California, on the progressive side of many issues, has made it possible to let you continue leading the life you want to lead without the past unfairly haunting you. This Los Angeles Criminal Attorney article will show you how to seal your personal criminal record in two steps that we will explain in the following sections.
What do Record Sealing and Expungement Mean?
First things first, let’s explain how record sealing differs from expungement under the law. Sealing a record pertains to your arrest record itself while expungement regards your criminal conviction or plea. Expungement is the removal of a criminal conviction, a nolo contendere, or guilty plea after compliance with a few factors have been addressed and several years have passed. Contrarily, record sealing occurs when the arrest records are removed and destroyed. This article will discuss the eligibility and process of record sealing.
Was I Arrested or Detained?
It is crucial to know the difference between an arrest and detention because you could be required to disclose an arrest, while detention never needs to be divulged. Detention is also known as a “PC849 release." For example, if you were detained instead of arrested, you won't need to share the incident with employers or landlords.
Further, if arrested, you may apply to have the arrest deemed as a detention. The acquisition of this detention certificate obligates law enforcement agencies (LEAs) to erase any record of your arrest.
The following situations make you eligible to apply for the certificate:
- If an officer arrests you without charging you with a crime
- If an officer arrests you without presenting a warrant for your arrest resulting in your release due to lack of evidence
- If an officer arrests you without presenting a warrant, then sends you to the emergency room or hospital, with no charges filed against you (such as a 5150 mental health hold)
- Lastly, if an officer arrests you because you were intoxicated with a controlled substance, but fails to present you with a warrant and does not file charges against you
What is California’s New Record Sealing Law?
In October 2017, then Governor, Jerry Brown gave Californians the right to have their arrest records sealed in most cases (misdemeanor and felony arrests) through his signature of SB 393. On May 29th of 2019, in a revolutionary update to the law, the California State Assembly passed AB 1076, which, if approved by the California State Senate will automatically clear arrest and criminal conviction records for those who were already eligible under existing legislation.
Introduced by State Rep. Phil Ting, the bill will not only make the record sealing process easier for the applicant, but also for you, the taxpayer: According to Assembly Member Ting, the current model costs the California justice system $3,757 to clear each record, while the new automated system would cost just four cents for each record sealed. An estimated two million Californians are eligible for records of their old arrests and certain non-violent and non-sexual crimes erased. The bill would even benefit those individuals unaware of their eligibility, as the California Department of Justice (CDOJ) would be required to search its databases actively to seal their records automatically. Please stay informed for the pending approval of this tremendous law that could make your life and career much easier!
How Does Sealing My Record Benefit my Family And Me?
First and foremost, once the history of your arrest is sealed, no one has access to it (except for in specific situations listed below). Even if no one ever filed charges against you, the record of the arrest is still publicly available until it is sealed. The existence of a public record of arrest could affect applications such as those for housing (apartments and condominiums, insurance, and professional licenses. Additional benefits may include more opportunities for employment, improved student loans, greater housing assistance, and personal satisfaction of moving on with your life. Seal your record to avoid road bumps in these application processes as well as background checks by your (potential) employer and dating partner.
Am I Eligible For My Arrest Record to be Sealed?
First, in order for your record to be sealed in California, your arrest must have occurred within the state. You are eligible for your arrest history to be cleared, according to Penal Code 851.8, if criminal charges against you were not filed. Even if charges were brought against you, but the court dismissed your criminal offense without convicting you, you may also be eligible for your records to be sealed. A jury acquittal may also make you eligible for this process. To remain eligible, you must not be
You are not eligible for record sealing if you have been criminally convicted even if you have served your sentence and completed the required probation. Other prohibitions from record sealing include those individuals who were arrested for crimes that do not carry a statute of limitations (SOL), such as murder, or for those who have evaded charges and prosecution. An ongoing criminal investigation would also disqualify you from sealing your record at the time.
Is The Case or Investigation Still Open?
