Record sealing is a legal process involving sealing criminal records to the public. The records cannot be viewed or accessed by the general public, although they could still be available to certain government agencies or individuals with a court order. Record sealing is typically open for criminal records dismissed or for which the defendant was found not guilty. It could also be available for certain offenses eligible for expungement, like certain misdemeanors or crimes committed by a minor. The Los Angeles Criminal Attorney breaks down details you should know about record sealing below.

Record Sealing Under California Law

Penal Code 851.87 is a California law allowing individuals arrested but not charged with a crime to petition the court to seal his/her arrest records. This law is called the "arrest record sealing statute."

Under PC 851.87, an individual who was arrested but not charged with a crime could petition the court to have records of his/her arrest sealed if:

  • At least one year has passed since the date of the arrest

  • The state has not filed charges against the petitioner following an arrest

  • Police officers have not arrested the petitioner for any other offenses since the arrest in question

If the individual meets these requirements, he/she could file a petition with the court to seal their arrest records. The court will review the petition and decide whether to grant the request. If granted, courts will issue an order sealing the arrest records, and the information will no longer be available to the public.

It is important to note that even if an individual's arrest records are sealed under Penal Code 851.87, they could still be available to certain government agencies or individuals with a court order. Additionally, the individual could still be required to disclose the arrest if applying for specific jobs or licenses that require a background check.

What is The CARE Act?

PC 851.91, also known as the CARE Act (Clean And Rehabilitative Environment), allows people arrested or convicted of certain offenses to petition the court to have their arrest or conviction records sealed or destroyed. The purpose of the CARE Act is to give people who have made mistakes in the past the opportunity to move on with their lives and to reduce the negative impact that an arrest or conviction record can have on their future.

Under the CARE Act, you could be eligible to have your arrest or conviction records sealed or destroyed if you meet specific criteria, like completing your sentence, paying any fines or restitution, and not be currently charged with or convicted of a crime. The CARE Act applies to various offenses, including misdemeanors, felonies, and certain non-violent crimes.

Difference Between Penal Code 851.87 and Penal Code 851.91

Penal Code 851.87 and Penal Code 851.91 are two separate California laws about sealing and destroying criminal records.

PC 851.87 allows people arrested but not charged with a crime or whose charges were subsequently dismissed to petition the court to have his/her arrest records sealed. It means the arrest records would be confidential and unavailable to the public. To petition to have your arrest record sealed under Penal Code 851.87, you must file a petition with the court where the arrest occurred and provide information about the arrest and any subsequent proceedings. The court will review your petition and decide whether to grant or deny your request.

PC 851.91, also known as the CARE Act (Clean And Rehabilitative Environment), allows people arrested or convicted of certain offenses to petition the court to have their arrest or conviction records sealed or destroyed. The CARE Act gives people who have made mistakes in the past the opportunity to move on with their lives. Further, it reduces the negative impact an arrest or conviction record can have on their future. To be eligible to have your records sealed or destroyed under the CARE Act, you must meet specific criteria, like completing your sentence, paying any fines or restitution, and not be currently charged with or convicted of a crime. The CARE Act applies to various offenses, including misdemeanors, felonies, and certain non-violent crimes.

In summary, Penal Code 851.87 allows you to petition to have your arrest record sealed if you were arrested but not charged with a crime or if a judge dismisses the charges against you. On the other hand, PC 851.91 allows you to petition to have your arrest or conviction records sealed or destroyed if you have been arrested or convicted of certain offenses and meet the eligibility requirements.

Difference Between Sealing a Record and Expungement

Sealing a record and expungement are separate processes involving different procedures and eligibility requirements.

Sealing a record refers to making a criminal record unavailable to the general public. To seal a record, an individual must file a petition and provide certain information about the offense and the disposition of the case. The court will review the petition and decide whether to grant the request to seal the record.

Expungement refers to the process of legally destroying or dismissing a criminal record. To delete a criminal record, an individual must petition the court and provide certain information about the offense and the disposition of the case. The court will review the petition and decide whether to grant the request for expungement.

Benefits of Sealing a record

Sealing an arrest record has several potential benefits, depending on the case's specific circumstances. Some potential benefits of sealing an arrest record could include the following:

  1. Improved employment prospects — Having your arrest record can make it challenging to find a job, primarily if the arrest resulted in your conviction. Sealing your arrest record can help you present a cleaner background check to potential employers if you were arrested but not convicted.

  1. Improved housing prospects — Like employment, having a record of your arrest can make it tough to find housing. Landlords could be less likely to rent to someone with an arrest record, primarily if the arrest resulted in your conviction. Sealing your arrest record can make it easier to find housing.

