Your arrest records will remain on your criminal record even if the prosecutor did not file any charges. Also, even when you were charged, and the criminal charge was acquitted or dropped, the arrest records will permanently remain on your criminal record. It could negatively affect you in numerous ways. Most companies in Los Angeles conduct background checks before hiring a new employee. Additionally, a criminal record can affect your ability to find affordable housing, enroll in college, work in specific professions or industries, and advance your career. 

Fortunately, Penal Code 851.91 allows you to petition a criminal court to seal the arrest records if you were acquitted. Please read on to learn more about this law and how it can give you a fresh start.

A Brief Overview of Senate Bill 393

Before passing Senate Bill 393, a person whose arrest did not lead to a criminal conviction could not seal their arrest record. Previously, the individual had to file a factual innocence petition under Penal Code 851.8 PC and prove that they should not have been put into police custody, even if the prosecution did not bring criminal charges or their charges were dismissed.

Back then, an arrest would appear after potential landlords, employers, and others performed a background check, resulting in discrimination against an innocent person.

Senate Bill 393 changes the statutory language within specific PC 851 subsections by amending this law and including PC 851.92 and PC 851.91. Under Penal Code Section 851.87, you only need to demonstrate to the judge that your arrest did not lead to a conviction. Then the burden moves to the prosecution to show that you do not qualify for record sealing.

Arrest Record Sealing and Destroying

According to Penal Code Section 851.87, you are entitled to arrest record sealing, provided your arrest did not lead to a conviction. In this context, the arrest did not lead to a criminal conviction if one of the statements below applies:

  • The prosecutor did not file your criminal charge, and the statute of limitations (SOL) for every possible infraction, felony, or misdemeanor charge has expired.
  • The prosecutor filed the charges but later dismissed them and could not refill them (for instance, due to the PC 995 motion).
  • You were found guilty, but the judge vacated it on appeal or reversed it, and the prosecutor cannot refile your charges.
  • The prosecution filed the charges, but you were acquitted at a court trial.
  • The court dismissed your charges after you completed a pre-sentencing or pretrial program, like drug diversion.

In California, misdemeanor criminal records are automatically sealed after a year, provided the defendant has not gotten into legal trouble. And from July 2023, the Golden State will automatically seal the felony criminal records of defendants who have not been in legal trouble for at least four years.

Nevertheless, the automatic criminal record sealing excludes defendants found guilty of violent or serious felonies. The defendants would still need to petition for record sealing. Additionally, sex offenders do not qualify for record sealing.

Who Does Not Qualify for Arrest Record Sealing and Destroying?

A defendant does not qualify for criminal record sealing if one of these applies:

  • The defendant can still be prosecuted for the crime upon which their arrest was based.
  • The accused person was arrested for an offense without an SOL (unless they were found factually innocent of their charge or were acquitted).
  • The defendant was not prosecuted because they deliberately evaded law enforcers’ attempts to prosecute their arrest, like fleeing from their jurisdiction.
  • The defendant evaded attempts to prosecute their arrest by committing identity theft and was later prosecuted for the identity fraud offense.

Statute of Limitations (SOL)

The timeframe the prosecution has to bring criminal charges is known as the “statute of limitations.” The SOL differs from offense to offense. Here are the rules for the SOL:

The prosecutor should file most California misdemeanor charges within a year from when you committed the crime.

Regarding felonies, the SOL depends on your charge’s maximum penalties. Typically, the prosecution will file a felony case within three (3) years if your maximum penalty for the criminal charge does not exceed eight years. The prosecutor should bring charges within six (6) years if your maximum sentencing for the crime is at least eight years. Some California felonies do not have an SOL, and the prosecutor can file your charges anytime.

Benefits of Sealing a Criminal Record

Having a criminal record is a burden. However, criminal record sealing offers a fresh start for defendants who have put the matter behind them and moved forward with their lives. Some of the primary benefits of arrest record sealing include the following:

  • Obtaining affordable housing — Most private landlords and public housing projects refuse individuals with criminal records as a matter of policy. A landlord can claim that the criminal history threatens employees’ and other residents’ safety, health, life, and the right to enjoy peace at home. Once your record is sealed, you can lawfully check “No” to questions regarding your previous convictions and arrests on housing applications.
  • Your sealed criminal record will not be used against you in most court proceedings or commission hearings. That means your history will not be used against you in a civil lawsuit.
  • Employment benefits — California Assembly Bill 1008 (ban the box law) makes it illegal for potential employers to fail to hire job applicants based on arrests that did not result in a conviction. However, an employer can dismiss an applicant based on their criminal record without ever mentioning it. Once you seal your record, the public cannot see it, and police reports, court records, fingerprints, and arrest records can only be accessible by criminal justice authorities for limited use.
  • Getting the arrest record sealed could also assist you in getting accepted into an educational institution, pursuing a military career, or acquiring a professional license.

