When you get arrested but you do not get convicted of any crime, it is easy to think that all is well. Unfortunately, even without a conviction, a record of your arrest will remain permanently in your history unless you get it sealed. Equally, if you committed an offense as a minor and was convicted of it, many people assume that the record gets automatically sealed once you become of age. Unfortunately, without petitioning to seal your record officially, the conviction will remain on your criminal record.

Having a criminal record negatively impacts your life, especially with potential employers, banks, or landlords. Fortunately, California has laws that allow you to get your background sealed if you have a criminal record due to these two reasons. At Orange County Criminal Lawyer, we have experience in helping our clients have their records sealed, and have a clean slate.

Overview of Record Sealing in California

If, at any one time, you were arrested, the information on your arrest will be permanently available in your record, as earlier discussed. Additionally, if you were charged with an offense that later was dropped or you were found not guilty of it, the charges will remain in your record even when you were never convicted. When your history is tainted and open to the public, it can result in severe repercussions, as earlier discussed.

Fortunately, you can petition the court to seal these records or destroy them. When you win your petition, every record regarding the case, such as photos taken, fingerprints, the arrest of the report, and other information gets sealed. When your record gets sealed, you can confidently say you never were arrested or charged with a crime before. In case potential employers and landlords run a background check on you, the information will not be available to them either.

Ways of Record Sealing in California

There are two ways a record gets sealed in California. Here, we will discuss these ways to determine which method would be best for your case.

PEN 851.8 Record Sealing

In this method of sealing records, there is a requirement to prove the plaintiff’s factual innocence. This can be challenging to prove. The judge, in retrospect, is expected to agree that with all the evidence provided, you were not supposed to get arrested. Additionally, with PEN 851.8, you are required to file for the record sealing within two years from when the arrest happened. If arrested earlier, your lawyer could apply to get a waiver of the time, although it may be hard to get.

Despite this, getting your records sealed under PEN 851.8 is more advantageous compared to sealing them under PEN 851.91, as we shall discuss further. PEN 851.8 allows for the file to be permanently sealed and destroyed. This means your record will never be available in any database accessible to the public, and history ceases to exist.

In comparison, however, getting your record sealed under PEN 851.8 is complicated and needs a lot of input. Having a criminal lawyer will help you in navigating the challenges that come with this type of record sealing.

PEN 851.87 Record Sealing

This second approach of record sealing is based on a more modern law that was effective from 2018. The procedure is more uncomplicated and straightforward. Under PEN 851.87, the only requirement is to show that you qualify for the sealing of your record. You will then petition the court for the relief.

There are, however, few requirements under this to get your record sealed. These are:

  • Your arrest was in California
  • You must never have been convicted out of your arrest
  • The prosecution cannot file charges against you on the same arrest anymore. This means the time they are supposed to bring up misdemeanor or felony charges against you lapsed.

Once your record gets sealed, it will be illegal for law enforcement agencies or the court to share your arrest information with a private party. This means the public will not be able to see your record.

Unfortunately, unlike in PEN 851.8, when your record gets sealed according to PEN 851.87, your responsibility to disclose your history remains, especially when applying for:

  • A job as a peace officer
  • To serve in public office
  • A license from a local or state agency

If, in the circumstances not outlined above, you can claim never to have was arrested, and you will have the right to do so legally. When convinced you did not deserve to get arrested, do not allow the record to remain and affect you, instead engage a lawyer to seal your record.

Benefits of Record Sealing

All criminal or conviction records are public, meaning anyone can see your history. Just a record of an arrest can make people look at you differently without even knowing if you were convicted of the offense or not.

California prohibits potential employers from taking into consideration the arrest of an applicant that never resulted in a conviction. However, an employer can still deny you an opportunity without disclosing it is due to your record.

When your file gets sealed according to PEN 851.87, no member of the public can access it. This means that you will get a job on merit without discrimination due to your record. Additionally, landlords will have confidence leasing their house to you, as well as banks, will not be skeptical in dealing with you.

Who Qualifies to Get their Record Sealed Under PEN 851.87

As earlier discussed, PEN 851.87 allows individuals to seal their records if they get convicted of any crime. An arrest never resulted in a sentence if one of the factors below did apply:

  • The defendant faced no charges on the offense, and the legal period to file charges against the defendant had expired
  • Charges against the defendant were filed and dismissed at a later date
  • The petitioner was found innocent of the charges filed against them
  • The defendant was convicted of the offense, but the sentence was later vacated after an appeal, and it will not get filed again
  • The charges against the defendant was dropped after he completed a pre-sentencing or pretrial program like drug diversion

It is important to note that you can only get your record sealed if you never were convicted of the offense. However, if you were sentenced to a crime, you need to talk to your lawyer to get your record expunged, according to PEN 1203.4.