  1. Improved educational opportunities — An arrest record could also impact an individual's ability to enroll in certain schools or programs or to receive financial aid. Sealing your arrest record can remove this barrier and make it easier to pursue educational opportunities.

  1. Improved reputation — A record of your arrest can be a source of embarrassment and damage to an individual's reputation. Sealing your arrest record can help protect your reputation and prevent the information from being made public.

The Legal Right To Seal An Arrest Record

To seal an arrest "as a matter of right" means that the individual is entitled to have his/her arrest records sealed without the need to show good cause or get permission from the court. As long as the individual meets the eligibility requirements for sealing their arrest records, they have the right to have the records sealed without arguing their case or providing any additional justification to the court.

Individuals Ineligible for Record Sealing

You are not eligible for record sealing if the following circumstances apply.

  1. The state did not charge you because you intentionally evaded efforts by law enforcement to prosecute and arrest, for example, absconding from the jurisdiction.

  2. You will still face charges for any offense based on your arrest.

  3. Police officers arrested you for murder or one more offense for which the statute of limitations does not apply unless the courts found you factually innocent or acquitted you.

  4. You evaded efforts by law enforcement to prosecute you by committing in identity fraud and have faced identity fraud charges.

Patterns of Domestic Abuse or Violence

Further, you cannot have your records sealed if you have a pattern of child abuse, domestic violence, or elder abuse. PC 851.91 and Senate Bill 393 define a pattern as five or more instances of being taken into custody in three years or two or more convictions.

However, you can still petition the courts to seal your records because it is in the interest of justice. A judge will consider several factors to determine whether your case meets the justice threshold. Some of the common considerations include the following:

  • Your record of convictions

  • The hardships occasioned by the arrest

  • Evidence or declarations regarding the arrest

  • Evidence or assertions regarding your good character

The list is not exhaustive since the judge exercises his/her discretion in determining what counts as an interest of justice. Talk to your attorney to evaluate your case and identify which considerations apply to your case.

Instances When Sealed Records Can be Lawfully Used

It bears emphasizing that though sealing your record destroys it, your records do not cease to exist. Authorities could use a sealed record if you are thereafter prosecuted for another offense. Further criminal justice agencies could access and divulge your records to law enforcement officials in the course of their regular duties if they were not sealed.

With that in mind, sealing will, therefore, not relieve you from the following:

  • Ineligibility to hold public office as a result of an arrest

  • An obligation to register as a sex offender per PC 290

  • Any prohibition on possessing or owning a gun or risk of facing legal action for violating PC 29800, California’s felon gun possession law

  • The obligation against disclosing your arrest as legally required following a question posed while applying for the following:

  1. Employ as a law enforcement officer or a peace officer

  2. Public office

  3. A written agreement with California’s Lottery Commission

  4. Licensing by a local or state agency

Note: Your application to seal your records applies to the particular arrest you are contesting. Once granted, it does not cover your complete criminal history. If you want to have each of your other arrest records sealed of arrests that did not end in conviction, you will have to submit a petition for each of the arrests.

The Process of Sealing Your Record

In California, sealing a criminal record involves filing a petition with the court and providing specific information about the offense and the disposition of the case. Here are the steps involved in sealing a criminal record:

  1. Determine if you are eligible to have your record sealed — Individuals arrested but not charged with a crime could qualify to have the records of their arrest sealed under Penal Code 851.87 if:

  1. You were convicted of a misdemeanor or a felony, and have completed your sentence, including probation or parole.

  1. You were not sentenced to state prison or are not currently serving a sentence for any offense.

  1. You have not been convicted of certain specified offenses that are not eligible for sealing, such as certain violent crimes or sex offenses.

  1. You have not had a petition to seal your record denied within the past two years.

  1. Gather the necessary documents — To seal a criminal record in California, you will need to gather certain documents, including:

  • A copy of your criminal record

  • Copies of any court orders or documents related to the case

  • Any other relevant documents, such as proof of rehabilitation or good character

  1. File a petition with the court — Once you have gathered the necessary documents, you will need to petition the court to request that your record be sealed. The petition should include information about the offense, the disposition of the case, and any relevant information that supports your request to have the record sealed.

  1. Attend a hearing — Once you have filed the petition, the court will schedule a hearing to consider your request. You must attend the hearing and present your case to the court. A record-sealing hearing is a court proceeding in which an individual with a criminal record petitions the court to seal the record. The purpose of the hearing is for the individual to present their case to the court and explain why they believe the courts should seal their record.

