Sealing Arrest Records

As mentioned earlier, criminal background records are public records that can essentially be accessed by the anyone. If everyone (your current or future spouse or girlfriend,  current or future employer, renting agencies, insurance providers) has access to your criminal records, you will find a form of discrimination that is often associated with criminals. The individuals reviewing your arrest record may conclude that you are a dangerous person without knowing the facts of your case. Even though employers are prohibited from discriminating against individuals with arrests that did not end in a conviction, they may still do so without necessarily making a statement.

The benefit of having this information sealed is that it removes this information from the public eye. After you seal your arrest, any information surrounding the arrest including court records, police reports, fingerprints, and photographs will be out of reach of public view. The few entities that can access this information include the State of California and agencies of law enforcement.

Sealing an arrest will allow you to enjoy the freedom of having a clean criminal background record. If you believe you are being discriminated against because of the information on your record for your criminal background, you are encouraged to speak with a local attorney about sealing your arrest information. Individuals who seal their records will:

• Enjoy the freedom to truthfully and lawfully state on any private job or housing application that they have not been arrested
• Be able to apply to more jobs allowing them greater earning potentials
• Be able to apply for loans
• Under PC 851.8 the individual could enjoy having the arrest removed from their permanent criminal background record
• Prevent private employers from viewing their arrest or court records
• If you had been wrongfully arrested the statement will appear on your background record until you do something about it. For an analysis of your case, contact a local attorney.

In the state of California, there are two ways in which an individual can petition to seal their arrest records. As mentioned earlier, having an arrest record sealed means that your arrest or charges in a courtroom are sealed from the public viewing. Prior to January 1st, 2018, to seal an arrest record the individual had to file a petition through California Penal Code 851.87. This penal code describes a longer process for sealing arrest records than the new law that was adopted as of January 1st, 2018. As of 2018, individuals have the capacity to file a petition through California Penal Code 851.91 which offers a much cheaper and time efficient sealing process.

Under California Penal Code 851.87, when an individual is arrested with no conviction, they are capable of sealing their arrest information if they complete a pre-filing diversion program to prove they will be law-abiding and “productive members of society”. This penal code was effective as of January 1, 2014, and prior to this extension of the law, the penal code only addressed court records and convictions. The law states that an individual is capable of having their records sealed two years after the completion of a pre-filing diversion program. After having gone through a pre-filing diversion program (a program that attempts to fix the unlawful behavior that led to an arrest in lieu of a filing an accusatory pleading), the individuals will have the opportunity to file a petition to the court. The individuals will then need to show proof of ‘factual innocence’.

The process under California Penal Code 851.87 would require an attorney who is experienced and capable of representing factual evidence in order to prove your innocence. Upon proving your innocence, the court if obligated to seal your records from public access. The court cannot disperse any information that is sealed to any private entity. Once sealed under PC 851.87, you are legally allowed to say you have never been arrested when applying for housing or employment. However, if you are applying for a government job you will be required by law to disclose your information during the application process.

On the other hand, individuals looking to seal their arrest may process their petition through a newer law that was enacted on January 1, 2018. California Penal Code 851.91 promises a much cheaper and quicker process for individuals who qualify. Under this exact penal code, the person/individual will file a petition and prove that he or she is eligible to apply for this form of remedy. Filing under this penal code means that the individual who was arrested was not convicted in a court of law.

In general, to file through PC 851.91 the individual must:

• Not been convicted of a crime that would justify the arrest
• Have been arrested in the state of California
• Not be waiting to hear from a charge

Upon sealing your records, the state of California must keep this information away from the public access. The information that appears on your DOJ rap sheet will include notes next to the arrest entry specifying that this information cannot be shared with private entities. Any information that is sealed can only be accessed by law enforcement agencies and the state of California.

Once you have sealed your records, when filling out a job or housing application, you will legally be capable of checking ‘NO’ when asked if you have ever been arrested. The only times you will legally be required to check ‘YES’ when asked if you have ever been arrested under PC 851.91, is when you are applying for a government job as a peace officer, public office, or other state or federal agencies.

As mentioned before, filing a petition under PC 851.87 is a lengthy process that requires several motions. Individuals who are filing in the state of California will begin the petition process following completion of a pre-filing diversion program. The petition must be filed in the city or county where the arrest took place o, in the court where charges (if any) were filed.

• The full legal name of the petitioner along with his or her date of birth
• The date of the arrest that the petitioner wants to be removed from his or her criminal record
• The location where the arrest took place including the name of the city and county
• The name of the law enforcement agency that performed the arrest
• If applicable, include the case number or other information pertaining to the arrest
• A description of why the arrest was made

A statement where the petitioner states his right to seal her or his arrest as a matter of civil right or in the best interest of justice. In addition, he or she would have to explain how justice will be served by sealing the arrest information from public view.

If any of the above information is missing from the petition, the court has the right to deny the petition for failure to provide the required information. During the hearing, the petitioner will be responsible for providing enough evidence to prove that he or she is entitled to seal an arrest as a matter of right or prove that it would serve the interests of justice.

The filing and hearing process are crucial moments that require the attention of a law expert. Having an attorney by your side will assure that the petition is filed the right way the very first time and that your case is fairly represented during the hearing. Any mistake during the filing process can and will delay the sealing process. In addition, if during the hearing you are unable to convince the judge that the sealing would service one of the two purposes mentioned above, the judge can have your petition revoked. To make sure your petition and hearing go as planned, make sure to have a trusted local attorney by your side.