How You Can Seal Your Arrest Record Under Penal Code Section 851.87
On October 11, 2017, Governor Brown signed into law S.B. 393which revised the Penal Code to allow certain individuals to petition the court to seal their arrest record if certain conditions are met. S.B. 393 is codified in several code sections, including Penal Code § 851.87.
Arrest records, unlike criminal records, are recorded and kept by the police. Every time a police officer runs your identity, or you submit to a background check, your arrest record will show up – even if no charges were filed or the arrest was a mistake. Arrest records follow you even if you didn’t do anything wrong and, before S.B. 393, the process for sealing arrest records was difficult.
When Can You Seal and Seal Your Arrest Record?
You are eligible if:
- No criminal charges were filed;
- Criminal charges were filed but dismissed;
- You were found not guilty (i.e. acquitted) in a jury trial;
- Your conviction was overturned or vacated on appeal; or
- You completed a pre-sentencing or pre-trial diversion program.
However, requests to seal arrest records can still be denied if the person arrested has a criminal history that includes arrests and/or convictions for child abuse, domestic violence, and/or elder abuse.
Why Was S.B. 393 Passed?
Before S.B. 393, individuals who were arrested but not convicted (i.e. charges dropped or dismissed) could not file to seal their arrest and criminal record. The burden was on the individual to prove that he was factually innocent (meaning the burden was on you to prove you were innocent, rather than on the prosecution to prove you were guilty).
Arrest records appear in background checks for jobs, housing applications, etc. which led to discrimination against individuals who were never charged or had charges dropped.
S.B. 393 switches the burden from individuals to prosecutors. All you have to show is that you were never convicted of the charge; then it is up to the prosecutor to show that you are not entitled.
Why Should I Bother with Sealing My Arrest Record?
Criminal records are public, anyone can access them; a potential employer, a potential landlord, insurance companies, licensing agencies, even a date you met on Tinder. Also if the arrest was a mistake or the charges were dismissed, the mere appearance of an arrest influences people’s perceptions – especially if they don’t have a personal relationship with you. Sealing your arrest record removes it from the public domain; so only criminal justice agencies in limited situations can access it.
Are You Eligible?
You are eligible to seal your arrest record if your arrest did not result in a conviction. For example:
- You were released without any charges being filed;
- The charges against you were dropped by the prosecution;
- The judge dismissed the charges;
- The jury returned a verdict of “not guilty;”
- Your conviction was overturned on appeal; or
- The charges were dismissed after you completed a pre-sentencing or pre-trial diversion program. For example, a Penal Code 1000 deferred entry of judgment or Prop 36 drug treatment program.
What If Your Arrest Resulted in A Conviction?
If your arrest resulted in a conviction, the process is now called “expungement.” Under Penal Code § 1203.4, you can get your arrest and criminal record expunged, however, the process is far more stringent and onerous.
What Did the Law Change?
Under the old rule, Penal Code § 851.8, the person who was arrested had the burden of proving that he was factually innocent; meaning, that you didn’t actually commit the crime. The new rule, Penal Code § 851.87 shifts the burden from the person arrested to the prosecutor. So, now the prosecutor has to prove that the arrested person does not deserve to have their record sealed.
The law carves out specific examples, such as elder abuse, child abuse, and domestic violence. These cases are difficult to prove because the witnesses know their abusers and are often intimated by them, therefore, are reluctant to give testimony. Everyone else is entitled to have their record sealed as a matter of right.
Who Can’t Have Their Record Sealed?
You are ineligible to have your record sealed if:
- The prosecutor may still bring charges against you;
- The arrest was for a serious crime with no statute of limitations (a statute of limitation is the time-limit the prosecutor has to bring charges) unless you were acquitted in a jury trial. For example, murder has no statute of limitation;
- You evaded arrest;
- You evaded the prosecutor by stealing someone’s identity and the prosecutor subsequently charged you with identity fraud; or
- Your record demonstrates a pattern of abuse.
Basically, if you were arrested for a serious crime or tried to evade arrest – you can’t get your record sealed.
What Is A Pattern of Abuse?
A pattern of abuse is defined as two or more conviction or five or more arrests within a three-year period. Basically, if your criminal history shows a pattern of abuse for domestic violence, elder abuse, or child abuse, it is harder for you to seal your record.
You can still get your record sealed but you must show that doing so “serves the interests of justice.” In determining if sealing the record serves the interests of justice, the judge may consider:
- Your record of convictions;
- The hardship caused to you by the arrest;
- Evidence or testimony regarding the arrest; and
- Evidence or statements regarding your moral character.
Can A Sealed Record Still Be Used?
Yes, but in limited situations. However, the sealed record is effectively destroyed for the vast majority of cases. For example, petitioners:
- Must continue registering as a sex offender;
- Are prohibited from holding public office that results from the arrest;
- Are prohibited from owning firearms;
- Are required to disclose the arrest in the following situations:
- Applications for public office;
- Applications for licenses from a state agency;
- Contracts with the State Lottery Commission; and
- Applications for employment as a peace officer.
