If you have ever faced a criminal arrest in California, all the information regarding your arrest will reflect on your criminal record. Also, if the prosecution charged you with an offense after the arrest, but you were never convicted, those charges would be part of your criminal record. This kind of information on your criminal record is viewable by the general public and can adversely affect your personal, professional, and social lives.

The good news is that information about your arrest or being charged does not have to remain on your criminal record forever. California law has provided relief to people who were arrested or charged with a crime but were never convicted, whereby they can seal and destroy their records.

However, sealing and destroying an arrest record is not a process you can navigate successfully. First, you need to understand the legal requirements you must satisfy to qualify. Second, you must know the deadlines to act within the stipulated time frame. And lastly, you must understand the legal technicalities surrounding the law on record sealing. All these will be easier if you work with a competent defense lawyer.

If you wish to seal and destroy your arrest record in Fresno, we at the California Criminal Lawyer Group can help. We have highly experienced record-sealing attorneys who will assist you through the process and ensure they obtain the best possible outcome.

What Does Record Sealing Mean?

In criminal law, record sealing refers to putting away criminal records so they are inaccessible to the public. The laws governing the sealing of records differ from one state to another. Some states do not recognize the option to seal criminal records at all. And in states that recognize the option, only a court can seal the records.

In most states, criminal records are merely kept away, and a court or criminal justice agency can recognize or access them in a subsequent case (like the criteria and process for sealing records, when and how a record can be unsealed is based on the laws of a given state). In others, the records are completely sealed and destroyed. Every state limits the kinds of records a person can request sealed.

California Law On Record Sealing

In California, the law allows only arrest records to be sealed and destroyed. That means you can only seal your record in the state if the authorities arrested you for an offense but were not subject to a conviction.

Essentially, when you seal your California arrest records, they will not be readily available to the public and will not reflect on background checks done within the state by banks, landlords, and employers. However, the record could still be re-opened or accessed through a court order.

Arrest records the court can seal and destroy include rap sheet entries, booking photos, fingerprints, police reports, and any other information related to the arrest in question.

The current California law on sealing records originated after the passage of Senate Bill 393, which Jerry Brown, former state governor, signed into law on October 11, 2017. Titled the CARE (Consumer Arrest Record Equity) Act, the Bill is codified under Penal Code Section 851.87. This section enables arrestees to seal arrest records as a matter of right.

Initially, before the enactment of the C.A.R.E. Act, California's old law (PC Section 851.8) allowed arrestees to seal their record only if they could demonstrate they were factually innocent. Proving factual innocence entailed the arrestee demonstrating that they did not perpetrate the crime or could not have perpetrated the offense, so they should not have been arrested in the first place. That means the burden of proof lies with the arrestee, not the district attorney.

PC Section 851.87 or SB 393 shifts the burden of proof from the arrestee to the prosecuting attorney. In this case, any eligible arrestee is automatically entitled to seal and destroy their arrest records (sealing as a matter of right). The D.A., on the other hand, has the burden of proving they (the arrestee) do not qualify for sealing, maybe because they (the D.A.) could still file charges or because the arrestee demonstrates a pattern of domestic violence, as we shall see later.

Advantages of Arrest Record Sealing

A criminal record is a public record. That means anyone can see another's criminal record. Potential employers, dating partners, apartment owners, and licensing companies may perform criminal background checks and view a person's criminal records. These people might not want to know whether the criminal arrest was justifiable or led to a conviction.

Assembly Bill (AB) 1008, also called the Ban the Box Statute or the California Fair Chance Act, prohibits any employer from using a job applicant's arrest incident that never triggered a conviction to deny them a job position. But then again, an employer may dismiss a job candidate based on their arrest record without even stating so.

However, after a record is successfully sealed and destroyed under 851.87 PC, the public can no longer view it. The records, photos, investigative reports by the police, court documentation, and fingerprints will be out of reach except for restricted utilization by a criminal justice agency or the state. Other benefits of sealing your criminal records include:

  • With a sealed record, you can truthfully state that you have never been arrested before.
  • You can be eligible for higher student loans.
  • You can substantially increase your wage capacity because you will qualify for many employment opportunities.
  • You may be entitled to more types of professional licenses and certificates.
  • You can truthfully answer “no” on a job application if asked whether you have been arrested before.
  • You may qualify for better housing aid.
  • You can easily rent an apartment.
  • The arrest will be removed from your permanent criminal record for good.
  • You will have the satisfaction of leaving your past behind and moving forward into a more positive future.

In summary, sealing your record will give you a fresh start.

