SEALING AND DESTROYING YOUR ARREST RECORD IN ORANGE COUNTY – PC 851.87 & SENATE BILL 393

On October 11, 2017, Governor Jerry Brown signed Senate Bill 393 into law.  While sealing an arrest record has long been an option in California, SB 393 has made it much more accessible.  The resulting PC 851.87, now allows, as a matter of right, individuals who meet the following criteria to have their Records sealed:

  • Those who were arrested, but did not have criminal charges filed against them;
  • Those who were arrested and had criminal charges filed against them, but the charges were later dismissed;
  • Those who were acquitted, or found not guilty, at trial;
  • Those who convictions were overturned on appeal;
  • Those who successfully completed either a diversion program, or deferred entry of judgment program.

Keep in mind, however, you record will not be sealed a s a matter of right, if you have a history of arrests / convictions for the following offenses:

  • Child Abuse;
  • Elder Abuse;
  • Domestic Violence.

While your record will not be sealed as a matter of right, the Judge will still have discretion to seal your record in these circumstances. 

If you or someone you know is looking to have their arrest record sealed, contact one of our attorneys today.  At the Orange County Record Expungement Attorney Law Firm, will know what it takes to seal your record.

 

THE BENEFITS OF SEALING YOUR RECORD UNDER PC 851.87

As you may know, criminal and arrest records, are public record.  This means they can be accessed by anyone.  This includes background checking agencies, and prospective employers.  However, once your record has been sealed, they will no longer be public record.  Only limited exceptions will allow certain agencies to access your records, once they have been sealed.  As such, having your records sealed can greatly increase your chances of advancing your employment, or finding a new job. 

 

WHY SB 393 WAS PASSED

Prior to SB 393, individuals who were arrested but not convicted were at a completely unfair disadvantage.  Even though the prosecution never fulfilled their burden to prove the defendant guilty, the burden was still on the arrestee to prove to the Judge that their record should be sealed.  Doing so was often difficult, and resulted in many individuals having unnecessary arrests on their record.  This would lead to unfair discrimination during, during the hiring process, to individuals that had not even been convicted. 

This new law shifts the burden back to the prosecution.  This means the prosecution must argue as to why your record should not be sealed, rather than you arguing why it should.  

 

PC 851.87 ELIGIBILITY

Pursuant to PC 851.87, you are eligible to have your criminal arrest record sealed, if you fall into any of the following categories:

  • You were arrested, but not charged with a crime, and the statute of limitations has run for the prosecution to file charges;
  • Charges were filed, but they were later dismissed;
  • Charged were filed, but you were found to be not guilty;
  • You were convicted of the offense, but your conviction was later reversed on appeal;
  • You successfully completed a diversion program, or deferred entry of judgment program.

 

WHAT DOES IT MEAN THAT YOUR RECORD WILL BE SEALED AS A MATTER OF RIGHT?

Essentially, this means that the burden lies with the prosecution to prove as to why your record should not be sealed.  Once you have proven that you fall into one of the categories discussed above, unless the prosecution can show good cause as to why your record should not be sealed, the court should seal your record as a matter of right. The key thing to remember is that your arrest must not have ultimately led to a conviction.  

 

WHO IS NOT ELIGIBLE TO HAVE THEIR ARREST RECORD SEALED IN ORANGE COUNTY?

If you fall into any of the following categories, it is very important to consult with one of our attorneys to determine whether or not your record can be sealed:

  • If it is still possible that you be charged with a crime for the arrest you wish to have sealed;
  • If you were arrested for a crime in which there is no statute of limitations;
  • If you were not charged with a crime because you intentionally fled from the jurisdiction in which the offense occurred;

 

PATTERN OF DOMESTIC VIOLENCE AND PC 851.87

In addition to the circumstances discussed above, you are not entitled to have your Record Sealed as a matter of right if your record exhibits a pattern of:

  • Domestic Abuse;
  • Elder Abuse; or
  • Child Abuse

“Pattern” is defined vaguely, but certainly requires two or more offenses.  If you do have a pattern of these offenses on your record, you may still qualify to have your record cleared.  You just do not have the privilege of having it cleared as a matter of right.  It is important to consult with one of our attorneys if you fall into this category, as the chances of having your record cleared will vary, on a case by case basis.  The Judge will have to consider a number of factors in determining whether or not to seal your record.    

 

WHEN CAN YOUR SEALED RECORD STILL BE USED?

While sealing your record destroys it for nearly all intents and purposes, there are some limited circumstances in which your record can still be accessed:

  • It may be used against you, in some cases, if you are being prosecuted for a subsequent offense;
  • It may also be disclosed from one law enforcement agency to another.

 

HOW LONG DO I HAVE TO SEAL MY ARREST RECORD?

Prior to SB 393, you only had two years to from the date of your arrest to file charges.  Currently, there is not deadline for sealing your record.  However, keep in mind that this law is still very new, and has not been thoroughly tested in court.  As such, it is highly recommended that you have your record sealed sooner, rather than later.  Ideally, you should file just after the statute of limitations for your case has run.  Your attorney will be able to assist you in determining the appropriate time to file. 

