Record sealing is a legal procedure to prevent the public from viewing your criminal records. The public cannot access your sealed criminal records, but a person with a court order or certain government agencies can access the sealed records. Record sealing typically applies to dismissed criminal records or if you were not found guilty after a trial. Record sealing can also apply to crimes that qualify for expungement, like offenses committed by minors or specific misdemeanors. If you have an arrest record, you should hire a skilled criminal defense attorney to guide you through the record-sealing process.

Sealing and Destroying Arrest Records Under California Law

If you are arrested but not charged with any crime, Penal Code 851.87 allows you to petition the court to seal and destroy your arrest records. Penal Code 851.87 is known as the ‘’arrest record sealing law’’. The other reasons why you could petition the court to have your arrest record sealed and destroyed include:

  • If law enforcement has not arrested you for any other crimes since the arrest in question.
  • If one year has elapsed since the day of your arrest.

You can petition the court to seal and destroy your records if you satisfy the above requirements. The judge will assess your petition and determine whether to grant your application. The judge can issue an order to seal your arrest records if he/she is satisfied that you qualify to have your arrest record sealed. If this happens, the public will no longer have access to your arrest information.

Sealing An Arrest "As A Matter Of Right"

According to the old statute (Penal Code 851.8 PC), you had a burden to prove that you were innocent if the police arrested you. The burden of proof lies with the prosecutor under Penal Code 851.87 or Senate Bill 393. The prosecutor seeks to show that you are not entitled to an arrest record sealing. The judge can deny your record-sealing request if you have a ‘’pattern of domestic violence.”

Patterns of Domestic Violence

You are not eligible to have your arrest record sealed as a matter of right if your criminal record indicates a ‘’pattern’’ of:

  • Elder abuse.
  • Child abuse, or
  • Domestic violence.

A ‘’pattern’’ under PC 851.91 and SB 393 means five or more arrests or two or more convictions of domestic violence or related offenses within three years. Defendants in this category can still apply to seal their records because doing so would serve the interests of justice.

The judge will consider any relevant factors in determining whether the interests of justice would be served by sealing arrest records. Some of the factors include:

  • Your record of charges.
  • Evidence or declarations about your arrest.
  • The hardship you are facing resulting from the arrest.

Defendants are entitled to automatically sealing and destroying their arrest record, or, as a matter of right. This will only happen if no exceptions apply or your arrest does not lead to a conviction.

Senate Bill 731 or Clean Slate Statute

Senate Bill 731, or Clean Slate Statute, was passed and enacted on July 1, 2023. This law clears most arrest and conviction records automatically from your criminal record. However, this statute only applies after you have met certain conditions or waited for some time.

SB 731, or Clean Slate Statute, relieves you from filing a motion to expunge or seal your record. It also permits automatic relief from felony charges for which you could have been sentenced. This could significantly enhance your housing and job prospects.

However, the automatic record relief process could be delayed if you pick up new criminal cases in the interim. On the other hand, automatic relief cannot restore your gun rights.

Additionally, you can secure relief by filing a petition to seal or expunge your criminal record, even if you do not qualify for automatic relief.

Qualifications for Sealing and Destroying of Arrest Records

Penal Code 851.87 permits your records to be sealed if your arrest did not lead to a conviction. Under Penal Code 851.87, an arrest does not lead to a conviction if any of the following is true:

  • The judge dropped your charges after completing the pre-sentencing or pretrial program, like drug diversion.
  • You were charged, but your charges were reversed or vacated on appeal, and the prosecutor cannot re-file the charges.
  • The prosecutor filed the charges against you, but the court found you innocent at trial.
  • The prosecutor filed charges against you, but the court dropped your case later, and the prosecutor cannot re-file the case.
  • The prosecutor failed to file charges against you, and the statute of limitations on each possible infraction, misdemeanor, or felony charge expired.

Since July 2022, California has been automatically sealing and destroying misdemeanor records for defendants who avoided crimes for one year. California also started sealing most felony records automatically as of July 2023. This is happening to defendants who have avoided crimes for four years. Defendants convicted of serious or violent felonies are excluded from the automatic record-sealing process. These defendants, however, can still petition formally for a record sealing. Sex offenders, on the other hand, are also not allowed to petition for a record sealing.

Ineligibility for Sealing and Destroying Arrest Records

You cannot qualify for sealing and destroying your arrest records if the following is true:

  • You interfered with the efforts to charge you by committing identity fraud, and you were subsequently convicted of that offense.
  • You did not face charges because you deliberately interfered with the efforts to charge you by absconding from the jurisdiction.
  • You were arrested for murder or another offense for which there is no expiration date.
  • You could still face charges for any crime upon which your arrest was based.

