Record Sealing Laws
Not only can criminal convictions on your police record make life more difficult for you in San Diego and throughout California, but even just having one or more arrests on your record can often have many of the same negative impacts.
Applying for a new job, seeking enrollment in a college or grad school to further your education, or even just applying for an apartment lease become tense and difficult tasks when a past arrest is waiting to be discovered by employers, educators, and landlords on a background check.
At Record Expungement Attorney, we not only are experts at efficiently handling California expungements, but we also are fully knowledgeable and experienced when it comes to the adult and juvenile arrest record sealing process.
Contact us at 619-432-7544 anytime 24/7 for a free consultation on California record sealing law and how it applies to your case in particular!
Adult Record Sealing in California
Record sealing is just that - a record is "sealed" so that it can no longer be viewed (legally) by most people for most purposes. Sealing is not the same as erasure or adjustment of a record, nor is it the same destruction of a record. However, after three years' of being sealed by court order, most records will finally be "destroyed." But even then, realize that the record exists somewhere and can be accessed in a select few instances, such as if you were again arrested and charged with a crime.
In California, record sealing is divided into two broad categories: adult record sealing and juvenile record sealing. Adult arrest record sealing is dealt with under Penal Code (PC) Section 851.87.
Recently, in 2017, changes were made to California's record sealing laws, making it easier to qualify for record sealing. Now, you can often get your records sealed as a "matter of right" instead of only arguing for sealing before a judge on the basis of "interest of justice."
The reason for this change is that many people were being hindered their whole life based on a mere arrest incident that didn't even lead to a conviction - and in some cases, where they were acquitted or the case was dismissed for lack of sufficient evidence. It was as if despite winning your case, you still "lost" in a sense.
Benefits of Record Sealing
The benefit of getting your arrest record(s) sealed is that you no longer have to answer "yes" when asked on a job application or in an interview if you've ever been arrested for that offense. Most of the hindrances caused by having an arrest on your criminal record evaporate the moment those records are sealed.
However, there are some limitations to keep in mind as well. First, it will be three years before the arrest and court records are destroyed. Second, law enforcement agencies will still have limited access to the records. Third, you still have to reveal the arrest if applying for a California professional license, for a police job, for a state lotto job, or for any position as a public official.
It's also possible that some background checks could reveal the fact that the record has been sealed, which it's possible could make a potential employer suspicious. But most background checks run by employers would not likely turn that up, plus, many employers would not hold a sealed arrest against you - nor are they legally allowed to do so.
Finally, note that record sealing does not cancel the duty to register as a sex offender in California, restore gun rights or a California driver's license, nor does it prevent a past arrest from being considered in a future criminal case against you.
Eligibility for Record Sealing
Under PC 851.87, to qualify for adult record sealing, any of the following situations must be true of you, relative to the arrest(s) you want sealed:
- You were arrested but never officially charged. In this case, however, you either have to wait for the statute of limitations on that crime to run out (often 2 years) or seek a certificate of detainment to prove you were only "detained" but not "arrested." NOTE: there are some severe offenses, like murder, for which there is not statute of limitations. You cannot seal such arrests unless you were acquitted or the charges were dismissed.
- You were arrested/charged, but the charges against you were dismissed and in such a way that they cannot legally be re-filed.
- You went to trial and won an acquittal. Or, you were convicted by a lower court but then had that decision overturned by a California Court of Appeals.
- You completed a drug diversion program, at the conclusion of which your charge was dismissed. At that point, you can also seek to seal the arrest record.
Under the above circumstances, you can file for arrest record sealing as a "matter of right." That means the burden of proof is on the prosecution (should they contest your petition) to show why your record should not be sealed.
But if the arrest was for domestic violence, child abuse, or elder abuse, you can only petition for record sealing "in the interests of justice." That means the burden of proof is on you and your lawyer instead. NOTE: if a "pattern of abuse" exists for domestic violence, child abuse, or elder abuse, you cannot get the records sealed at all. A "pattern" is defined as 5 or more arrests OR two or more convictions within a three year time frame.
The Record Sealing Process
It used to be that you had to file for adult arrest record sealing within 2 years of your arrest or when the charge was filed against you. That can still be true if you must petition on the interest of justice. But today, there's really no time limit if you're petitioning for record sealing as a matter of right. Still, it's far better to file as soon as you can than to wait. First of all, the law could potentially change. Second, in the meantime while you wait, you suffer the impacts of having your arrest record public.
At Record Expungement Attorney, we begin by assessing your case to determine if you meet the eligibility requirements for record sealing. If so, we can immediately prepare the paperwork and file with the appropriate California court and/or law enforcement agency for each arrest you want sealed.