During the hearing, the courts will require the individual to provide testimony and present evidence to support their request to have the record sealed. This could include documents like a copy of the criminal record, copies of any court orders or documents related to the case, and any other relevant documents, like proof of rehabilitation or good character.

Courts could also require you to answer questions from the judge or the prosecutor about the offense, the disposition of the case, and any other relevant information.

After the hearing, the court will review the evidence and decide whether to grant the request to seal the record. If the request is granted, the court will issue an order sealing the criminal record, and the information will no longer be available to the public. If the courts deny your request, you could appeal the decision or file a new petition later.

Note: Sealing a criminal record can be complex and could involve multiple steps. Seek the assistance of a qualified attorney to guide you through the process and ensure your rights are protected.

Remedy if the Arrest Record is Released

If a sealed arrest record is released, you could have several remedies available, depending on the case's specific circumstances.

One option could be to file a complaint with the agency or individual that released the sealed arrest record. You could seek an apology or other corrective action from the agency or individual to address the release of the sealed record.

Another option could be to file a civil lawsuit against the agency or individual that released the sealed arrest record. In a civil suit, you could seek damages for any harm resulting from the sealed record's release.

Note: Specific remedies available to an individual whose sealed arrest record is released will depend on the laws in the state where the arrest occurred, as well as the specific circumstances of the case. If you have questions about what remedies could be available to you in this situation, speak with a qualified attorney.

Length of Time It Takes to Seal Your Record

There is no specific deadline for filing a petition to seal your arrest record. However, the longer you wait to file your petition, the harder it becomes to gather the necessary documentation and evidence to support your request.

Difference Between Sealing Arrest Records and Sealing Juvenile Records

In California, sealing arrest and juvenile records are separate processes involving different procedures and eligibility requirements.

Sealing arrest records refers to sealing the records of an arrest that did not result in your conviction. We have already discussed the process of sealing your arrest record.

On the other hand, sealing juvenile records involves sealing the records of juveniles adjudicated for an offense in juvenile court. To seal a juvenile record in California, you must file a petition with the court and provide certain information about the crime and the disposition of the case. The court will review the petition and decide whether to grant the request to seal the record.

Note: The specific procedures and eligibility requirements for sealing arrest records and sealing juvenile records can vary depending on the laws and your case's particular circumstances. If you have questions about either of these processes, it is recommended to speak with a qualified attorney.

Is sealing Your Arrest Record Under PC 851.91 Different from a Factual Innocence Motion Under PC 851.8?

Yes, sealing your arrest record under Penal Code 851.91 (the CARE Act) differs from filing a factual innocence motion under Penal Code 851.8.

Under Penal Code 851.91, you can petition the court to have your arrest or conviction records sealed or destroyed if you meet certain criteria, for example, completing your sentence, paying any fines or restitution, and not being currently charged with or convicted of a crime. The CARE Act applies to various offenses, including misdemeanors, felonies, and certain non-violent crimes. If the courts grant your petition, your arrest or conviction records will be sealed or destroyed, and the records will be confidential and unavailable to the public.

On the other hand, a factual innocence motion under Penal Code 851.8 is a legal proceeding in which you can request that the court declare you factually innocent of a crime for which you were arrested or charged. To be granted a factual innocence motion, you must show that you did not commit the crime and that you are factually innocent. If the courts grant your factual innocence motion, it means that the court has determined you are not guilty of the crime and did not participate in the commission of the crime. A grant of a factual innocence motion does not necessarily result in the sealing or destroying of your arrest or conviction records. Still, it is a step towards having your records sealed or destroyed under other sections of the law, like the CARE Act.

In summary, the CARE Act allows you to petition to have your arrest or conviction records sealed or destroyed if you meet specific eligibility requirements. In contrast, a factual innocence motion enables you to request that the court declare you factually innocent of a crime.

Is There a Deadline for Sealing My Arrest Record in California?

Yes, there is a deadline for sealing your arrest record. The deadline per Penal Code 851.87 is generally three years after the date of the arrest or the date of the completion of any probation, whichever is later. However, if you were arrested but not charged with a crime, the deadline is generally one year after the date of the arrest. It is important to note that these deadlines may vary depending on the specific circumstances of your case.

Find a Criminal Defense Attorney Near Me

Given the complexity of this process, it can be helpful to have the assistance of an experienced criminal defense attorney who can guide you through the process and advocate on your behalf. At Los Angeles Criminal Attorney, we are ready to help you petition the courts to seal your records. Contact us today at 424-333-0943 for a free case evaluation.