When Can Law Enforcers Legally Use Your Sealed Criminal Record?

While criminal record sealing destroys your arrest record, it does not erase it.

The law enforcers can still plead your sealed arrest and prove it if you are later charged with another crime.

Also, a California criminal justice authority can access and reveal your arrest records to law enforcers to the same degree as if you had not sealed them.

Please note that sealing and destroying criminal records will not relieve you from the following:

  • Sex offender registration obligation under PC 290
  • A ban against holding a public office stemming from your arrest
  • A ban against possessing, owning, or purchasing a gun or vulnerability to a criminal conviction for breaking felony with a firearm laws
  • The responsibility to reveal your arrest when answering questions on applications for:
  1. Professional licensing by a local or state agency
  2. Public office
  3. Employment as a law enforcer

Sealing the arrest applies to the arrest you are contesting. It will not erase the entire criminal history and records. Defendants should submit a different petition for every arrest and criminal record that qualify for record sealing.

Sealing an Arrest is a Matter of Right

Under Penal Code Section 851.8, the defendant had the burden of establishing that they were factually innocent. The legal phrase “factually innocent” means that you are innocent of the offense you have been accused of committing. Individuals prove their factual innocence by verifying that they did not commit the crime or could not have violated the law.

Senate Bill 393 shifts the burden of proof to the prosecution team to demonstrate that the defendant does not qualify for record sealing, for instance, because:

  • The prosecution team can still file the charges, or
  • Due to a pattern of domestic violence.

Almost all defendants qualify for arrest record sealing as a matter of right, provided their arrest did not lead to a conviction and no exemptions exist.

Defining a Pattern of Domestic Violence or Abuse

An individual does not qualify for arrest record sealing if they have a pattern of:

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

A pattern of domestic violence (DV) or abuse is:

  • At least two domestic violence, elder abuse, or child abuse convictions within three (3) years, or
  • At least five domestic violence, elder abuse, or child abuse arrests within three (3) years

Nevertheless, if the court determines that the defendant has a pattern of elder abuse, domestic violence, or child abuse, the judge could seal the arrest records if it serves the best interests of justice. Before determining whether the criminal record sealing would serve the interest of justice, the judge will consider the following factors:

  • Proof of your good character
  • Proof surrounding the arrest
  • The hardships the arrest has caused you
  • Records of your previous convictions

Consequently, you should engage a skilled criminal defense lawyer to assist you in bringing a petition. The attorney can also collect relevant evidence.

Understanding Penal Code Section 851.87 Process

First, you should seek guidance from a criminal defense lawyer who can guide you through the process.

Here is what to expect:

     1. File Your Petition

You should bring your petition either:

  • To the county or city of your arrest, if the charge was not brought, or
  • To a superior court where the criminal charge based on your arrest was filed.

Then your petition will be lawfully served on:

  • The arresting law enforcement authority, and
  • The District Attorney (D.A.) of the county or city where your arrest happened.

In your petition, remember to include the details below:

  • Your name
  • Your birthday
  • Your arrest date
  • The county and city of your arrest
  • The arresting law enforcement authority’s name
  • The underlying criminal charge
  • Identifying information about your arrest, like the court or case number
  • A statement that you qualify for arrest record sealing either in the interests of justice or as a matter of right

     2. Court Hearing Proceeding

If the D.A. contests your petition, the judge should schedule a court hearing.

Your county of residence should decide whether you should appear for your court proceedings or if your defense lawyer can attend on your behalf.

During the court hearing, the court will analyze your arrest records and evidence of why the arrest record sealing and destroying is in the interest of justice.

It is wise to have legal representation since the judge:

  • Can deny the petition with prejudice, preventing you from refilling the request, and
  • Has the discretion to determine whether to deny or grant your petition to seal the criminal record.