The Sealing Process

The process to seal and destroy your arrest record involves the following steps:

Petition Filing

You must file your petition with the superior court in which the D.A. filed charges resulting from the arrest. If the D.A. did not press charges, file the request in the county or city where the arrest happened. Then, you must legally serve your petition to the prosecuting attorney of the city of the arrest and the police agency that conducted the arrest.

Section 851.91 of the Penal Code dictates that you must provide the following details with your petition for record sealing:

  • The date that the arrest you seek to seal took place.
  • Your name and birth date.
  • The county or city of the arrest.
  • The full name of the police agency that conducted the arrest.
  • Other details of the arrest, for example, a court number, case number, et cetera.
  • The supposed violation for which you were arrested or the D.A. filed charges.
  • A declaration saying you are entitled to seal your record per PC 851.87 or in the interests of justice, whichever is applicable.
  • If you are petitioning to seal based on the interest of justice, an account and supporting statements of how the judge would have served the interest by agreeing to your request.

The Court Hearing

Should the prosecuting side challenge your petition, the court will schedule a hearing. Your county of residence will determine if you must attend court in person for the hearing or if your legal counsel can attend for you.

At the proceeding, the judge scrutinizes your records of arrest plus the evidence showing why sealing and destroying them serves the interest of justice. Since the presiding judge enjoys a significant amount of discretion in choosing whether to deny or grant your request and since the judge may deny your application with prejudice (if a judge denies your petition with prejudice, it means you cannot refile the petition to seal and destroy the arrest record in question), hiring an experienced criminal lawyer can come in handy.

A competent lawyer will carry out comprehensive research into your case and ensure the documents are correct from the start to ensure they lose no time because of a lack of or incomplete documents. They will further represent you during the proceeding and assist you in arguing your case before the judge.

Eligibility for California Record Sealing

Generally, you can seal your records as a matter of right under PC Section 851.87 if:

  • You were arrested, but the D.A. never filed criminal charges, and the time frame to press charges on the criminal conduct has expired.
  • The prosecution pressed criminal charges after your arrest. Still, they or the court later dismissed those charges, and the charges cannot be re-filed (for example, due to a PC Section 995 motion to set the information being successfully filed).
  • The judge acquitted you in a court trial by the jury.
  • The court pronounced you guilty, but it reversed or overturned the conviction after you successfully appealed, and the D.A. will not refile the charges.
  • You finished a pretrial diversion program, like PC 1000 pretrial diversion, and the judge dropped the charge against you.

Effective July 2022, California started automatically sealing and destroying misdemeanor arrest records of individuals who have not had trouble with the law for 12 months.

Ineligibility for Sealing Under 851.87 PC

You cannot seal your arrest record per 851.87 PC when any of these factors are true:

  • You eluded the D.A.s efforts to try the criminal arrest by committing identity fraud and were later accused of a violation of the identity fraud conduct.
  • The D.A. did not charge you because you purposely evaded their efforts to try the criminal arrest, say, by escaping from the jurisdiction responsible.
  • The arrest in question was for homicide or another violation, which does not have a timeframe to bring charges (unless the court found you not guilty of the violation).
  • The prosecution may still charge you with any of the violations the arrest was based upon.
  • You demonstrate a pattern of child, domestic, or elder abuse.

PC 851 describes a pattern of domestic abuse, elder abuse, or child abuse as at least five arrests or at least two convictions in three years for at least one of the other arrests or convictions.

However, if you exhibit a sequence of domestic abuse, elder abuse, or child abuse, you could still request to seal your record, and the judge may grant your petition if doing so will serve the interest of justice.

To decide whether sealing your record would serve the interest of justice, the court will consider all the relevant aspects, including, without limitation:

  • Any hardship you faced due to the arrest for which you are petitioning to be sealed.
  • Evidence concerning your excellent character.
  • Evidence of the arrest.
  • Your conviction record.

Except for individuals to whom the above exceptions apply, nearly everyone else has the legal right to seal their records per 851.87 PC, provided that arrest never resulted in a criminal conviction.

The Clean Slate Law (Senate Bill 731)

On July 1, 2023, Senate Bill 731, titled the Clean Slate Law, took effect. Per this law, the state automatically seals most conviction and arrest records from a person's criminal history once they have met certain waiting periods or conditions, as follows:

  • If the person faced a misdemeanor arrest and the D.A. did not press charges, their record would be eligible for automatic sealing one year from the date the arrest took place.
  • If they were charged with a misdemeanor and the charges were later dismissed, their record would be automatically sealed immediately after dismissal.
  • If they faced a misdemeanor conviction and were granted probation, their record would be automatically sealed after their probation sentence ends.
  • If they faced a misdemeanor conviction and the judge did not grant them probation, automatic sealing would happen a year after their case was closed.
  • If they were arrested for a felony offense, but the D.A. never filed charges, automatic sealing would occur three years from their arrest date.
  • If they faced felony charges that were later dismissed, their record would be sealed immediately after the charge dismissal.
  • If they were subject to a felony conviction and the judge granted them probation, the automatic sealing would occur immediately after their sentence ends.
  • If they were subject to a felony conviction and the judge did not grant them probation, the automatic record sealing would occur four years after the closing of their case.

