Are past arrest records haunting you and preventing you from getting the job you want and leading a “normal” life? Under current California law, it doesn’t have to be that way anymore for many. Many can now qualify for arrest record sealing and eventually arrest record destruction, which will have a major impact on how you appear in the eyes of potential employers, landlords, professional licensing boards, and college enrollment screening committees.
At The Law Offices of Jonathan Franklin, we possess an intricate knowledge of even the fine details of California record sealing statutes. We also have deep experience in pursuing and winning record sealing applications for clients in the Los Angeles Area.
Contact us today, or anytime 24/7/365, for a free, no-obligation legal consultation on sealing your past to open up doors for your future. Call us at 310-273-9600 to speak with a skilled attorney and get started on your case!
What Is Record Sealing Under California Law?
Since 2017, with the passage of Senate Bill 393 and established into state law by then-Governor Jerry Brown, having one’s arrest records sealed from the public record has become a matter of right in many situations. In the past, record sealing existed but was never a matter of right.
Under California Penal Code Section 851.87, it is possible to have one’s past police record of arrests sealed. In California, such records are normally in the public purview, meaning that almost anyone has the ability to run a background check and view them. Such background checks are routinely run by potential employers and made a basis of whether an applicant is hired or not. Additionally, past arrests on your record may disqualify you from professional licenses, college or grad school enrollment, an apartment lease, or even “scare off” a dating partner who accesses them.
As a mere arrest does not prove guilt, the widespread use of background checks for these purposes created an unfair situation for many who had been falsely accused. Those never convicted or even acquitted of crimes could nonetheless be “blackballed” by a lingering arrest record.
PC 851.87 means that you can get police and court records and associated “mugshots” and fingerprints restricted from public view as a matter of right if you were never convicted of the crime you were accused of and arrested for. Only state and law enforcement officers will still be able to access the records, and in many cases, they will eventually be totally destroyed.
Who Can Get A Record Sealed Under PC 851.87?
If you were not convicted of the crime for which you were arrested, you may be eligible to apply for record sealing. If no charges were ever formally filed against you and you are past the statute of limitations for the alleged crime (often two years), you are eligible for record sealing. However, note that some crimes like murder have no statute of limitations and so cannot be sealed unless you were acquitted. Also, if you moved out of state, the statute of limitations’ “clock” will only count the time you spent in-state.
If a charge was filed against you but then dismissed, or if you were acquitted, you can have your arrest record sealed. If you were convicted but had that decision overturned on appeal, you also qualify. Or, if you followed through on a diversion program that ended in your case being formally dismissed, you can get the arrest record sealed.
Note that record sealing is a different process from expungement, which relates to charges for which one has been convicted. Record sealing only applies to charges for which one was never convicted.
In the past, you could get a record sealed, but it was much more difficult and rare. The burden of proof rested on the petitioner to show he or she was “factually innocent” of the alleged crime. Sometimes, this route is still followed, but today, the burden of proof is often on those trying to deny record sealing. If the prosecution can show that a pattern of domestic violence exists, for example, then the presumption of the right to record sealing could be overcome. But most now have a right to this legal benefit.
Who is NOT eligible for record sealing in California? If you were convicted of the crime, could still be formally charged with it since the statute of limitations has not expired, or if you evaded police efforts at investigation through identity theft or fraud - then you would not qualify.
How Is A Pattern Of Domestic Violence Established?
As mentioned above, the establishment of a “pattern” of domestic violence, child abuse, or elder abuse can cancel your right to record sealing. But how exactly is “pattern” defined? The precise rule used is that either two or more convictions OR five or more arrests for any such offenses within a period of three years counts as a “pattern.”
Note that this will not disqualify you from applying for record sealing but will cancel the ability to do so “as a matter of right.” You can still petition on the basis that the “interest of justice” would be served by record sealing.
To show that the interest of justice is in your favor, your attorney can show that undue hardship would befall the petitioner due to the public status of the record, bring forth corroboration of the petitioner’s good character and conduct, or show that evidence is in your favor as to innocence in the matters you were arrested for.
When Can Sealed Records Be Accessed?
For most purposes, a sealed record cannot be opened and will be destroyed within three years of the sealing. But there are limited parts of the record that continue to exist and can be accessed in certain situations.
First of all, if you are arrested again and charged with a crime, the prosecution can request all your arrest records, sealed or not. Second, law enforcement agents may need to access them in the course of doing their normal duties. Third, a state professional licensing board may be able to see them under certain circumstances.
