It’s a nightmare situation. The police arrest you for a crime you didn’t commit, actual criminal charges are never filed against you or you were never convicted, yet you are forced to explain the arrest on your background check forever. Not anymore!
Before SB393, it was possible to have arrest records sealed, but you had the burden of proving actual factual innocence, which is darn near impossible in most cases. Thankfully, in October of 2017, SB393 was signed into law and now “sealing” that arrest record may be a matter of right if, after your arrest, charges were never filed or if you were never convicted. Once that arrest record is sealed, it will not appear on most criminal background checks. Although courts and law enforcement may still be able to see it, private employers should not, which means no more having to explain a true story to people who won’t believe you.
How it works
SB393 has made sealing an arrest record a matter of right in most situations where either no charges were filed, charges were dismissed, or charges were diverted. You can read the full language of the law here.
California law allows individuals to have their arrest records sealed where, after an arrest, they were able to avoid a criminal charge or conviction by completing a prefile diversion program such as PC1000 or Prop36. However, the new law covers individuals whose cases were dismissed after filing or who were arrested but never charged at all…which happens way more than you might think. That is, if you were arrested and your case was dismissed or never filed, you are likely eligible to have the record of arrest sealed.
There are distinct advantages to having your California arrest record sealed
You already know that your wrongful arrest has had a severe impact on your life and the blemish is almost impossible to hide or ignore. Let’s face it, once you admit that you were arrested, many prospective employers or landlords or lenders are not interested in the rest of the story. However, the new law offers some much-needed and much-deserved relief; it can make that part of your past practically invisible to those people. Imagine the peace of mind.
Having your arrest record sealed will:
- Sealing under PC851.8 will remove that arrest completely from the dreaded “permanent” criminal record.
- Eliminate the arrest from private background checks.
- Make it “legally true” to say “NO!” when asked on a private job application whether you have been arrested.
- Make it possible to get that better job and earn that better money.
- Look much better on that professional license application.
- Make it possible to qualify for student loans or home loans that lead to a better life.
- Allow for better housing assistance eligibility
- Lift the weight and stress that wrongful arrest has created in your life.
There are a few rules, of course.
First, for the period of time while charges can still be filed, this relief is not available. That is, until the statute of limitations has run out, you are not yet eligible for this relief. For misdemeanors that is one year and for most felonies the minimum wait is three years. However, crimes like murder have no statute of limitations, thus an arrest for murder is not subject to this relief – except where there has been a finding of factual innocence. Likewise, if one is never charged with a crime because they intentionally evaded capture or prosecution, by either fleeing the jurisdiction or engaging in identity fraud, relief is not available.
Next, there are certain situations where relief is not automatically available under the new law: where there is a recorded pattern of domestic violence arrests and/or convictions; a pattern of recorded child abuse arrests and/or convictions; and/or a pattern of recorded elder abuse arrests and/or convictions. In these cases, relief may be granted, but only upon a showing that doing so would serve the interest of justice.
How long do you have to file? That depends.
Under the old PC 851.8 you had only two years from either the filing of charges or the arrest, whichever came later, to request relief. However, PC 851.87 does not specify a particular time limit and the laws has yet to be tested. Your best bet is to request relief sooner rather than later – that is, the minute you become eligible. If you are already eligible, there is no good reason to wait.
The law certainly allows anyone to try and do this themselves, but too much is riding on the outcome not to enlist the services of a qualified and aggressive attorney to lead the way.
Although the new law requires that there be forms to fill out to request this relief, there will also be appearances in court where YOU have the burden of proving that you are either entitled to the relief or that the interest of justice would be served by granting the relief and neither is as easy as it sounds. You will have to argue law and points and rationale that is compelling and accurate. Even where you meet your burden of proof, the prosecution then has the burden to argue and prove that you are not entitled to the relief and, standing in court, that can be an ugly fight – they will not want you to win and their lawyers will fight hard against you.
A lawyer who is skilled at dealing with prosecutors and Courts and arguing for deserving clients will know how to navigate the minutia and advance the most compelling argument for the best possible result and get you your life back.
What happens after you win?
At the end of the day, if the Court finds that sealing your arrest record is the appropriate relief, it will issue a written ruling and order that declares the arrest is “deemed to have never happened,” after which it will be a “legal truth” (in most situations) to declare that it never happened on applications for private employment, property rentals, and loans. Keep in mind, even if you get the arrest record sealed through PC 851.91, you may still be required to disclose the arrest if asked on an application for a law enforcement job, if you want to run for public office, when seeking a state-issued professional license (such as nursing, paramedic, real estate, contracting, etc.), or if you want to secure a contract with the Lottery Commission. In those circumstances, you would have to disclose the arrest.
Once granted, the Court will then send the ruling to the Department of Justice ordering that the record of arrest be removed and also order that disclosure of the arrest, or information about the arrest that is contained in other records, shall not be disclosed to any person or entity, except as specified.
After relief is granted, anyone who unlawfully publicly discloses or disseminates information regarding the “sealed” arrest would be subject to a civil penalty up to $2,500 per violation and, in addition, you can sue them for damages.
The new law finally recognizes that not everyone who is arrested is guilty and not everyone who is arrested should be saddled with the stain on their record forever. The new law lets you get on with your life and the fresh start you deserve.
For more information or to get the process started, call today for your free consultation 562-304-5121.