Note that this automatic sealing process does not apply to people found guilty of violent or serious felonies. So, if you were arrested or convicted of a crime under any of these categories, you would still have to file a formal petition seeking to seal your record. Sex offenders are generally not qualified to seal their records.

SB 731 takes the burden of petitioning to seal your record off of you. Additionally, for the first time, it makes possible automatic relief of felony convictions where a person might have been imprisoned, thereby significantly increasing housing and employment prospects for many people.

Automatic sealing may be delayed if you are rearrested within the waiting period. Additionally, if your record does not qualify for automatic sealing, you can still file a request for sealing. Note that automatic record sealing will not restore gun rights.

When Sealed Records Can be Used

Although your sealed records will be destroyed for most purposes, they only partially stop existing. The records may be used if you are later charged with another crime.

Also, during the performance of their work, criminal justice bodies may access and show the record to other police agencies just as though it was never sealed. Sealing an arrest record will also not free you from:

  • A legal ban against possessing, owning, or purchasing a gun and criminal liability for violating the felon win possession of a gun statute.
  • The existing responsibility to comply with the sex offender registration requirement per PC 290.
  • The obligation to mention the record as the law requires when replying to direct questions on your application for a job as a police or peace officer, public office or entity, or licensing by relevant agencies.
  • A legal prohibition against holding public office that might result from the arrest.

Finally, note that sealing a record applies just to the particular arrest you mentioned during petition filing. It will not erase everything in your criminal record. You must file a separate petition for every arrest on your criminal record that never led to a conviction.

How Long Before The Sealing Is Complete?

If your record qualifies for automatic sealing per the Clean Slate Law, it should be sealed within one month. For other cases, it usually takes approximately three months after a petition is granted for a court to issue an order for sealing a record.

Within a month of the court issuing the sealing directive, it will alert the California Department of Justice, the police service that oversees master criminal records, and the police service that participated in or made the arrest.

Your court records and the master criminal history are then updated to reflect that the arrest is sealed. The authorities in charge will then stamp the file to show that the arrest records cannot be used outside of the courts or criminal justice division.

The county or city police agency responsible will ensure this information goes in all digital and manual master copies of the law enforcement investigative report associated with the sealed arrest.

The sealed court record, law enforcement investigative material, and arrest records will not be shown to any organization or individual except you or criminal justice agencies (which might use the record to a similar extent as though it were not sealed).

The remedy to an Unauthorized Release of a Sealed Record

Improperly disseminating a sealed record is considered a civil violation punishable by a fine of not less than $500 and not more than $2,500. This fine may be imposed by the prosecutor, Attorney General, or city attorney.

You could also file a suit seeking special and general damages or punitive compensation if the record release was intended or reckless.

Deadline for Petitioning for Record Sealing

Under Section 851.8 of the Penal Code, a person had just 24 months from the date of their arrest or charging (whichever came later) to request for arrest record sealing. Section 851.87 of the Penal Code does not mention a time limit to file the sealing petition. However, this new statute has yet to be tried out in court.

Hence, you want to file your petition for arrest record sealing as soon as you have established that the D.A. can no longer refile or bring charges based on the arrest. Your lawyer can assist you in determining when you qualify to seek relief.

Juvenile Record Sealing vs. Arrest Record Sealing

Sealing adult arrest records under Section 851.87 of the Penal Code and sealing juvenile records are two entirely distinct procedures. You qualify for juvenile record sealing if:

  • As a grown-up, you have never been subject to a conviction for a crime that involves moral turpitude (a crime that involves immoral conduct or dishonesty).
  • No civil case based on your juvenile incident is pending.
  • The juvenile delinquency court's jurisdiction ended more than five years ago, or you are now a grownup.

Find an Experienced Record Sealing Lawyer Near Me

A past mistake need not haunt you for the rest of your life. At California Criminal Lawyer Group, we can assist you in obtaining the relief you deserve by having your record sealed. We boast attorneys specializing only in post-conviction matters who are familiar with the entire record-sealing process and ready to assist you in obtaining the most favorable outcome. If you have previously been arrested in Fresno for a misdemeanor or felony and need help sealing your criminal record, contact us at 559-712-8377 for a free consultation. We will gladly help you eliminate arrest records that might destroy your life, making you forget about your past mistakes and start afresh.