sealed juvenile record being reopened include:
- A California prosecutor accessing your sealed juvenile record to locate and disclose exculpatory evidence
- The DMV (California’s Department of Motor vehicles) releasing this kind of information to car insurance adjusters for them to assess your insurance risk and eligibility
- You're part of a defamation civil lawsuit (Your juvenile record can be reopened and used as evidence against you in these proceedings. After resolving the lawsuit, the records are supposed to be lawfully sealed once again)
Seek Help Sealing an Arrest Record From an Experienced Legal Counsel Near Me
Getting arrested for an unjustified crime shouldn't prevent you from exploring opportunities such as education, licenses or employment. Consequently, facilitators of these opportunities are obligated not to refer to your arrest records when deciding whether to allow you to explore them. The best way you can prevent them from accessing the information is by sealing the arrest records. You need a lawyer to offer you legal perspectives on how to proceed with this process.
While representing the best interests of our law firm (Vista DUI Attorney), our lawyers can help you or a loved one have an arrest record legally sealed as per Penal Code 851.87. Our extensive criminal defense experience allows us to attend to PC 851.87 requests from clients living in Vista and North County, California. Besides helping you seal arrest records, our legal assistance comes handy when you're charged with DUI crimes or DMV violations. Speak to one of our Vista DUI Attorney via phone on 760-691-1540 for a free consultation.