Can My California Arrest Record Be Sealed?
SB 393: An act to amend Sections 851.87, 851.90, 1000.4, 1001.9, and 11105 of, and to add Sections 851.91 and 851.92, to the Penal Code, relating to arrests. Approved by Governor Jerry Brown on October 11, 2017. Filed with the Secretary of State October 11, 2017. Effective date January 1, 2018.
You have an opportunity for a great job, or you have found the perfect apartment. You begin to fill out the application and you come to the dreaded “check the box” question that asks “Have ever been arrested?” Even though you were never convicted on the charges for your arrest, the arrest is visible and you would want to mark “yes” to that question unless you were able to get your arrest record sealed. Prior to the enactment of California Senate Bill 393, known as the CARE Act (Consumer Arrest Record Equity), a showing of factual innocence was required in order to have your arrest record sealed and destroyed [See Penal Code Section 851.8]. A finding of factual innocence is such a high burden of proof that it results in a large number of those arrested without a conviction choosing not to file the petition or in cases where the petition is filed many times it is denied. The CARE Act provides a much needed remedy to the inequity of having to explain an arrest which did not result in a conviction. The CARE Act was designed to provide another avenue to seal an arrest record.
The CARE Act applies during the following situations:
- You were arrested but no charges filed;
- You were arrested and the case was dismissed;
- You were arrested and acquitted by a jury;
- You were arrested and convicted, but the conviction was vacated or reversed on appeal and the charge(s) may not be refiled; or
- You were arrested, but the charges were dismissed after successful completion of a pretrial or pre-sentencing program [See Penal Code Section 851.87 (a)(1)].
The CARE Act makes the sealing of records granted as either a matter of right or in the interest of justice. Thus, there is no longer a requirement of factual innocence. As a result, in many cases, your motion to seal your arrest record will be granted. Ultimately, you would then be afforded the right to answer “no” to the question “have you ever been arrested,” and avoid explaining the circumstances surrounding that arrest.
Please note, not all arrest records will be provided relief under the CARE Act; exceptions do apply. You are not eligible to seal your arrest record under Penal Code Section 851.91 if any of the following apply:
- The petitioner can still be charged with any of the offenses resulting from the arrest (i.e. the statute of limitations has not run, or the prosecuting agency can still refile);
- The petitioner was charged with murder or any other serious offense which does not have a statute of limitations (exception if the person was acquitted or found factually innocent);
- The petitioner intentionally evaded efforts to prosecute the arrest by absconding the jurisdiction; or
- The petitioner intentionally evaded efforts to prosecute the arrest by engaging in identity fraud.
Further, your matter will not be sealed as a matter of right and you will be required to show that sealing would serve the interest of justice if the arrest was based on the following:
- Domestic violence, if the petitioner’s record demonstrates a pattern of domestic violence arrests, convictions, or both;
- Child abuse, if the petitioner’s record demonstrates a pattern of child abuse arrests, convictions, or both; or
- Elder abuse, if the petitioner’s record demonstrates a pattern of elder abuse arrests, convictions, or both.
Upon filing of the petition, a formal hearing is scheduled. The petitioner has the burden of showing that the arrest record must be sealed as a matter of right or that the interest of justice would be served. Upon meeting this initial burden, the burden shifts to the prosecution to establish why the petition should be denied should the prosecutor possess information as to why it is not in the public’s interest to seal.
Should your arrest record be sealed under the CARE Act, the Court will notify the Department of Justice that relief was granted and issue an order to the prosecuting agency and law enforcement agency that the “arrest has been sealed as to petitioner, the arrest is deemed not to have occurred, the petitioner may answer any question relating to the sealed arrest accordingly, and the petitioner is released from all penalties and disabilities resulting from the arrest, except as provided in Penal Code Section 851.92” [Penal Code Section 851.91 (e)].
The following conditions will still require that the arrest be disclosed even after the sealing of your arrest record:
- An employment application with law enforcement;
- Licencing by state or local agencies;
- Contracting with the California State Lottery Commission; and
- A public office disclosure form.
Petitioners should be advised that an attorney skilled in combating prosecutorial challenges, clarifying components of the law, and advocating for client rights can be essential to a favorable outcome. If you have an arrest you would like to seal or have questions about whether you qualify under the CARE Act contact Attorney Kellee Parker at Parker Law Center today for a free strategy session at (800) 805-8804.