Prior to the passage of a recent California law in 2017 (Senate Bill 393), many people who were arrested for allegedly committing a crime, but were never criminally charged had to petition a court for an order declaring their factual innocence (Penal Code section 851.8). Other people were arrested and charged, but their cases were later dismissed, and they were forced to do the same thing in order to have their arrest record sealed. Obtaining an order of factual innocence is very difficult and burdensome to acquire. Thanks to the new law, the process to have an arrest record sealed is now fairly simple and straight-forward.
The new law (Penal Code section 851.87(a)) states that a person has the right to have an arrest record sealed so long as the arrest did not result in a criminal conviction, under any of the following circumstances:
- no charge(s) were filed, and the statute of limitations has expired for filing the charge(s)
- charges were filed, but later dismissed and cannot be refiled
- charges were filed, but the defendant was acquitted (“not guilty” at trial)
- the defendant was convicted, but conviction was vacated on appeal
- charges were dismissed after the defendant successfully completed a diversion program.
For individuals who have a “demonstrated pattern” of domestic violence, elder abuse or child abuse by prior arrest or convictions, they may still apply to have their current arrest record sealed “in the interests of justice”. However, if the person suffers from the following situations, they are not eligible to have their arrest sealed:
- he/she can still be charged for the offense
- the arrest involves an offense for which there is no statute of limitations
- the person intentionally evaded law enforcement efforts to prosecute the person
- the person engaged in identify theft to avoid prosecution and was subsequently charged for identity theft
It should never be taken for granted that a judge will grant a petition to seal an arrest record even when “all the boxes” have been checked. The motion should be in writing and filed with the court in which the defendant was originally sentenced, even if the judge who imposed the sentence is no longer on the bench or is now retired. The motion must be filed with the court and served on the prosecutor’s office at least 15 days before the hearing date on the motion. This rule is to allow the prosecutor time to respond to the motion; either to object to the request or to inform the court of any discrepancies that may exist.
The motion should be prepared by an experienced attorney, who is familiar with drafting such motions. The attorney will include a statement of facts and most importantly, lay out the compelling reasons why the court should grant the motion. A declaration should also be included and signed by the client affirming the reasons set forth in the motion. At the hearing on the motion, a well-prepared attorney should anticipate any objections by the prosecutor so that he/she will be able to overcome those objections, if any. In many cases, the attorney can “sound out” the prosecutor’s views before the motion is even heard on the record.
If the motion to seal an arrest record is granted, the judge will sign an order stating such. Additionally, the court clerk will notify the law enforcement agency that was involved with the arrest and the California Department of Justice (DOJ) so that the client’s record will be updated to reflect the arrest sealing. Arrest records that are sealed cannot be disclosed to any person or entity, except when the arrestee has an obligation to do so, such as seeking public office or employment as a peace officer, licensing by a state or local entity, or contract with the California State Lottery Commission.While a motion to seal an arrest record can provide a tremendous lift to a client’s chances for a new job opportunity or position, it is important to discuss and confirm his/her eligibility for the legal relief, as well as all the information required to be included in the motion.