Record Sealing

Record sealing and destruction refers to removing arrest records whereas expungement deals with removing a criminal conviction. You may not realize it,but yes, any time you were formally arrested and “booked,” a record was made,and it is discoverable in a background check which is how applications for apartments, jobs, and professional licenses are negatively impacted. Conversely, expungement deals with removing a criminal conviction or guilty plea (or nolo contendere plea) from your record after a certain number of years and other factors have passed. Expunging your record will be addressed in a different article.

On October 11, 2017, the Governor signed into law SB 393 which makes it a matter of right to seal your arrest record in most situations. The law codified Cal. Pen. Code Sec. 851.87 which grants you an affirmative right to seal your arrest record if any of the following are true:

• Criminal charges were never filed;
• Charges were filed but were dismissed;
• You were found not guilty by the jury;
• Your conviction was overturned or vacated; or
• You complete a pretrial diversion program, such as Prop 36, or pre-sentencing program, such as a Section 1000 deferred entry of judgment.

However, if you have a history of domestic violence, elder abuse, or child abuse, you do not have an affirmative right to seal your criminal record absent a judge finding that sealing your record serves the interests of justice (which is a difficult burden to prove).

SB 393 was passed because, before this rule, you were forced to establish that you were factually innocent. Yes, the burden was on you to prove that you are innocent and should not be punished. Yes, you had the burden of proof even if you were never charged or were found “not guilty” because a not guilty verdict doesn’t mean you didn’t do it – it only means that the prosecutor didn’t have enough evidence to prove its case.

Therefore, you could have a perverse situation in which you are innocent and found not guilty but still be forced to bear the stigma of having a criminal record because you couldn’t prove you were factually innocent. Under SP 393, the burden is on the prosecutor. You merely need to show that you weren’t convicted, which you can do with paperwork,and then the prosecutor must prove that you are not entitled to have your record sealed because of extenuating circumstances (like domestic violence, etc.).

There are a few benefits, some of which were briefly touched on above, but the most significantbenefit is that no one can access your arrest history once they are sealed. Until then, arrest records are public records,and anyone is allowed to request them. Yes, your criminal records, including arrests for which no charges were filed, are publicly available and can be discovered by anyone who wants to look. Your arrest record could impact:

• Applications for an apartment or condominium;
• Applications for insurance;
• Professional license applications or renewals; and

Even someone you are dating could run a background check on you and find your arrest records (although, if they are running a background check – that is probably a bad sign).

If you keep up with California legislative developments, then an arrest record impacting employment prospects probably jumped out at you. Technically, you’re right, under AB 1008 California “banned the box” which prohibits employers from asking about your criminal history. However, just because they can’t ask, doesn’t mean that they can’t run a background check and decide to hire someone else without ever telling you why they declined your application. Proving a violation of your rights under AB 1008 can be very difficult absent painfully obvious circumstances (i.e., getting a letter saying they are hiring someone else due to your arrest record).

Anyone who was arrested and met one of the criteria in the list above is eligible to apply to seal their record. If you were convicted, served your time, and completed probation; you aren’t eligible to seal your criminal record. However, you can seekto have your conviction expunged under Cal. Pen. Code Section 1203.4.

Additionally, individuals who meet the following criterion are expressly prohibited from sealing their arrest record:

• Anyone who was arrested for a crime for which there is no statute of limitations (e., murder);
• Anyone who evades prosecution and charges because they ran away (for example, fleeing the state or country);
• Anyone who may still be charged for a crime for which the arrest was made (e., the investigation is ongoing); or
• Anyone who evades prosecution by stealing someone’s identity and who is subsequently charged with identity fraud.

How do you know when the investigation has “concluded?” What stops the prosecutor from simply keeping your case open indefinitely? In some situations, the prosecutor can keep your case open and dangle the possibility of criminal charges for months or even years. However, the prosecutor is limited by the “statute of limitations.” The statute of limitations refers to the maximum amount of time under which you can be charged with a crime. For example, if you are arrested for a misdemeanor DUI, the prosecutor has one year from the arrest to bring charges. If the prosecutor waits 13 months, she cannot bring charges,and you can begin the process to seal your arrest record. In general, if you were arrested for a felony, your statute of limitation is about three years (but it depends on the crime).

Moreover, you might have a right to apply to seal your record, but the district attorney can oppose your application and can succeed if you have a criminal record that illustrates a pattern of elder abuse, child abuse, or domestic violence. The critical question then becomes, what is a “pattern of abuse?”

Section 851.91 defines a pattern as either: (1) five or more arrests in the same three-year period; or (2) two or more convictions. For example, an individual who was arrested five times for domestic violence in a 28-month period has demonstrated a “pattern” of domestic violence,and the court will not seal his arrest record. The individual could still apply and argue that the interests of justice require that his arrest record be sealed,but this is an onerous burden to prove. The judge can consider any relevant evidence or testimony,butusually, these applications will include:

• Lack of convictions;
• Testimony about the individual’s good character;
• Testimony about the arrest showing it was improper; or
• Evidence or testimony demonstrating the hardship the individual endures due to the arrest record.

There are two steps, first, file a petition with the court, and, second, the hearing.