We have to have to serve your petition on the arresting agency and the former prosecuting attorney. They then get a chance to respond - contest or not contest the petition. There are legal deadlines that have to met, and all forms must be complete and accurate to avoid delays or a denial of the petition.
If the prosecution contests the petition, a hearing will be scheduled to resolve the matter. Usually, you don't have to appear personally for the hearing, but your lawyer can simply appear and argue in your behalf. Evidence will be presented by both sides, but the judge has ultimate say on whether or not to grant the record sealing request. An attorney experienced in this practice area, however, greatly increases your chances of victory.
If the petition is approved, it can take up to 30 days before the records are actually sealed. The entire process takes 3 to 4 months.
Juvenile Record Sealing in California
A completely different process and a different set or "rules" apply when seeking to seal juvenile arrest records. In fact, these charges would be handled by a separate, juvenile, court system in California and record sealing is provided for not in the state penal code but in the Welfare & Institutions (WIC) Code.
WIC Section 781 provides for the ability to have one's juvenile record sealed. What this means is analogous in effect to sealing an adult record - you can legally thereafter answer "no" if asked by prospective employers and others if you were ever arrested or have a criminal record in regard to anything in your juvenile record that's now sealed.
Now, if you are tried as a juvenile in California, in the juvenile court, you are not technically "convicted" even if found guilty of the offense. So, what would have been "convictions" can often be sealed along with mere arrests when you seal a juvenile criminal record. This is very different from adult records where record sealing deals with arrests only and expungement deals with convictions.
NOTE: if you are subject to a civil suit or if an insurer is inquiring about your driving record and the DMV permits, your otherwise sealed juvenile record can be reopened. Plus, juvenile record sealing does not reinstate a suspended driver's license and does not necessarily restore lost gun rights or cancel the duty to register as a sex offender.
Eligibility for Juvenile Record Sealing
Under WIC 781, you can qualify for juvenile record sealing if:
- You are now an adult and/or you have been out from under the jurisdiction of the California juvenile court for 5 or more years.
- You've not been convicted of a crime of moral turpitude, which refers to crimes of an extremely dishonest or immoral nature, such as fraud, sex crimes, or certain drug crimes.
- You are not on probation for a crime committed as an adult nor are you currently being charged with a crime as an adult.
- There is not current civil lawsuit filed against you.
- The court is disposed to believe that you show good signs of having been "rehabilitated."
- You were never found guilty of an offense listed under WIC 707b, such as murder, arson, robbery, carjacking, or various other violent felonies.
While there are exception, as we have seen, many people will qualify to have their California juvenile records sealed. This will enable them to fare better when applying for jobs, for college, for an apartment lease, or for a California professional license. Plus, the personal satisfaction of finally "putting the past behind you" is often in itself a prime motivation for seeking to seal your juvenile records.
Juvenile Record Sealing Process
If it's determined you are eligible to petition to seal your juvenile records under California law, the next step is to file the petition in the juvenile court in the county of your most recent arrest or "conviction." It can take 8 to 10 months to complete the process, so it's important to file as soon as you can. An experienced lawyer can expedite the filing and ensure it is done in strict accord with California law.
After filing, a hearing will then be scheduled by the presiding judge at which to consider your petition. It's possible the prosecution or DA might contest the petition, which could make the hearing more "eventful" and possibly cause delays. But, ultimately, no one can stop you from getting the records sealed if the court allows it.
You generally do not have to appear at your hearing personally. Your lawyer can appear in your stead. But, if you wish to attend, it's certainly permitted.
The judge will review all of the facts and evidence and hear arguments from both sides. He/she will give your petition a thumbs up or thumbs down. But if it's not approved right then, it's possible the judge will explain what adjustments you need to make in order to get it approved after refiling.
If your record sealing petition is accepted, then the judge will order all agencies with your juvenile records in their possession to seal them. The records will be destroyed in 5 years if they contain mere matters of "truancy and/or habitual disobedience" as a ward of the state and at age 38 if you became a ward of the state for criminal activities.
Once the records are sealed, they will cease to exist for most purposes. And once they are "destroyed," it becomes even more difficult for anyone to access them again.
Contact Us Today for Help!
At Record Expungement Attorney, we have both depth and breadth of knowledge on all the details of both kinds of California record sealing (adult and juvenile). We also have intimate familiarity with the legal processes involved and in presenting your case in the most favorable light possible at your record sealing hearing, should a hearing be necessary.
If you are interested in getting your past arrest records taken off the public record (sealed), do not hesitate to reach out to our record clearing attorney for help. You can contact us anytime 24/7/365 by calling 619-432-7544. Or, you can meet us in person at our office, located at 501 West Broadway, Suite #800, in San Diego, CA.