What the right to have your Record Sealed Means

According to PEN 851.8, the arrestee needed to prove they were factually innocent. However, based on SB393 or PEN 851.87, the prosecutor is the one required to show the arrestee should not have their record sealed. This may be if the arrestee has a domestic violence pattern or may later get charged with the offense.

Having a right to sealing of your records means as long as you never were convicted of the offense, you have a right to get your record sealed automatically.

Who Doesn’t Qualify to Get their Record Sealed?

Not everyone can have their record sealed. In case any of the elements below applies, an individual will not have their record sealed. These are:

  • There is still a chance they will get prosecuted for an offense they had been arrested for
  • The individual was arrested on a murder charge or a crime where there is no limit as to when to bring charges against them. However, if the individual was found innocent or acquitted, they can have their record sealed.
  • The individual fled the jurisdiction where they were arrested to avoid charges
  • The individual obtained another identity fraudulently to avoid being prosecuted and later charged with identity fraud

Domestic Violence Pattern concerning PEN 851.87

There are cases where a person is not allowed to cover their record in California as their right. If your criminal record indicates you have a pattern of:

  • Child or elder abuse and
  • Domestic violence

You are not eligible to automatically have your record sealed as a right. A pattern, as defined under PEN 851.91, is where a person has at least two convictions or a minimum of five arrests in three years.

However, these individuals are still permitted to petition to get their record sealed if it will be in the interest of justice. To determine this, the judge will consider some relevant factors that may include:

  • Challenges faced by the plaintiff or defendant because of the arrest
  • Evidence or declarations speaking to the character of the petitioner
  • Evidence or statements of the arrest
  • The record of conviction of the petitioner

Using a Sealed Record within the Law in California

The sealing of history is designed to destroy it to avoid using it for various reasons. However, the record is not entirely gone. If the defendant gets prosecuted for another offense, the sealed record may get pleaded and proven in the current case.

Sometimes, during regular duties, a law enforcement agency may see and reveal the arrest record to other agencies of law enforcement but still state it sealed.

Sealing of a record does not, however, excuse the defendant from:

  • Carrying on with existing duties such as registering as a sex offender according to PEN 290
  • Being barred from holding a public office legally as a result of the arrest
  • Being prohibited against having or owning a gun or any conditions set forth from a previous felony conviction with a gun
  • Disclosing the arrest record if applying for public jobs or seeking a license from a licensing agency as earlier discussed.

The Process of Sealing Records in California

If you want to have your records sealed, you must follow a particular procedure to ensure you get your history destroyed. This process is as follows:

Filling a Petition in Court

While filing a record sealing petition, it must get done either:

  • At the court where the charges for the arrest had been filed or
  • In the county or city where the defendant was arrested if charges had not been filed

After submitting the petition, it must get served to the prosecutor at the county or city where the defendant was arrested. The agency that arrested the petitioner must also get served with a copy of the petition. There is certain information that must get included in the request. This includes:

  • The name of the petitioner and the date he or she was born
  • The arrest date for the record to be sealed
  • The county and city where you were arrested
  • The agency that arrested the petitioner
  • Any relevant information that identifies the arrest like the court or case number
  • The supposed offenses that the petitioner was arrested for
  • A statement indicating the need for the sealing of the petitioner’s record for purposes of serving justice or as a right
  • A statement indicating how sealing history will serve justice

Hearing for Record Sealing

In case the district attorney’s office contests your petition, the judge will pick a date for a hearing. Your lawyer will advise you if you are required to present yourself in court, or he or she will represent you. During the trial, your arrest record will get analyzed by the judge, and if there is evidence as to why the sealing will serve justice.

The judge is at the discretion to award or deny the petition to seal your record. This makes it crucial to hire an experienced attorney who will conduct thorough research of your case and ensure all the necessary documents get availed. Your lawyer will also present your case in front of the judge to get your motion granted.

How Long it Takes to Seal a Record

Typically, once a petition to seal records has been filed, it would take approximately ninety days to have your arrest record sealed.

After the court grants the motion, it will have thirty days to notify the relevant entities such as:

  • The agency that carried out the arrest
  • The agency tasked in controlling the criminal master record history and
  • The California Department of Justice

The petitioner’s criminal record, as well as the court’s history, will be updated to indicate that the arrest record is sealed. The file gets stamped, and the record kept confined to the sector on criminal justice.

The local agency responsible for enforcing the law will make sure the information is updated in each master copy, both manually and digitally. All police records will also be updated to show that history has been sealed.

The police report on the investigation, arrest record or court records that have been sealed cannot be exposed to any other entity apart from:

  • The petitioner that had their record sealed
  • A criminal justice agency that even when they use sealed information, they will take into account that the history is sealed

What Happens if a Sealed Record gets Disclosed

If a sealed record is shared improperly, the entity responsible will get fined for the violation. Typically, each offense gets fined from $500 to $2,500. The district attorney or city attorney may be responsible for enforcing the fine.

