Expungement vs. Petition to Seal an Arrest
Perhaps, you have heard the term expungement and you've heard of record sealing, but you're not quite sure what the difference between these two record improvement actions is. But if you have a past conviction or arrest, it's important that you understand what expungement does, what record sealing does, and whether you should pursue one, the other, or both.
Having past criminal convictions and/or arrests on your police record can be a major hindrance when seeking a job, professional license, college enrollment, or other life pursuits in California. Fair or not, a criminal record will follow you and be easily accessed by potential employers and others who run background checks.
California provides specific relief that allows you to "clean up" a past criminal record. At Record Expungement Attorney, we understand the details of the law and the court processes involved in both expungement and arrest record sealing. Contact us anytime 24/7, by calling 619-432-7544, for a free initial consultation and we will be happy to help you get started on putting the past behind you!
What Is Expungement and What Is Record Sealing?
We not uncommonly get asked the question by our clients: "What exactly is the difference between expungement and record sealing?" Well, the fact is, the two actions are very, very different legally and have little more in common than that they both have to do with improving a past criminal record.
First, we'll look at the basic identity of each legal process, and then, we'll examine some of their similarities and differences in more detail.
The term expungement refers to a criminal conviction, be it felony or misdemeanor, being "expunged" (removed) from your record. BUT, in reality, the way in which it is "removed" is not by erasure but by replacement. That is, the conviction on your record will be replaced with a dismissal. That's why expungement is talked about as synonymous with dismissal of a criminal charge in the California Penal Code.
The result of an expungement is that employer background checks for conviction only will not bring anything up; and more comprehensive background checks will bring up "dismissed" instead of "convicted." Additionally, you will almost always be able to legally say "no" if asked, on a job application, if you were ever convicted of an offense which has been expunged.
Record sealing, or more fully "arrest record sealing," removes an arrest record from the public domain and view. Once sealed, an arrest record cannot be legally viewed in most situations, and you can take legal action against any law enforcement agency that illegally disseminates information on a sealed arrest.
You can only seal an arrest if it did not result in your being convicted for the offense. But, if you get a conviction expunged, it may be possible to later get the arrest sealed as well. Note that once an arrest record is sealed, it generally remains sealed for three years before being permanently destroyed. Thus, record sealing has a more full and permanent effect than expungement, but it only applies to arrests not to convictions.
Eligibility Requirements for Expungement VS Record Sealing
Expungement and record sealing not only are basically different actions as to what they do, but they also have very different eligibility requirements. Thus, it's possible a person could have some offenses (or alleged offenses) in his/her past for which expungement might be the best option and others to which record clearing would apply.
Record Sealing Eligibility
Under PC 851.87, record sealing has a very specific set of eligibility requirements. And since 11 October, 2017, some record sealing can be pursued as a "matter of right" while other situations would require pursuing it not as a matter of right but only "in the interest of justice."
To automatically qualify for arrest record sealing as a matter of right, any of the following must be true:
- After your arrest, no charges were ever officially filed against you. In that case, your arrest would technically be considered a "police detainment," but you could still get the arrest record sealed and/or obtain a certificate of detainment.
- Although charges were filed against you, they were later dismissed and the case was dropped, perhaps, for a lack of sufficient evidence.
- You were arrested and charged but acquitted in a jury trial.
- You were convicted by a lower court, but that decision was overruled by an appellate court.
- After completing a Prop 36 or PC 1000 drug diversion program, the charge against you was dismissed.
The common thread here is that there is good reason to think you were innocent and thus wrongly arrested, that there wasn't enough evidence to prove your guilt, or that in some other way favorable mitigating circumstances exist. There were too many people who were innocent walking around with an arrest record haunting them their whole life, so record sealing was made a matter of right in 2017 in the above-listed situations.
However, if you were convicted of domestic violence, child abuse, or elder abuse, you can't get an arrest record sealed as a matter of right. You could still get it sealed, however, if you can show the court why, in the interest of justice, they ought to seal it. If there was a "pattern" of abuse, you can't get the arrest record sealed period, but otherwise, there are many situations where it can still be done with the right legal help.
But also realize that if you were arrested and never charged, you can't immediately go out and file for record sealing. Instead, there is a statute of limitations for each offense - and that time clock has to run out first, until you could no longer be legally charged with the offense. For some offenses, like murder for example, there is not statute of limitations, which means you could never seal a murder arrest record if you were arrested but not charged.
Under PC 1203.4, both felonies and misdemeanors are eligible for expungement. And, as a matter of fact, you can even get an expungement for an infraction if you wish. However, there are a number of eligibility requirements that have to be met before an expungement is possible, and for certain offenses, expungement is never allowed.
In general, to get an expungement, the following must all be true:
- You were not tried in a federal court.
