Sealing Arrest Records
Not everyone that is arrested and charged with a crime is guilty. There are people who are wrongfully arrested and thereafter, their cases are dismissed because they are innocent. Charges can also be dropped because of the lack of sufficient evidence to convict the defendant. When this happens, it is important to know that the arrest records will still be there and could pop up in case a criminal background search is done on you. Fortunately, California law allows people who have been previously arrested but never sentenced to have their arrest records sealed. With the help of the LA Criminal Defense Attorney, sealing your arrest records can be a very quick and efficient matter in Los Angeles, California.
What Does Sealing Arrest Records Entail?
Criminal accounts are usually public accounts and so, anyone can have access to them. This means that your criminal history can leak out, which includes all your arrests, even when you were wrongly arrested. While this may not be a reason to worry for some people, people who are seeking employment, those who want to enjoy better insurance rates and those who want to live in better neighborhoods are some of the people that could be affected by this.
First of all, prospective employers are always keen on the kind of people they are bringing aboard, especially for top management positions. A person with a criminal record may not be considered for a top job in most companies despite their high qualifications, denying such a person an opportunity to grow their career and earn a better living. Apartment owners may also consider your criminal records before they can allow you to lease or rent.
These are some of the reasons why sealing criminal records, as provided in Section 851.87 of the California Penal Code, is an important move. Once this is done, all your criminal arrest records will not be available to the public and so, no one will access them.
The kinds of criminal records that one can seal include photos, fingerprints, and investigative reports from the police, arrest records and court records among others. The records will, however, be available for use by California State or the criminal justice organizations. When your request to seal your criminal record is approved, a judge will order them to be kept secret, unless there is a special court order requiring an entity to access the records.
The New SB-393 California Law
The state of California passed a new law named SB-393 to enhance it's Penal Code Section 851.91. The law, which took effect in January 2018, allows a person to petition the court to seal arrest records in their name in almost all cases. Sealing of arrest records is important for many people, for instance, those who were arrested, given a court date and thereafter told that the complaint was never filed and so, the case was rejected. A person in such a situation has to prove that they are actually innocent of the charges levied against them for their arrest records to be sealed.
Benefits of Sealing Arrest Records
Contrary to what many people think, when a criminal case is dismissed, the accused’s records of arrest will still be filed and can be accessed by any person with an interest in them. A dismissed case does not mean that people will never find out that you were arrested at one time in your life and what you were arrested for. When the case is dismissed, it means that you are not criminally liable to the offense which you were arrested for. After that, you have about two years after the day of arrest to file a petition or dealing with your arrest records. The seal is like a guarantee that your arrest has been expunged or erased from your criminal record.
There are a lot of people who will be interested in a person’s criminal records to ascertain whether or not that person can be trusted. These are for instance potential employers, the general public, the government, insurance companies, and landlords among others. Even if you were never guilty of the charges you were arrested for, these people will want to know details about your arrest and the facts of the case in order to decide how to interact with you. There are so many things that could possibly go wrong in your life if your arrest records remained unsealed.
Sealing of arrest records guarantees that all the facts in your case will seem as if they never occurred and that you can comfortably answer no to any question about the criminal engagements. If in the future there never comes a time such records will be needed, that part of your life will go away forever as if it never happened in the first place.
People whose cases were closed out rather than dismissed can seal their arrest records too. This will, however, take some time and will depend on the crime that they were convicted of.
Does an Arrest Record Affect a Person’s Life?
Any criminal record you have will show information relating to your ID, details of your arrest, charges that were levied against you, convictions (if any), DNA and fingerprints among other details. This is information that is obtained and entered into records when you are arrested and arraigned in court for a crime you are alleged to commit. A criminal record, however insignificant it might seem, is capable of affecting your life for many years to come, which is why it should be sealed as soon as possible.
For people who travel a lot, for instance, border officials will always want to know if you have a criminal record and deny you entrance into their country if you have a serious criminal record.
Most senior jobs in the country today are taken by people with no criminal record. Employers will always request a check for a criminal record before hiring, just to be sure that they are bringing an employee with integrity into their company. People with a criminal record are finding it hard to find employment these days. If for instance, you are looking for a job in a government organization, your job application may be turned down for a criminal record before they consider you for employment.