The prosecutor cannot keep the case or investigation open indefinitely due to the SOL. Each type of crime brings a different length of SOL. For a common DUI misdemeanor, for example, the prosecutor must bring charges within one (1) year of the arrest. The SOL in felony cases is typically based on the maximum sentence for that specific charge. For a felony of a max punishment of fewer than eight years, a prosecutor needs to file the case within three years. For a felony that carries a maximum sentence of eight years or more, the prosecutor needs to generally file a charge within six years of the arrest date.
Your petition for record sealing can be opposed by the district attorney and rejected by the judge if a demonstrated pattern of domestic, child, or elder abuse is proven.
Section 851.91 specifies that the applicant's record of an arrest, conviction, or both for anyone of domestic, child, or elder abuse demonstrate a pattern that would disqualify the petitioner. This "pattern" is defined as two convictions or more, or five arrests or more for independent offenses that occurred on independent occasions when at least one conviction or arrest took place within three years of another. According to the same Section, a judge can consider the application of an individual with a pattern mentioned above of abuse by demonstrating that the sealed record would serve interests of justice by considering the following, non-exhaustive list of relevant factors:
- Due to the petitioner's relevant arrest, they endure hardship
- The submission of evidence or declarations that demonstrate the good behavior of the petitioner
- Evidence or declarations relevant to the petitioner’s arrest
- The applicant's conviction record
How Do I Get My Record Sealed?
The current process of sealing your record takes roughly 90 days; however, the pending update to the law would automate the process resulting in a much speedier result.
There are one, potentially two steps to apply to have your arrest history sealed. Step one is to file a court petition, which may be followed by step two, a hearing. A hearing is required in rare cases when a prosecutor opposes the petition.
To file your petition, submit it to the county or city in which the arrest took place. However, if you were criminally charged, submit it to the court where the charges were filed. Serve the petition to both the arresting LEA as well as to the office of the prosecuting attorney. The process of serving another party is a formal way to let them know about pending legal proceedings. Improperly serving the petition to the LEA and the prosecutor could put your application in jeopardy. In order to effectuate proper service, you must meet the requirements of the process procedures of the attorney and LEA offices.
The petition requires you to submit certain identifying information, which includes your name, DOB, the location (city, county) & the date you were arrested, as well as the name of the LEA that made the arrest. Include other relevant information such as a case number if you appeared in court for the alleged crime and any report number made by the arresting police or another LEA officer. It is better to prove more information than necessary to help you appear honest and straightforward before the court. Hidden information will be revealed at some point, and it is better to provide it yourself. This information also includes the offenses alleged for which you were arrested.
Lastly, in certain cases, such as the aforementioned issue of 'a pattern of abuse,' write a personal statement discussing the reasons why you need to have your record sealed and why it benefits interests of justice.
What Happens if My Petition Goes to a Hearing?
In most situations, the court can grant your petition without the need to appear in court. However, for cases in which your application is opposed by the prosecutor, your petition will proceed with a contested hearing. Note that the stakes of these hearings are high, as the judge is able to reject your application 'with prejudice,' resulting in a prohibition of subsequent petitions to have your record sealed. Many of said contested hearings require you to appear, whether or not you retain a personal lawyer. With the fate of your record in the hands of the judge, it is recommended to consult a defense attorney who can help you prepare for the hearing.
What Happens When The Judge Approves My Petition?
Congrats! Once the judge has issued a decision to have your record sealed, the court then contacts the arresting LEA, the LEA in charge of managing the arrest records, as well as the CDOJ, notifying them to seal your record. This information will be disseminated in no more than 30 days after the court's decision. At this point, each of the previously mentioned agencies will proceed to seal your record. Once sealed, only LEAs and you can access the records.
Updates will also be made to your criminal history summaries. A note in your local criminal history summary near the top of the entry will state "arrest sealed." In your state criminal history summary (as in your CDOJ rap sheet), it will include an "arrest relief granted" note near the top of your sealed arrest entry. Lastly, even though you still have access to the records, you will never again be required to acknowledge that you have been arrested, except for in the below circumstances. You can honestly and legally declare that you have never been arrested other than in situations included below. With your slate wiped clean, you can say firmly that "NO" you have not been arrested for most applications for loans, employment, and housing. As previously mentioned, your sealed record will not appear in private background checks.