- You did not serve any actual prison time for the conviction (jail time will not cancel eligibility, only state prison time.)
- You have completed your sentence in full, including the probationary period.
- You are not facing any new criminal charges and have not new criminal convictions following the one you want expunged.
However, there are some caveats to the above-given list of requirements. First, you can often apply for early termination of probation simultaneous to applying for an expungement. If the judge agrees to allow your probation to end early, you can immediately start the expungement process (which often takes 2 to 4 months to complete.)
Note that you have to have gone through 2 or more years of your probation, typically, before it can be terminated early. Plus, you have to have a good (not necessarily perfect) probationary record.
The second major caveat is that even if you served prison time for a conviction, if you can get the charge reduced to a felony, you could still qualify for expungement.
Charge reduction can be pursued if you served prison time for a felony that would have been, or could have been, charged as a misdemeanor with county jail time only had you been charged after Realignment, which changed many of the sentencing guidelines in California. But there are also other situations where "wobbler" offenses, which can be charged as either felony or misdemeanor, led to prison time - where you can still possibly get a charge reduction and then an expungement.
Finally, there are certain crimes, mostly sex crimes against a minor, that are never eligible for California expungement. These crimes are considered too heinous to allow the conviction record to be converted to a dismissal. A certificate of factual innocence or a certificate of rehabilitation could help for such convictions, but not expungement.
Limitations of Expungement VS Record Sealing
Expungement and record sealing offer different benefits and apply to different situations, and they also have different sets of limitations. Neither "does everything." In some ways, their limitations are opposite one the other, while in other respects, their limitations are similar.
Limitations of Record Sealing
Record sealing's most obvious limitation is it only applies to arrests but not convictions. And, you do have to wait three years before a sealed arrest record is destroyed. But aside from that, are there any other limitations? Indeed, there are, including the following:
- The arrest record still exists somewhere. It cannot be used any more for most purposes, but there are exceptions, such as a prosecutor accessing the record if you're charged with a new criminal offense.
- You can't seal all the arrests on your police record with one petition. You have to file a separate petition for each arrest. This can easily be done by an experienced attorney, but it does mean greater costs and greater risk that at least one arrest on a record with many, might not qualify for sealing.
- Record sealing is often vigorously opposed by the prosecution. It's generally easier to get an expungement than seal a record, though it also depends on the nature of the alleged offense.
- Record sealing cannot restore lost gun ownership rights or cancel the duty to register as a sex offender under PC 290.
- You still have to disclose the arrest if applying for a state-of-California issued professional license, seeking public office, applying for a law enforcement job, or seeking a position with the state lottery commission.
Limitations of Expungement
We've already seen that expungement is not possible for all types of criminal convictions, but are there any limitations to expungement when it is approved?
Yes, and here are the most notable drawbacks to remember about an expungement:
- Expungement cannot restore firearm rights.
- It cannot cancel a driver's license suspension or revocation.
- Nor can expungement eliminate the requirement to register as a sex offender.
- An expunged offense will still count as a prior, thus upping the sentence (potentially) if you are convicted of any crimes in the future.
- An expunged offense also still counts as a "strike" under our state's Three Strikes Law, where serious felonies have a double sentence for a second strike and are punished by 25 years to life in prison for a third strike.
- Expunging a conviction does not necessarily avert negative immigration consequences, including possible deportation.
Arrest Record Sealing VS Expungement Process
There is no time limit for filing for record sealing if it's a matter of right, but otherwise you have to wait 2 years from the date of the arrest. You then file a petition with the arresting agency and in the court where you were charged or would have been charged.
There is a hearing where you have to prove to the presiding judge either that you qualify for record sealing as a matter of right or that it's in the interest of justice to seal your record. It typically takes 90 days to complete the process and up to 30 days after a court order to seal an arrest before it's sealed.
With expungement, you can file as soon as you complete your probation or get it shortened via early termination of probation. You file in the court where you were convicted for each offense. It usually takes one or two months after filing before you get your expungement hearing, and if you win it, it can take a few more weeks before your record says "dismissal."
Securing Record Expungement Assistance Near Me
At Record Expungement Attorney, we have been helping people in the San Diego Area and beyond in Southern California get relief from the negative impacts of a past criminal record. We know how to assess if you will qualify for an expungement, record sealing, or other record clearing actions under California law.
And we can guide you through the process, step by step from beginning to end. We have helped many others in San Diego and other communities clean up their past criminal records, and we can do the same for you!
Contact our record expungement attorney anytime, 24/7/365 by calling 619-432-7544 for a free, no obligation legal consultation. Or, if you prefer, feel free to meet us in person at our office at 501 West Broadway, Suite #800, in San Diego, CA.