When one is dealing with family issues especially those that concern child custody, a judge will always consider both parents’ criminal record to judge their personality. A criminal record may be ready evidence to show that your character is not reliable and this will affect the way your rights to custody or visitation will be granted. The same is done for people who are considering adoption. If you have an arrest record, you will not fully qualify to adopt a child.
Some institutions are disqualifying students with a criminal background from taking up certain courses such as security, medicine, childcare and those that involve money including accounting and banking.
If you have a criminal background and you commit another offense, the judge will pronounce a steeper penalty than a person who is a first-time offender. Even if you got a light sentence in your first conviction, a second sentence will feature increased penalties and will automatically include a jail sentence.
When to Seal Arrest Records
From the above reasons and many others that have not been mentioned, it is a necessity to seal your arrest records so they cannot fall into public hands. There are different timelines provided for the sealing, depending on the nature of the arrest and the crime you have been arrested for. If your case was closed and not dismissed, there are general timelines to petition the court to seal your records.
Under the California law, a petitioner has at least two years after the date of their arrest to file a petition for the seal of their arrest record. However, Section 851.87 of the California Penal Code does not, generally, have any time limits for the petition. However, it is recommended to file a petition as soon as it becomes impossible for the prosecutor to file or even refile charges. An experienced attorney can easily advise you on the best time for this.
The Kind of Situations that Qualify for a Record Seal
Note that not all arrests qualify for sealing. The people who qualify to apply for the sealing of arrest records are:
Those who were arrested but there were no charges filed against them by the end of the statute of limitation provided for that kind of offense
Those that were arrested and charges were filed against them but the charges were dismissed afterward and cannot be re-filed
Those who were arrested and charges filed against them but the arrestee was acquitted thereafter
Those who were arrested and convicted but the conviction was reversed or vacated and the charges could not be re-filed
For such cases as above, a petition is granted by the court as a matter of right but it could be denied for charges that relate to the following:
Child abuse and related offenses
Domestic violence and related offenses
Elder abuse and related offenses
If you have been arrested for any of the above offenses and you have two or more convictions of the same offense or five or more arrests for the same offense, but for separate cases that occurred in separate occasions within a timeframe of three years, your petition for sealing of arrest records will be denied.
However, if there is just one similar arrest or similar conviction but of a different case that happened in a different situation, there is a possibility of your petition being accepted. This possibility will be based on the interest of justice. Whether or not the judge will agree to your petition will be determined by:
The suffering that was caused by the arrest
Declarations or any evidence that could prove good character on your part
Declarations or any evidence that pertains to your arrest
Records that show lack of criminal convictions before and after the arrest
The Step-by-Step Procedure of Sealing Your Arrest Records
Filing a petition
The very first thing to do if you want to seal your arrest records is to file a petition in the courts where the charges centered on your arrest were filed. This could also be done in the county or city where the arrest took place if there were no charges filed. You need the help and support of an LA criminal defense attorney in this, as he/she will be required to convince the judge with facts that you are indeed innocent. If the facts presented by your attorney are accepted, your petition will be accepted and your arrest records will be sealed for three years. After three years, the arresting law enforcement organization will destroy the records.
The petition should have this information:
The name and the birthdate of the petitioner
The date of the arrest, for the record you are petitioning to seal
The county or city where the said arrest happened
The name of the agency that made that arrest
Any other relevant information that could help identify the particular arrest such as the case number or the court number
The supposed crime, which the said arrest was made or the said charges were filed.
If the request for sealing of arrest records is made based on the interest of justice, there should be a statement in the petition explaining how the said interests of justice will be served when the application is granted.
If on the other hand the arresting organization denies the petition or it doesn’t respond to the matter in two months, you can file an appeal with the Supreme Court which would have authority over the case. A copy of that petition should be sent to the prosecutor ten days before the set date for the hearing.
There will be an inquiry if the prosecutor challenges the petition and so, the judge will set a hearing date. You could attend the court session in person to follow the proceedings or you could allow your criminal defense lawyer to appear in your place. During the proceeding, the judge will scrutinize the arrest records and if applicable, the evidence presented to verify that the sealing was done for the best interests of justice.