            Filing the Petition

The petition must be filed in either the court of the city or county where the arrest occurred or if charges were filed in that court. The petition must be served on both the prosecuting attorney’s office and the law enforcement agency that made the arrest. Service is a formal process of sending documents to another party to inform them of pending legal actions. The prosecuting attorney and law enforcement agency will have formalservice of process procedures which you will need to meet to effect good service. If you don’t serve correctly, it could jeopardize your petition.

The petition must include your name and date of birth, the date of the arrest, the city and county of where the arrest occurred, identify the law enforcement agency that effected the arrest, and other identifying information. For example, if there is a court case number, include that, if you have a police report number, include it. Basically, err on the side of including more identifying information because you don’t want to look like you are trying to hide anything from the court and, if the prosecutor opposes the petition, someone will find whatever it is you’re trying to hide. You also need to include the alleged offenses on which the arrest was based. Finally, if necessary, you need to include a statement as to why the petition is needed and serves the interests of justice (i.e., if you meet the “pattern” issue discussed above).

            The Hearing

If the prosecutor opposes your petition, your application will go to a hearing. If the prosecutor doesn’t oppose, then your petition may be summarily granted by the court. If you are going to a contested hearing, you may be required to appear, even if you have a lawyer personally. The judge has ultimate discretion in determining whether to seal your record. Moreover, the judge can deny your petition “with prejudice” which means you are prohibited from petitioning to seal your record in the future. These hearings are high-stakes, so it is often good practice to hire a defense attorney to help you.

            Limitations on Sealing Your Record

Finally, keep in mind that sealing your arrest record only applies to the specific arrest for which you are applying. You must submit separate requests for each arrest – you can seal the entire record with a single application.

It takes about 90 days after you file your petition to seal your arrest record. Once the court issues its decision to seal your record, the court will send notice to the law enforcement agency that made the arrest, the law enforcement agency that is responsible for managing the records, and the California Department of Justice, that your record is to be sealed. The court will send the notice within 30 days of making its decision. Once the noticeis sent, the various agencies will seal your records,and then only you and other criminal justice agencies can access them. Finally, once your records are sealed, you never have to disclose that you were arrested (but for the exceptions detailed below).

Can a Sealed Record Still be Used?

A sealed record doesn’t mean it is gone forever; it can still be used by the courts and justice system. Sealed arrest records can be used as evidence in other offenses. Furthermore, criminal justice agencies can access and disclose your arrest records in the usual course of business as if the record were never sealed. Finally, sealing your arrest record does not relieve you from:

• If you are required to, you must still register as a sex offender (Cal. Pen. Code Sec. 290);
• The prohibition against holding public office (but not necessarily all public offices);
• The prohibition against owning or possessing a firearm; or
• The obligation to disclose the arrest in the following situations:
  • Employment as a peace officer (e., sheriff or police officer);
  • Applications for public office;
  • Licensing (e., real estate, medical, legal, etc.); or
  • Contracts with the State Lottery Commission.

If your arrest records are improperly disclosed, the violator can be assessed a penalty of between $500 and $2,500 per violation. The civil penalty can be assessed by the district attorney, city attorney, and California Attorney General.

You can also file a civil lawsuit for damages for the harm resulting from the disclosure. If you can prove that the release was intentional or reckless (i.e., the violator was extremely careless in sealing your records), you can even seek punitive damages.

Every time the police “cuff” you and “book” you; it’s an arrest, right? Not always true. In some situations, the police may detain you,but it does not give rise to an arrest. The difference is significant because specific job applications can require you to disclose arrests (i.e.,applications for professional licenses), even after your record is sealed but records of detention are never disclosable. Therefore, detention is better for your record than an arrest. 

Moreover, if an arrest is deemeddetention, the law requires law enforcement agencies to delete the arresting records – so it is as if the arrest never occurred. Finally, if your arrest is determined to be detention; you can still apply for public office, employment as a law enforcement officer, and other jobs which are ordinarily restricted or prohibited for individuals with arrest records.

You might have been given a certification of detention upon being released from custody,and if you did receive one, you don’t need to do anything else. But, if you didn’t receive a certificate, you can apply for one with the law enforcement agency that made the arrest and explains why it should be deemeddetention.

You can apply for a Certificate of Detention if:

• You were never charged despite being arrested;
• You were arrested, without an arrest warrant, and were subsequently released because the officer determined there was insufficient evidence to file charges;
• You were arrested, without a warrant, for being under the influence and completed a diversion treatment program and no charges were filed; or
• You were arrested, without a warrant, and was sent to a hospital or urgent care facility and no charges were filed (e., a “51/50 hold”).

If you need help finding an attorney to get your criminal record sealed or other criminal defense matters, don’t hesitate to call Jonathan Franklin, the Los Angeles Criminal Lawyer, at 310-502-1314 for assistance. The Los Angeles Criminal Lawyer has been featured on CNN, Fox News, the Wall Street Journal, ABC, CBS, the Huffington Post, and MSNBC for their excellent legal defense strategies defending their clients from a broad range of allegations including assault, battery, criminal threat, sex crimes, drug crimes, elder abuse, domestic violence, fraudulent gaming, burglary, shoplifting, and more. If you are facing criminal charges or would like assistance sealing your criminal record, do not hesitate to call us today!