Benefits of Sealing and Destroying Arrest Records

There are several advantages to sealing and destroying your arrest records, depending on the specific circumstances of your case. Some of the advantages include:

Improved Reputation

Your arrest records can embarrass you and taint your reputation. Having your records sealed and destroyed can assist you in protecting your reputation. It can also prevent the public from accessing your arrest information.

Improved Educational Chances

Your arrest records could negatively influence your chances of securing financial aid or enrolling in specific programs or institutions. Having your records sealed and destroyed can remove this barrier and enable you to access educational opportunities.

Improved Housing Prospects

It can be challenging for you to secure a house if you have arrest records. If your arrest results in a conviction, house owners are less likely to rent their houses to you. It will be easier to secure a house if your arrest record is sealed and destroyed.

Improved Job Prospects

You can have difficulty securing a job if you have an arrest record, mainly if your arrest resulted in a conviction. If your record is sealed and destroyed, you can present a good background check to potential employers. You could also be better placed if you were arrested but not charged.

The Procedure of Sealing Your Arrest Records

Sealing and destroying arrest records involves making an application and giving specific details about your crime and the disposition of your case. However, the typical process of sealing and destroying arrest records includes:

Establishing If You Qualify for Record Sealing

If you face an arrest but the court does not convict you of an offense, you could qualify to have your records sealed as outlined under Penal Code 851.87 if:

  • The court has not denied your petition to have your record sealed within the past two years.
  • You have not been charged with specific crimes that do not qualify for sealing, like sex crimes or certain violent crimes.
  • You are not serving a sentence for any crime or were not sentenced to state prison.
  • You have not faced misdemeanor or felony charges or completed your sentence, including parole or probation.

Gather The Required Documents

You should gather certain documents to qualify to seal your arrest records. Some of the documents include:

  • Documents related to your case or copies of any court orders.
  • A copy of your criminal record.
  • Any relevant documents, like proof of good conduct or rehabilitation.

File a Petition With The Court

You must petition the court to seal your arrest records once you have gathered the required documents. Your petition must include details regarding your crime, your case disposition, and any essential information supporting your application to seal the arrest records.

Attending a Hearing

The court will set up a hearing to consider your request once you have filed the petition. You must show up for the proceedings and table your case in court. The hearing aims for you to table your case and explain why you believe the court should consider sealing your arrest records.

At the hearing, the judge will ask you to testify and provide evidence to support your application. Some evidence could include documents like a copy of good conduct, rehabilitation, and your criminal history. The judge and the prosecutor could also ask you some questions about your crime, the disposition of your charges, and any other relevant information.

After the hearing, the judge will evaluate your evidence and determine whether to grant the petition. The judge will issue an order sealing and destroying your arrest records once he/she is convinced that your petition is valid. Once your arrest records are sealed, the public will no longer have access to them. If the judge rejects your application, you can appeal the judgment or make another application later.

Usually, sealing and destroying arrest records can be complicated because it involves multiple steps. You should hire a skilled and competent attorney to help you navigate the process and protect your rights.

Situations Where Sealed Arrest Records Can Be Legally Used

Your arrest records do not cease to exist, even if the sealing destroys them. If you are arrested for another crime, the court could use your sealed record to impose harsher penalties. Criminal justice agencies could also access and divulge your arrest records to law enforcement, even if they were sealed.

Record sealing, however, will not relieve you from the following:

  • Any prohibition on buying or possessing a gun or risk of facing charges for violating felon gun possession statute (PC 2800).
  • A duty to register as a sex offender under Penal Code 290.
  • Ineligibility to hold public office because of your arrest.

Similarly, record sealing will not relieve you from the duty to disclose your arrest status if you are asked a question while applying for the following:

  • Professional license.
  • A written agreement with the Lottery Commission.
  • Public office.
  • Employment as a peace officer or as a police officer.

Statute of Limitations for Sealing and Destroying Arrest Record

According to the old statute (Penal Code 851.8), defendants had only two years from the date of their arrest to petition the court to have their arrest record sealed. Penal Code 851.87 has no time limit for petitioning. However, gathering the necessary documents and evidence could be tricky if you take a long time to file your petition.

Remedy If Your Sealed Arrest Record Is Released

There are several remedies available for you if your sealed record is released. However, it will depend on the circumstances surrounding your case.

The first option could be to file a complaint with the person or the agency that released your sealed record. You could ask the person or agency to apologize or seek other corrective action to deal with the release of your sealed record.

The second option involves filing a civil lawsuit against the person or agency that released your sealed record. You could seek compensation in your lawsuit for any harm resulting from releasing your sealed record.

Find a Criminal Defense Attorney Near Me

Filing a petition to seal and destroy your arrest records is usually complicated. You need to seek the services of a skilled and experienced attorney to guide you through the process. At the Foos Gavin Law Firm, we have assisted many clients in petitioning the courts to seal their arrest records. Our Sacramento attorneys understand the record-sealing process and are familiar with the court procedures. Contact us at 916-779-3500 to speak to one of our attorneys.