Your skilled criminal defense lawyer should:

  • Thoroughly research the case and ensure all relevant paperwork is properly filed to avoid wasting any time, and
  • Represent you in court.

     3. Penal Code Section 851.87 Process Duration

Typically, it takes approximately ninety days after bringing your petition for the court to seal the arrest records.

Within thirty days after the court issues an order to destroy the criminal court, the judge will advise:

  • The Department of Justice
  • The law enforcement authority tasked with maintaining the master criminal history records
  • The law enforcement authority that arrested you

Then the responsible law enforcement authority will update the court records and master criminal record to indicate that the court sealed your arrest. It will stamp the file so that nobody releases your record to the public. The agency should ensure that the information is in master copies of the police report associated with the sealed arrest.

Frequently Asked Questions

Discussed below are some of the most commonly asked questions about sealing and destroying California arrest records:

     1. Does California Penal Code Section 851.91 Permit You to Seal Juvenile Criminal Records?

Sealing your California juvenile arrest records differs from Penal Code Section 851.91. To seal juvenile criminal records, you should follow the procedure per Welfare and Institution Code 781.

Per Welfare and Institution Code 781, you qualify for juvenile record sealing if:

  • You, the defendant, are older than eighteen years, or five (5) years have elapsed since the California juvenile court terminated the jurisdiction,
  • You were not found guilty of a serious crime like robbery, torture, or murder that happened after you turned fourteen years old.
  • You have not been sentenced for a felony or misdemeanor crime of moral turpitude as an adult.

Consult a knowledgeable and experienced criminal defense lawyer to learn whether you qualify for juvenile criminal record sealing.

     2. Is There a Time Limit to Bring Your Petition?

Unlike Penal Code 851.8, Penal Code Section 851.87 has no time limit for bringing your petition.

However, it would be wise to bring your petition immediately after you learn that the prosecution can neither file nor refile the criminal charges.

Your criminal defense attorney should assist you in determining when you qualify for this relief.

     3. Are There Remedies If Any Person Releases Your Sealed Criminal Record?

Inappropriate dissemination of your sealed criminal record carries civil penalties that range from $500 to $2,500. The D.A., Attorney General, or city attorney can enforce the penalties.

The victim is also entitled to file a lawsuit for compensation. They can also receive punitive damages, provided the defendant released the sealed arrest records intentionally or recklessly.

     4. Why Should You Get a Certificate of Detention Instead of Criminal Record Sealing?

Sometimes, when a person comes into contact with the police and is taken to jail, it is not considered an arrest. Instead, it is known as "detention" (Penal Code 849 release).

According to the law, an arrest considered detention should be erased from the Department of Justice's and the arresting agency’s records. Moreover, the defendant is not obligated to reveal their detention to anyone. That means they must consider having their arrest stated as detention instead of sealing it, especially when applying for a professional license, peace officer employment, or public office.

You could receive a Certificate of Detention after your release. In this case, you are neither required to do anything nor reveal your detention to anyone. However, if you did not receive a Certificate of Detention during your release, you can obtain it by sending a letter to the arresting law enforcement authority. Remember to explain why the court should consider your arrest and detention in your letter.

     5. How Does Arrest Record Sealing Differ from Expungement?

The main difference between sealing your criminal record and expungement is that the sealed record still exists, while expungement leads to deleting the arrest record.

A person should file an expungement petition with the court where the criminal prosecution happened. Then the judge will review the petitioner’s case to determine whether they meet the jurisdiction’s requirements before granting or denying expungement.

Find Skilled and Experienced Legal Representation Near Me

Most individuals do not know that having a criminal history and record goes beyond having a previous conviction. Even though you were not charged with a crime, any person that conducts a criminal background check on you can find your arrest on the rap sheet, which could have adverse employment and social consequences. California PC 851.6 allows you to seal your arrest records, including rap entries, booking photos, police reports, and fingerprints. That means you can confidently and legally check “no” if anyone asks you whether you have previously been arrested.

Without skilled legal assistance, sealing a criminal record can be challenging. The legal team at Los Angeles Criminal Lawyer can review your case, ensure all relevant paperwork is filed correctly, represent you in court, and work aggressively to ensure you obtain the most favorable case outcome. Please contact us at 310-502-1314 to schedule your initial consultation and learn how we can help you.