 

THE PROCESS OF SEALING YOUR CRIMINAL ARREST RECORD

FILING THE PETITION

The process generally begins by filing a petition with the court.  The petition should be filed at the court in which the case filed, or would have been filed. 

Both the prosecuting agency and the arresting agency must be served with a copy of the filing. 

It is best to have your attorney draft the petition for you, as there is a lot of important information that must be included.  Some of this information may be difficult to obtain and will require your attorney to contact the court and arresting agency. 

THE HEARING

If the petition is contested by either the District Attorney, or the arresting agency, then a hearing will be held in front of the Judge.  At the hearing the Judge will have a lot of discretion in determining whether or not your record should be sealed.  Your attorney will be able to provide arguments on your behalf as you why sealing your record would be in the interest of justice. 

 

HOW LONG DOES THE PROCESS OF SEALING YOUR RECORD TAKE IN ORANGE COUNTY?

Typically, it will take about ninety days, from the date that your petition is filed, for your record to be sealed.  Once the court has issued the order to have your record sealed, the court will notify the arresting agency and the department of justice. 

 

WHAT IF MY RECORD IS SEALED, BUT IT IS LATER RELEASED?

If you have sealed your record, and it is later disseminated, the agency that released it could be civilly liable.  Improper dissemination could be punishable by a fine of up to $2,500.00 per violation. The Attorney General, a District Attorney, or a City Attorney can all enforce the violation.

 

WHAT IF I WAS CONVICTED, AND AM NOT ELIGIBLE TO HAVE MY RECORD SEALED?

If you were convicted, you may not be able to have your record sealed.  If this is the case, it is still important that you contact one of our attorneys, as we may be able to assist in other ways.  For example, and expungement is a great way to have a conviction removed from your record.

 

JUVENILE RECORD SEALING

One of the most common questions we get, is how to seal a juvenile record, and whether or not it’s something that occurs automatically.  In order to qualify for your juvenile record sealed, you must:

  • Now be 18 years of age or older (You can be under 18 if five years has passed since the juvenile court’s jurisdiction has passed);
  • You were not convicted of an offense involving moral turpitude;
  • You were not convicted of a “particularly serious” offense.

Despite what most people think, your juvenile record does not seal automatically once you turn 18.  Rather, you must receive an order fron the court, under WIC 781, to have your record sealed and destroyed. 

There are a number of benefits to having your juvenile record sealed.  It can drastically increase your chances of finding a job, and will often prevent the mistake you made while you were young and immature from being used against you as an adult. 

 

GOVERNOR’S PARDON

In some cases, an expungement or arrest record sealing may not be feasible.  Even so, there may be other options to clear your record.  For example, we have been able to help many of our clients obtain Governors’ Pardons.

In California, a Governor’s pardon can be issued to those who have been “rehabilitated” of a crime.  If granted, most of the penalties associated with the conviction will be relieved.  

There are a number of reasons to apply for a Governor’s pardon.  Some of the most common reasons include:

  • Restoring 2nd Amendment gun rights;
  • Job opportunities;
  • Impact on requirement to register as a sex offender;
  • Impact on obtaining professional licenses;
  • Immigration issues.

Once enough time has passed, nearly anyone convicted of a crime can request a Governor’s pardon.  Generally, you must wait 7-10 years from the date probation/parole is completed.  Additionally, the applicant must not have been convicted of any new serious crimes.  The standard the Governor’s office looks for in granting pardons, is “exemplary behavior” since the applicants conviction. 

 

CERTIFICATE OF REHABILITATION

A Certificate of Rehabilitation will not erase your criminal record.  Rather, it is an order from the court indicating that you are now rehabilitated, and a law abiding citizen.  A Certificate of Rehabilitation comes with many of the same benefits as a Governor’s pardon.     

Some benefits of a Certificate of Rehabilitation include:

  • Improved chances of being issued a State license;
  • Potential relief from duty to register a sex offender.

With regard to sex offender registration, so long as the defendant is not on probation, parole, or in custody, a Certificate of Rehabilitation will relive them of their duty to register, unless their conviction is for one of the excepted offenses. 

You may be eligible for a Certificate of Rehabilitation if:

  • You are no longer on felony probation;
  • You have lived in CA for the past five years;
  • You have not been incarcerated since the completion of your sentence;

 

CONTACT THE RECORD EXPUNGEMENT ATTORNEY LAW FIRM TODAY TO HAVE YOUR RECORD CLEARED

Our experienced attorneys are standing by to assist you with your case.  During your free consultation, we will determine how to best clear your record.  Whether it be by sealing your record, or petitioning for a Governor’s pardon or Certificate of Rehabilitation, our attorneys our equipped to handle your case.  Our firm focuses exclusively on record clearing cases.  Chances are, we have handled a case very similar to yours. 

Don’t spend one more day allowing your criminal record to slow you down.  There are a number of things that can be done to help you pass that upcoming background check or job interview.  Contact the Record Expungement Attorney Law Firm today at 714-627-5727.