Can Anyone Use My Sealed Record Against Me?
Unfortunately, sealed records still exist, and the LEAs, courts, and the justice system can use them. For example, these records are available for use for evidence in any future case brought against you. With access to your record, these LEAs can disclose the information regarding your arrest as they please. In the case of DUIs and other driving-related offenses, insurance companies may still have access to your records through the Department of Motor Vehicles.
A sealed record will not exempt you from the following:
- If applicable, you will still be a registered sex offender (Section 290)
- You will be prohibited from holding certain public offices
- You will not be permitted to own or possess a firearm
- You will be required to divulge the record of your arrest for the following reasons:
- If running for public office
- If applying for peace officer employment (ex: a police officer or sheriff)
- If applying for licensing such as one for legal, medical, or real estate purposes
- If applying for a State Lottery Commission contract
What Can I Do if Someone Releases My Sealed Record?
If someone unlawfully discloses your record, you can have the situation evaluated by the city attorney, district attorney, and California's Attorney General. The person who violated your rights by releasing your sealed arrest record can be fined from $500 to $2500 for each violation.
Civil lawsuits can be another fruitful course of action as you can file for compensation due to damages caused to you as a result of the improper disclosure. To file for punitive damages, you must prove that your records were released either intentionally or recklessly. A reckless release could occur if the accused violator handled the sealing of your records in an extremely careless manner.
How Do I Seal My Juvenile Record?
For cases dismissed before January 1, 2015, juvenile arrest and court records were not usually automatically sealed upon reaching the age of 18. To begin the process of sealing your juvenile record, you need to be 18 years old and completed any required probation. If you completed your Juvenile Court supervision five years ago or longer, then you are also eligible to apply.
Anyone of the subsequent exceptions would disqualify you from a successful petition:
- If, as an adult, you were convicted of a felony or misdemeanor of moral turpitude (ex: theft, fraud, drug violations, serious and violent crimes or providing a law enforcement officer with false information)
- If there is an open civil suit related to the juvenile record case
- If your case was transferred to a criminal court in that convicted you as an adult
A 2015 update to the law could permit your juvenile case to be dismissed and later sealed even if it was a violent or serious crime if a judge concludes that you have met dismissal criteria and that it is in your best interest.
As for sealing an adult record, a judge reads your submitted petition and makes the ultimate decision whether or not to have your record sealed. You will need to submit the petition with the juvenile court within the same county where the conviction took place. Agencies such as the Probation Department, CDOJ, District Attorney, LEAs, and the courts will have the opportunity to oppose your petition. An officer with the probation officer may need to interview, further investigate, and submit the court with a report based on their findings.
If a court hearing is required, the judge will examine any opposition submitted to your application. If the judge approves your petition, then the Probation Department, CDOJ, District Attorney, LEAs will be ordered to seal your records, which include fingerprint cards and arrest photographs for the next five years. After this five year period is expired, all of these records will be destroyed by the aforementioned agencies. In a situation in which the judge denies your petition, you can ask why the petition was rejected and if you can re-file your petition at a later date.
The court may waive the record sealing fee based on your financial circumstances.
How Can an Experienced Lawyer Help Me Through This Process?
While having a lawyer is not necessary to seal your record (other than in certain contested court hearings), it is advisable to retain one. An attorney can review your whole record and help you navigate which relief process for which to apply. A lawyer will help you file your petition, any necessary declarations or motions, and properly serve the LEA and prosecution offices. If the prosecution objects to your petition, then an attorney can prepare and represent you for a court hearing and help you succeed in your right to seal your record!
Find a Los Angeles Criminal Defense Lawyer Near Me
The Los Angeles Criminal Attorney is here to help you seal your record and can be reached at 424-333-0943. Please call us today!