The petitioner whose record was exposed may institute a lawsuit to get compensated for the damages of presenting it. If the information was released intentionally or recklessly, the petitioner might sue to receive punitive damages.

Sealing of Juvenile Records

The sealing of records in California is only for files that a person has not received a conviction for or if you have a juvenile record. As earlier indicated, most people with juvenile records don’t know that their records don’t disappear once they reach eighteen.

When you file a petition to seal your juvenile records, the request may be granted under the welfare and institutions code 781. Here, your file gets closed, and the documents therein are assumed never to have existed. These records will no longer be accessible by the public.

One of the primary reasons why the sealing of juvenile records is allowed by the law is to avoid more stigma against an ex juvenile offender. When your juvenile records get sealed, you can answer in the negative any of the below questions:

  • Were you arrested at any point in your life?
  • Do you have a criminal background?
  • Is your record sealed?

Every report that was made against you as a juvenile or court recordings will get sealed from the public. Some of the records that will get sealed include:

  • Records of your arrest
  • The sentencing received for the offense you were found guilty of committing
  • Probation reports about you
  • Any exhibits

Proceedings in a juvenile court don’t typically get considered to be criminal. This means even when you were convicted in a juvenile court and declared a ward, you don’t have a conviction in your criminal record. This means, even when your files don’t get sealed, you can still claim to have never had a criminal conviction.

Reopening Your Juvenile Records

Even when your juvenile records are sealed, they can get opened under two circumstances. These are:

  • If you are involved in a civil lawsuit that includes defamation, you may get your sealed records reopened. When reopened, the record can get used as evidence against you in the current suit. Once the offense you are facing gets resolved, your juvenile records will get sealed again.
  • The DMV may allow an insurance provider to access your record on driving to get evaluated for your risk and eligibility to have auto insurance.
  • A prosecutor can also access your sealed juvenile record when exculpatory evidence is needed to be found for a criminal offense.

Destroying Juvenile Records after they are Sealed

Once your juvenile records are sealed, they most likely get destroyed. However, the court can decide to have your records retained but under extraordinary circumstances. Your sealed records will get destroyed when:

  • Five years have elapsed from when your records get sealed. This is when the juvenile court declared you a ward for because you were habitually disobedient or
  • On turning 38 years if you were said to be a ward because of participating in crime

Benefits of Sealing your Juvenile Record

When you get your record sealed WIC 781, you will benefit from various things. The benefits include:

  • You can claim to have no criminal record, which is essential when seeking loans from banks, employment, applying to college, or seeking professional licenses, among other opportunities
  • You will not get discriminated against in the job market, neither will inquiries be made regarding your sealed record
  • If you had been required to get registered as a sex offender, once your record gets sealed, you will not be required to
  • You will have personal satisfaction as a person starting fresh and not clouded by mistakes of the past

Eligibility to Seal your Juvenile Records

For you to qualify to have your juvenile records sealed, the elements below must be true:

  • You are over 18 years old, or the juvenile court jurisdiction where you were convicted was terminated five years or more
  • You were convicted of an offense involving moral turpitude as an adult
  • The court looks at your record and believes you were reformed and
  • You have no civil case that is pending as a result of your juvenile activities

Sealing your Juvenile Records When You Were Never Convicted

Aside from the eligibility discussed above, you were arrested for an offense as a minor and:

  • You were released because the prosecution had no sufficient evidence against you
  • The charges get dismissed, or you never were convicted of the offense or
  • You had an acquittal for the allegations

If this is the case, you can petition the court to have your juvenile records sealed at any time. This means that you do not have to be eighteen to get the records sealed.

The Procedure for Sealing Your Juvenile Records

When you decide to seal your juvenile records, the process may take you 8 to 10 months. Your petition to seal the records should get filed at the juvenile court where you were last convicted. Your lawyer is allowed to represent you through the process, but sometimes, the judge may require to talk with you.

Once your petition is filed, the judge sets a hearing date. The judge evaluates the request and the evidence you have submitted or submitted by other agencies or by any other person with relevant information. Once the court has reviewed everything, it will either:

  • Grant your petition to seal your juvenile records and copies of the order is sent to the relevant agencies or
  • Deny your request to have your record sealed

In order to avoid denying your petition, it is advisable to have a lawyer draft it for you and file it. Your lawyer can ensure that all the court requires is provided, and argue your case well in the hearing.

Find a Criminal Lawyer Near Me

An arrest for a crime is almost as bad as when you get convicted of an offense. The repercussions of having an arrest record or a juvenile record in your background can negatively affect you. Getting your record sealed to avoid these consequences is the best thing you can do for yourself. Sometimes, the petition to seal your record may get denied on a technicality. This means that you need to get a lawyer conversant with the laws for record sealing to file the petition on your behalf. At Orange County Criminal Lawyer, we have extensive knowledge in record sealing and can help you with yours. Reach us at 714-262-4833, and let us help you get your record sealed.