The judge has total freedom of choice in determining whether or not to grant your petition to close out and later on destroy your criminal records. For this reason, you need to hire the services of a well-skilled and experienced LA criminal defense attorney. Note that the judge may decide to deny your petition with prejudice, and with that, you will not be able to re-file your appeal again.
A good attorney will take time to thoroughly study your case to make sure that all the paperwork has been done accordingly so as to speed up the matter and also to minimize chances of your petition being denied. A smart attorney will conduct the Sealing of Arrest Records hearing and argue your case before the judge to make certain that your petition is granted.
Remember that the big burden will be on you, the petitioner, in proving that you are actually not guilty of the crime upon which you were arrested. Together with your attorney, you should be able to convince the court that there is no rational cause to consider that you are guilty. The court, in this case, allows the petitioner to present any proof that will support their guiltlessness, including affidavits, declarations and police reports among other forms of evidence.
The District Attorney can contest the evidence your attorney presents. He/she may also present evidence such as testimonies from the arresting officers or witnesses, just to refute your claims.
The presiding judge will keenly follow the proceedings and after the hearing, he will either allow or reject the petition. If the judge grants the petition, a court order will be issued by the judge, requiring the Department of police, the State’s Department of Justice and the prosecutor’s office to seal and do away with all your arrest accounts and any document that is related to the case. They should not leave out any hint of the arrest and so, no one should ever know that you were ever arrested.
How Long Does Sealing of Arrest Records Take?
In California, it takes about three months to seal and destroy arrest records after you have filed a plea to get a legal ruling for that effect. Within the first month, after the court has ordered the sealing of your arrest records, notice about the order will be sent to the law implementation organization that made the arrest or other agencies that took part in the arrest. The court will also notify the law implementation organization in charge of administering the records for the chief criminal history. Notice will also be sent to the State’s Department of Justice.
After that, both your court record and master criminal record will be updated to show that the arrest record has been sealed. Your file will be marked to show that no record about your arrest will be leaked outside the sector of criminal justice.
The local law enforcement organization responsible for the arrest will ensure that the information about the sealing will be applied in all the master copies and digital copies, including the report, form the investigative police that relates to the arrest in question.
After all this, all court records and police reports that have been sealed under Section 851.87 of California Penal Code will be made inaccessible to the members of the public except:
An agency of criminal justice- such an agency is allowed by law to use the evidence therein with an equal degree just as if the record of arrest was never sealed.
Can a Sealed Record be Released?
This is one of the many things that worry people as far as the sealing of arrest records is concerned. Unfortunately, this is something that can happen. However, the law provides that any improper release of any sealed arrest should be penalized through a civil fine of an amount ranging from $500 to $2,500 for every violation. This penalty could be imposed by the Attorney General, a DA or a city attorney.
The affected person has a right by the law to sue for compensation in case the leak was done intentionally or recklessly.
However, note that any sealed record can legally be used in California. Even though the sealing is sometimes viewed as completely destroying the arrest records, the case does not entirely disappear and the records could be used legally if need be.
The sealed arrest can, for instance, be appealed and proved if you are later on prosecuted for another offense. In addition to that, criminal justice agencies may regularly and in the course of their duties access and if necessary disclose the arrest to other law enforcement agencies just as if the record had never been sealed.
Sealing of an arrest record will also not protect the petitioner from:
Any existing requirement to register as a sex offender as per Penal Code 290 of California Law
Any legal ban that you could have against holding a public office which could have resulted from the arrest
Any ban against possessing or owning a firearm or vulnerability to being convicted for violating the law against felon with a firearm
The duty to disclose the arrest as required by law while responding to a direct question or when applying for a public office, license by any state or local agency, employment as a peace/protected officer, a contract with the state’s lottery commission.
It is important to note that the sealing of arrest records will only apply to the specific arrest that the petitioner has applied for. A successful petition will not erase all your criminal records. If this is what you want, you will be required to file a separate petition for every arrest on your record that you did not get convicted for.
If you are being charged with a crime feel free to contact our Los Angeles Criminal Defense Lawyer for a free consultation.