Also, note that only the particular arrest record or records you petition to be sealed will be sealed. A single petition does not seal the entire record automatically.
And record sealing, while it has many benefits, cannot do everything. It will not eliminate the duty to register as a sex offender, reinstate your right to own firearms or to hold public office, nor allow you to apply for a job as a public official, law enforcement officer, a state lotto worker, or for a state professional license without disclosing the record.
How Does The Record Sealing Process Work In California?
In the past, you had only 2 years from the date of your arrest OR from the date when charges were formally filed against you to petition for your arrest record to be sealed. Now, there is no such time limit, but nonetheless, it is wise to move as quickly as possible to file for record sealing. As soon as the statute of limitations on your charge expires and you are legally allowed to petition, it’s best to do so immediately.
To file for record sealing, you must file with the court where you were charged with the crime. If you never were charged, then you must file in the county/city where you were arrested. You cannot just file anywhere, and to file incorrectly would be to delay or even jeopardize the whole process.
Next, your petition must be “served” on the attorney or D.A. who prosecuted you or on the law enforcement agency that arrested you. This petition must be fully and correctly filled out to be valid, and it must specify the charges you were arrested on and whether you are petitioning for record sealing as a matter of right or in the interest of justice. Any mistake here could be fatal, so be sure an experienced attorney handles the paperwork.
At this point, the prosecution may choose to challenge your petition, and likely will. Expungements are less often challenged than record sealing, so don’t be alarmed or surprised when a challenge arises and a hearing becomes necessary. You may or may not have to appear personally in court - but you definitely want your lawyer to be there.
At the hearing, the presiding judge will weigh the evidence as to whether you qualify for record sealing as a matter of right under PC 851.87 OR as to whether the interests of justice would truly be served by allowing the requested sealing to take place. Note that it is possible for a failed hearing to result in an inability to refile later on, though that might be permitted in some instances. Thus, you need to choose your attorney very carefully for this hearing.
In most cases, you can get a court order to seal your arrest record within 90 days of filing your petition. And within 30 days of the order, the state DOJ and all relevant law enforcement agencies and record-handlers will be notified. They will be under the court order and responsible to abide by it and not release your sealed arrest record except to authorized persons.
When employers run a background check on you in the future, it will show that your records have been sealed. If a truncated background check is run that only shows convictions, then nothing at all will appear to the employer. However, it is important to realize that all background checks will not simply say nothing - they may show that the record has been sealed. Employers are not legally permitted to discriminate against you because of a sealed record, and many of them have no desire to. However, obviously sealing your records minimizes rather than eliminates all possible prejudicial treatment.
What If My Records Are Illegally Released?
It is possible that an already sealed arrest record could be illegally revealed to non-authorized persons by a law enforcement agency. Were this to occur, you have legal recourse. The violating party is liable for a fine of anywhere from $500 to $2,500 per improper release of a sealed record.
A lawsuit could also be filed against the person or department committing the violation. This could include compensation plus punitive damages. Thus, it is highly unlikely that your sealed records will be improperly released given the heavy penalties for doing so. But note that The Law Offices of Jonathan Franklin can assist you in responding to such illegal dissemination of your sealed record just as surely as we can help you get the record sealed, to begin with.
What About Sealing Juvenile Arrest Records?
The sealing of juvenile records is a totally different process than that of sealing adult records. If you are no longer a minor and you have been out from under the jurisdiction of the juvenile court for 5 or more years, then you can petition to have your juvenile records sealed.
But to qualify, you must also have avoided committing any crimes of “moral turpitude” and have no current adult charges pending against you. Nor can you currently have a lawsuit pending that is related to the alleged juvenile crimes. We can assist you in sealing either type of records, but be aware that the process will not work the same for juvenile records and that juvenile records can’t be lumped in with adult ones and sealed at the same time.
Looking For A Top-tier Record Sealing Attorney Near Me?
At The Law Offices of Jonathan Franklin, we have helped numerous people in Beverly Hills and in the Los Angeles area get their arrest records sealed in as little time possible. That applies to both “matter or right” and “interest of justice” cases and to both adult and juvenile record sealing.
For answers to all of your questions relevant to California record sealing and related matters, contact us anytime 24/7. We can also give you a free, no-obligation legal consultation. Call our criminal lawyer today at 310-273-9600 and we will waste no time in getting started on your case!