Moreover, criminal justice agencies may access the sealed records in the “regular course of its duties” to the same extent as it would if the record had not been sealed. For instance, police departments may access sealed records in the course of criminal investigations.
Finally, keep in mind that sealing the record only applies to the specific arrest – it does not erase your entire criminal record. You have to submit separate petitions for each arrest that did not result in a conviction. So, if you have three arrests that did not result in convictions, you must submit three separate petitions to seal your arrest record.
Is There A Deadline?
Under the old rule, you had to two rules to file a petition to seal your record. Under the new rule, there is no time limit. However, it is recommended that you file your petition as soon as you can.
How Long Does It Take for The Petition to Go Through the System?
It takes about ninety (90) days for your petition to work its way through the system. Within 30 days, the court will notify the (1) law enforcement agency that made the arrest; (2) the law enforcement agency that administers the master criminal history records; and (3) the California Department of Justice.
Once the petition is accepted, the master criminal history record agency will update the record to note that it is sealed and may not be released to the public. The local law enforcement agency ensures that this note is applied to all investigative reports and other reports that the record is sealed and may not be released to the public. Once sealed, the records are only released under two circumstances:
- A criminal agency reviewing the information in the regular course of its duties; or
- The person whose arrest was sealed.
What Is the Process To Seal Your Record?
First: File the Petition
The petition to seal your record must be filed in either (1) the court where the charges for the arrest were filed or (2) if charges weren’t filed, in the city or county where the arrest took place. After you file your petition, you must “serve” it on the prosecutor of the city or country where the arrest took place and the law enforcement agency that made the arrest. “Service” refers to the legal process of providing the documents to the required person or agency. Service must be affected by someone over 18 and has to be personally dropped off at the agency.
When you file the petition, you must include the following information:
- Your name and date of birth.
- The date of the arrest which you are trying to seal.
- The city and county where the arrest took place. For example, Los Angeles, Los Angeles County.
- The name of the law enforcement agency that made the arrest.
- Other information that would identify the arrest, i.e. a case number.
- The alleged offense(s) on which the arrest was based.
- A statement that you are entitled to get your arrest sealed as a matter of right or, if you are otherwise ineligible, in the interests of justice.
- Finally, if your petition is based on the interests of justice, you must submit declarations (i.e. written testimony) stating how justice would be served by sealing your record.
Second: Attend the Hearing
Once the petition is filed, one of two things will happen, either, the prosecutor will concede the petition and your arrest will be sealed or the prosecutor will contest it and a hearing will be scheduled. If a hearing is scheduled, it will be in the county where you live, and you are required to appear or have an attorney appear on your behalf.
At the hearing, the judge will examine your arrest record and, if necessary, evidence regarding the interest of justice. For example, the judge will consider declarations submitted on your behalf and testimonials given by the prosecutor.
The judge has much discretion to grant or deny your petition, so it is critical that you present a strong case at your hearing. Moreover, the judge can dismiss your petition with prejudice (meaning, if you lose, you can never re-file your petition). If a hearing is scheduled, you should retain Leah Legal, a Los Angeles criminal defense attorney to assist you.
What Happens If Your Sealed Record Is Released?
If your arrest record is improperly released, there is a mandatory civil penalty of $500 to $2,500 per violation (each release is a violation, so if it is emailed to 10 people, it could be $500 x 10 (for 10 emails) = $5,000). The penalty is enforced by the district attorney, city attorney, or the Attorney General.
If you’re affected, you can bring a suit for compensatory damages if the release harmed you (i.e. you lost out on a job or housing opportunity). If the release was intentional or reckless, you might be able to seek punitive damages.
Sealing Arrest Records vs. Sealing Juvenile Records
Sealing an arrest record under Penal Code § 851.87 is a different process from sealing juvenile records. You can seal your juvenile record if:
- You’re an adult or the jurisdiction of the juvenile court ended five years ago (meaning juvie court hasn’t been able to determine your case for at least five years);
- You haven’t been convicted of any crimes of moral turpitude (i.e. crimes of immoral behavior or dishonesty); and
- There are no pending civil suits derived from the juvenile record.
Finding a Record Sealing Attorney Near Me
Do you want to seal your arrest record? Would you like to find out if you're eligible? Do you have pending criminal charges? Then give Leah Legal a call at 818-484-1100 or visit our website to learn more.
At Leah Legal we coordinate our defense strategies with multiple attorneys to ensure that you get balanced representation and experience; there won’t be any blind spots in our strategy. We are available 24 hours a day, seven days a week. We offer free criminal defense consultations, accept cash, checks, and credit cards, and are available for weekend/evening appointments.